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To Regulate the Value of Money

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"To Regulate The Value Of Money" An Analysis Of The Power Of Government To Create And Set A Value On Money
By

Edwin Vieira, Jr. Introduction On its face, the present "legal" monetary system of the United States is simple.1 The "legal" money supply consists of two parts: (i) a paper currency-almost exclusively Federal Reserve Notes (FRNs), which are "issued at the discretion of the Board of Governors of the Federal Reserve System for the purpose of making advances to Federal reserve banks;”2 and (ii) a metallic currency-primarily base-metallic coins, which circulate freely through the economy; and silver and gold coins, which people hold in preference to FRNs and base-metallic coinage, perforce of Gresham's Law.3 Emphasis on the term "'legal' money supply" is necessary, because many economists consider that the "'economic' money supply" includes all bankdeposits in addition to paper currency and coin. Legally, however, bankdeposits are actually only debts the banks owe their depositors, not money—which is always an asset in and of itself, never someone's liability.4 If the structure of the present monetary system is simple, nevertheless there are many peculiarities within it. First, no statute of the United States defines FRNs as "money" in either a legal or an economic sense.5 Title 12 of the United States Code - which, revealingly, deals with "banks and banking,” not "money" - refers to FRNs as "advances" to Federal Reserve Banks, and as "obligations of the United States" which are "receivable * * * for all taxes, customs and other public dues,” and which "shall be redeemed in lawful money on demand at the Treasury Department of the United States or at any Federal Reserve bank.”6 Thus, the very statute providing for their issuance makes crystal clear that: FRNs are not true "money,” because they are defined as "advances" to Federal Reserve Banks and "obligations of the United States"-that is, instruments of debt, not assets. FRNs are not constitutional "Money"7— the medium of exchange highest in contemplation of law because a statute is required to make them "receivable * * * for all taxes, customs and other public dues" at all. And FRNs are not even "lawful money,” because they are "redeemable in

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lawful money,” which they could not logically be were they themselves "lawful money.” In Title 31 of the United States Code, which deals with money and finance,” FRNs are declared to be "legal tender * * * for all debts, public charges, taxes and dues," along with all "United States coins and currency.”8 This however, makes FRNS, not legal "money,” but only a statutory substitute for "money" denominated in "dollars,” in which units "United States money is expressed.”9 That is, FRNs of a nominal face value in "dollars" can, perforce of the "legal-tender" law, be substituted by a debtor, over the creditor's objection, for the "dollars" of money the debtor has obligated himself to pay.10 Indeed, the "legal-tender" provision itself makes clear that the concepts "money" and "legal tender" have no necessary connexion, in that the statute also declares that "[f]oreign gold and silver coins are not legal tender for debts"-although the Constitution with equal clarity presumes that such coins are "money,” when it delegates to Congress the power to "regulate the Value * * * of foreign Coin;”11 and when it disallows the States from "mak [ing] any Thing but gold and silver a Coin Tender in Payment of Debt,” without any distinction between domestic and foreign "Coin.”12 The question that naturally arises from all this is, "On what possible basis do the American people think that FRNs are legally money'?" Second, the interrelationship of silver, gold, and base metallic coins in the monetary statutes is, to say the least, anomalous. Depending on which statute one consults, Congress has seen fit to define a "dollar" as eight and one-tenth grams of coined copper and nickel, one-fiftieth of an ounce of coined fine gold, or one ounce of coined fine silver."13 That all these coins are "legally" (by virtue of statute, if not the Constitution) "money" may be accepted for purposes of argument. The question nevertheless remains, "On what basis can each coin of a radically different substance be at one and the same time legally a single `dollar's'-worth of `money'?" Third, most Americans who study the economy are aware that the Federal Reserve System constantly concerns itself with manipulation of the purchasing-power of FRNS, primarily through fixing interest rates or the required levels of bank-reserves. The rationale for these activities is that the central bank desires to maintain a "stable price level.”14 Historically, the Federal Reserve System has failed miserably in this endeavor, as the purchasing-power of FRNs has dropped steadily since World War II in terms of gold, silver, and all common commodities.15 However, almost everyone in the Establishment-from the Board of Governors of the Federal Reserve System, to Congress, to the President, even to supposed "hard-money" critics who argue that the Federal Reserve

