The U.S. Constitution and Money

by Michael S. Rozeff

Introduction to Edwin Vieira, Jr.’s Work on Money

This article outlines what the U.S. Constitution’s clauses and references to money mean. Itexamines constitutional money from a legal perspective. It does not examine money and bankingfrom an ethical, economic, or political point of view. The idea is simply to set down in theclearest terms possible what kind of money is legal in the U.S., according to the Constitution, andwhat kind of money is not.My source of information on this subject is Dr. Edwin Vieira, Jr.’s 1,722 page opus

Pieces of Eight.

The second edition appeared in 2002, and all references in this article are to the secondedition. This article summarizes the first 177 pages of Vieira’s work. I have found it necessary attimes to insert explanatory material in order to provide a self-contained narrative. All errors ininterpretation of his work are solely mine.Vieira’s book (in two volumes) may be found in law and other libraries, but it is out of print.Even if it were in print, it would not provide everyday reading for most Americans because it islong and complex. Vieira summarizes and extracts from his work in his many articles and talks.This article adds to and endorses that work. It summarizes a small portion, far from all, of whatVieira conveys to us concerning the U.S. Constitution and money.Dr. Vieira is a lawyer who specializes in constitutional law. He has argued or briefed cases before the Supreme Court. He holds four degrees from Harvard. This does not suffice to makehis work authoritative. It is the work itself that does that.

Pieces of Eight

goes into the legalityand constitutionality of all the major issues and cases in American monetary history. It analyzesthem in detail with ample excerpts from original documents. It contains the highest level of scholarly citation, footnotes, and referencing that anyone might demand. Its arguments aremasterly and logical.The knowledge of the Constitution and money that is conveyed in

Pieces of Eight

is separatefrom taking a particular political position on the Constitution. None is taken here, not on itsviability, nor its validity, nor on anarchism vs. minarchism, nor on what should or should not bedone about existing conditions and constitutional violations. All positions on the politicalspectrum, of which there are many, may possibly benefit from understanding what theConstitution says is the law of the land and what is not. Whoever wishes reform of money withina constitutional framework will have to come to grips with the understanding of the system thatVieira conveys.

Vieira’s View of Constitutional Meaning

Vieira begins by spelling out and justifying his view of constitutional interpretation in general.This preliminary is absolutely essential. For example, the Constitution uses the term “dollar” in

several places. What is a dollar? The Constitution was drawn up with great care. We have to presume that the framers knew what was meant by a dollar. Vieira therefore asks the question:What is a dollar? Those who propose a

living

Constitution say that each generation or eachSupreme Court or government defines the dollar as they see fit, and each definition isconstitutional. By contrast, the

original meaning

concept says instead that the dollar means whatthe average educated person of the time when they were being asked to ratify the Constitutionthought it to mean. It turns out that the constitutionally legal meaning of the dollar that is found by looking at its original meaning is something quite definite. We today are then legally bound by that meaning. It turns out then that a Federal Reserve dollar bill is legally (by constitutionallaw) not a dollar at all.One finds original meaning by examining the language and logic of the Constitution, the then-contemporary meaning of words, the legal precedents prior to its passage, the then-current legaland political understanding, and history.What if it is the case, which it is, that we are not acting in accordance with the constitutionallylegal meaning? What if our government is giving us an unconstitutional money and/or WE THEPEOPLE accept such a money as constitutional when it is not? Then the possibility of legalreform opens up. But if a convincing case is made for what a constitutional dollar is, then itconstrains

everyone

. It constrains both those who support unconstitutional money and moneylaws and monetary reformers who support new alternative measures. Both face legalrequirements that cannot be ignored.Vieira does not subscribe to the notion of a living Constitution, that is, a document whose words,language, and ideas are perpetually reinterpreted by successive generations, in ways that areforeign and hostile to the document’s original intent. He subscribes to the idea that theConstitution has an original meaning or original intent that holds unless and until theConstitution is amended to alter that meaning.Why is original meaning important and essential? We need to understand the original meaning of what the Constitution says, for that tells us how it should have been construed and applied fromthe beginning. In turn, that enables us to see how it may have been or has been misapplied by our governments and us Americans in the past so as to give us an unconstitutional money andmonetary system. If we do not maintain the doctrine of original meaning, then we have noobjective way to evaluate the constitutionality of laws.Vieira connects both the Articles of Confederation and the Constitution legally to the Declarationof Independence. For details, see his articleBedrock of the Constitution. His legal view is thatWE THE PEOPLE ratified the Constitution through special state conventions. In so doing we putit forward for ourselves, as its preamble declares. We meant it, among other things, to protect our rights as affirmed in the Declaration. We created a federal system of government in which stateshad certain powers, and certain other powers were enumerated and lodged in the government wecall the United States of America or just the United States or the federal government. In all of this, the earthly power and sovereignty rests with WE THE PEOPLE. Governments are our agents to serve our purposes according to this compact, and we ourselves pledged to live by this

compact, only changing it by the amendment procedures in the document itself and not by either legislative law or judicial rulings or executive actions.

Arguments for Original Meaning

Let’s now go through the arguments that support interpreting the Constitution by reference to itsoriginal meaning and not adhering to the living Constitution idea.To begin with, the doctrine of original meaning is logically necessary if the Constitution is to actas a constraint on government action. The Constitution is supposed to give rise to a governmentthat protects the rights that are declared in the Declaration. To determine if a law is notunconstitutional and infringing on rights or if the government is doing something it has nowarrant to do, we

have to

refer to the meaning of the Constitution, i.e., we have to refer to itsoriginal intent or meaning. If we deny that such a fixed meaning is present or, at our pleasure,read new meanings into the Constitution that are not there, then we are denying that there is anobjective check and balance that we are using to protect our rights. If we do that, then we aredenying both the legal legitimacy and the practical efficacy of the Constitution as an instrumentthat institutionalizes the fixed principles of the Declaration that found the nation.. This meansthat those in government are being empowered or allowed to pass any laws they wish to pass,including laws that abrogate our rights. And so unless there is original meaning, we end up withthe contradiction that we have a Constitution that is really not a Constitution that protects rights.Four more arguments support the doctrine of original meaning. One is that in 1787 this doctrinealready existed for hundreds of years. The second is that since the Constitution was new in 1787,it could have had no meaning to Americans of the time but what its original intent was. Third, astime passes and more and more of the Constitution’s provisions have to be understood moreexplicitly, any doctrine other than original intent creates legal confusion; for if subsequentgenerations adopt ever-changing standards of construing the Constitution other than originalmeaning, then instead of the Constitution being the controlling law, such things as fashion,whim, power, interest groups, and fads become the controlling law. Such a process denies theConstitution. Fourth, the Supreme Court itself, up until the late 1900s, repeatedly, in case after case after case, acknowledged the concept of original meaning.One more argument favoring a Constitution of fixed meaning is that since all governmentofficials take oaths of affirmations “to support the Constitution,” there must be something fixedto “preserve, protect and defend.” One cannot support, preserve, protect, and defend only the procedures of government. The Constitution is not an empty shell or blank check whose legalcontent is filled in by lawmakers and compliant courts. It enumerates specific powers as well asinvolves specific disabilities or absence of powers, and these are designed to protect rights.

Living Constitution Faulty

The concept of a living Constitution that is prevalent today is actually anti-Constitutional or anti-rights in nature, i.e., at bottom it is a totalitarian concept. If what the Constitution means changesdepending on changing political, social, economic, and cultural fashions, ideas, and agendas,