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System should "target" interest rates, the money-supply, or some other economic variable by reference to the price of gold-accepts the existence of a power in the central bank to change the purchasing-power of FRNs at will. The question nevertheless remains “What is the legal basis for the assumed power of the Federal Reserve System to change-primarily to depreciate, but to alter in any direction-the purchasing power of its paper currency?" After the fundamental question of "What is a dollar'?"16, the three most important issues in the area of monetary law are: 1. 2. What is the constitutional source and character of money? What is the constitutional rule for valuation of one form of money against another? And, 3. What authority--if any--does the government possess to manipulate the purchasing-power of money? All of these questions are answered in Article 1, Section 8, Clause 5 of the Constitution, which provides that Congress shall have the power "To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;” and in Article 1, Section 10, Clause 1 of the Constitution, which provides (in relevant part) that "no State shall * * *coin Money; emit Bills of Credit; [or] "make any Thing but gold and silver Coin a Tender in Payment of Debts.” Analysis I. In analyzing the Constitution, the best place to start is at the beginning: the pre-constitutional common law of England and her American colonies. Pre-constitutional English common law is the most important legalhistorical source of the meaning of many constitutional provisions.17 During the late 1700s, Blackstone's Commentaries18 was the most satisfactory exposition of the common law of England available to Americans.19 Blackstone's discussion of the English monetary powers was detailed: Money is an universal medium, or common standard, by comparison with which the value of all merchandize may be ascertained: a sign, which represents the respective values of all commodities. Metals are well calculated for this sign, because they are durable and are capable of many subdivisions: and a precious metal is still better calculated for this purpose, because it is the most portable. A metal is also the most proper for a common measure, because it can easily be reduced to the same standard in all nations: and every particular nation fixes on it its own impression, that the weight and standard (wherein consists the intrinsic value) may both be known by inspection only.

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The coining of money is in all states the act of the sovereign power; for the reason just mentioned, that its value may be known on inspection. And with respect to coinage in general, there are three things to be considered therein; the materials, the impression, and the denomination. With regard to the materials, sir Edward Coke lays it down, that the money of England must either be of gold or silver; and none other was ever issued by the royal authority till 1762, when copper farthings and half-pence were coined by King Charles the second * * * . But this copper coin is not upon the same footing with the other in many respects * * * . As to the impression, the stamping thereof is the unquestionable prerogative of the crown * * *. The denomination, or the value for which the coin is to pass current, is likewise in the breast of the king * * * . In order to fix the value, the weight and the fineness of the metal are to be taken into consideration together. When a given weight of gold or silver is of a given fineness, it is then of the true standard, and called sterling metal * * * . And of this sterling metal all the coin of the kingdom must be made, by the statute 25 Edw. III c. 13. So that the king's prerogative seemeth not to extend to the debasing or enhancing the value of the coin, below or above the sterling value* * * . The king may also, by his proclamation, legitimate foreign coin, and make it current here; declaring at what value it shall be taken in payments. But this * * * ought to be by comparison with the standard of our own coin; otherwise the consent of parliament will be necessary.20 Thusly, Blackstone elaborated five monetary principles the common law-First, the precious metals gold and silver are "proper" for money, the "universal medium, or common standard.” Second, the "intrinsic value" of a coin consists of "the weight and standard,” that is, the amount of precious metal it contains. Third, the "coin of the kingdom" must consist of gold or silver "of the true standard,” in terms of weight and fineness. Or, under English common law prior to 1789, the only true "money" possible was undebased "gold and silver coin.” Copper could be coined; but "this copper coin was not upon the same footing with the other [i.e., gold and silver]"-that is, did not have the same legal basis. Fourth, the common-law power to coin money by "impression" or "stamping,” and to "fix the value" or "denomination" thereof was an executive, not a legislative power.21 Fifth, to “fix the value" of domestic or foreign money meant to establish its "intrinsic value" by comparing "the weight and the fineness of the [precious] metal" in a coin with "the true standard, * * * sterling metal.”

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This procedure precluded "debasing or enhancing the value of the coin, below or above the sterling value.” Self-evidently it presumed a definite and fixed standard-for, if the standard itself could be changed at will, "debasing or enhancing the value of the coin" would follow automatically. English common law also records the traditional method of furnishing the country with "Money": the "free coinage" of gold and silver. Free coinage had a long history, extending from at least the rein of Henry V, during which Parliament enacted "that all they that will come to the Tower of London, thereto have money of new coined, they shall have money coined, and thereof shall be delivered within eight days, according to the very value of that that they shall bring thither, paying the seignorage and coinage [at specified rates],and no more.”22 In the reign of Charles II, Parliament went even further. Finding "[t]hat the Plenty of current Coins of Gold and Silver of this Kingdom is of great Advantage to Trade and Commerce,” it decreed that "whatsoever Person or Persons, Native or Foreigner, Alien or Stranger, shall * * * bring any Foreign Coin, Plate or Bullion of Gold or Silver, into his Majesty's Mint* * * shall have the same there assayed, melted down and coined with all convenient speed, without any Defalcation, Diminution or Charge for the Assaying, Coinage or Waste in Coinage,” the costs of such coinage to be borne by special impositions on certain imports.23 By these statutes, Parliament surrendered all but its police power over money, retaining only the authority to certify by impression that domestic silver and gold coins had a particular weight and fineness of precious metal—in effect, applying to money the same control it exercised over the standardization of weights and measures.24 The political and economic significance of this policy was immense: The principle of free coinage has proved its practical worth as a deterrent to debasement and depreciation. Where coinage is on private account there is no profit to the state in tampering with the standard * * * . The circulation of coins of similar appearance and denomination but of uncertain standard, the arbitrary and unpredictable modifications in the standard of autocratic government, the temptations to profit which were constantly dangled before despotic rulers—these were evils which had perplexed and harassed society and hindered the natural growth of economy since the days when coined money first appeared. By a stroke they were swept away. At the same time, the institution of free coinage, by giving stability and character to one of the chief instruments of organized economy, made possible a more vigorous and healthy commercial life * * *25 Finally, pre-constitutional English common law teaches that the power over money includes no license to interfere with free trade in the precious metals,

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or to confiscate silver or gold from their holders. This is important, because it strikes from the hands of government one means for manipulating the general "price level"—namely, controlling the supply of the precious metals available for circulation in the marketplace as "Money.” As early as 1663, for example, Parliament recognized that "several considerable and advantageous Trades cannot be conveniently driven and carried on without the Species of Money or Bullion,” and recounted the finding of "Experience, that ['Money or Bullion'] are carried in greatest abundance (as to a Common Market) to such Places as give free Liberty for exporting the same.” Therefore, "the better to keep in and increase the current Coins of this kingdom,” Parliament declared it "lawful to and for any Person or Persons whatsoever, to export * * * all Sorts of Foreign Coin or bullion of Gold or Silver, * * * without paying any Duty, Custom, Poundage or Fee.”26 By this act, Parliament abandoned any claim to control the money markets through intervention in the international flow of the precious metals. Revealingly, Parliament explained this policy as in aid of "keep[ing] in and increas[ing] the current Coins of this Kingdom.” Moreover, the Parliamentary statute providing for free coinage under Charles II indicated a further inherent limitation in governmental power over money: the disability to seize the people's silver and gold. Realizing the need "for the further Encouragement and Assurance of such as shall bring any Gold or Silver into his Majesty's * * " Mint * * * to be coined,” Parliament enacted "[t]hat no Confiscation, Forfeiture, Seizure, Attachment, Stop or Restraint whatsoever shall be made in the said Mint * * * of any Gold or Silver brought in to be coined * * * upon any * * * Account or Pretence whatsoever.”27 By this act, Parliament denied the King any opportunity to misuse his prerogative over coinage to expropriate silver and gold from private citizens who had entrusted it to his custody for the purpose of minting. II. Such was the common law with respect to coinage when the Declaration of Independence removed Parliamentary control from the Colonies. The newly independent States immediately claimed full power to coin money, to emit paper currency (or "bills of credit,” as paper money was then styled, redeemable in silver coin (generally, Spanish milled dollars), and to make such currency "legal tender" in payment of debts. In the Articles of Confederation, the first organic law of the United States, the States delegated to the Continental Congress both a power as to coinage—"the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective states,” and a power as to paper currency—"to borrow money, or emit bills on the credit of the united states.”28 Exercise of the power of the States and of the Continental Congress to emit

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bills of credit resulted in economic disaster.29 In response, the Constitution explicitly deprived the States of the power to "emit Bills of Credit,”30 and implicitly deprived Congress of that power.31 The Continental Congress' exercise of the coinage and "regulating" power, conversely, paralleled the common law. As early as 1776, Congress began to create a national system of silver and gold coinage. Still optimistically presuming that "the holders of bills of credit * * * will be entitled * * * to receive * * * the amount of said bills in Spanish milled dollars, or the value thereof in gold and silver,” a committee of the Continental Congress recognized that the value of such dollars is different in proportion as they are more or less worn, and the value of other silver, and of gold coins, * * * when compared with such dollars, is estimated by different rules, and proportions in these states, whereby injustice may happen to individuals, to particular states, or to the whole Union * * * , which ought to be prevented by declaring the precise weight and fineness of the Spanish milled dollar * * * now becoming the Money-Unit or common measure of other coins in these states, and by explaining the principles and establishing the rules by which * * * the said common measure shall be applied to other coins * * * in order to estimate their comparative value.32 The committee then suggested the "principle" that all silver coins * * *ought to be estimated * * * according to the quantity of fine silver they contain,” and "all gold coins * * * according to the quantity of fine gold they contain and the proportion * * * which the value of fine gold bears to that of fine silver" in the marketplace.33 By this "rule,” the committee established a table of values of various silver and gold coins relative to the Spanish milled dollar.34 In 1777, a congressional committee further recommended That a Mint be forthwith established for coining money * * * [under] a proper plan for regulating the same * * * . That as much Gold and Silver bullion as can be procured * * * be purchased * * * , and that the bullion be coined into money, of such value and denomination as shall hereafter be ordered by Congress. [And] That any person who will bring gold and silver to the mint may have it coined on their own account.35 In 1785, Congress considered a plan proposing the Spanish milled dollar as the "Money-Unit,” and in favor of which it argued that "the Dollar * * *has long been in general Use. Its Value is familiar. This accords with the natural

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modes of keeping Accounts.36 Soon thereafter, Congress resolved "That the money unit of the United States * * * be one dollar,”37 but did not determine the number of grains of fine silver that historically constituted and defined the dollar. In 1786, the Congressional Board of Treasury "concluded that Congress * * * intended [by this resolution to adopt as the 'Money-Unit') the common Dollars that are Current in the United States,” and calculated that "[the Money Unit or Dollar will contain three hundred and seventy five grains and sixty four hundredths of a Grain of fine Silver,” and "will be worth as much as the New Spanish Dollars.” The Board also determined "the Difference that Custom has established between Coined Gold and Coined Silver, in the United States" as a basis for establishing the relative value between coinage of the two metals.38 Thus, the coinage-policy of the Continental Congress paralleled the common-law approach. First, the Continental Congress retained the precious metals, silver and gold, as money. Second, it adopted a physical measure of silver (the Spanish milled dollar), historically fixed in terms of weight and fineness (i.e., "current"), as the national "Money-Unit." Third, it regulated the values of all other coinage comparing the weight, fineness, and customary market exchange-ratios of that coinage to that of the "Money-Unit.” And fourth, it acknowledged the propriety of permitting the market to trade freely in gold and silver, and to determine the quantity of money in circulation through the free coinage of those metals. In this manner, the Continental Congress recognized the Spanish milled dollar as a constant of weight, and refrained even from attempting to interfere with the exchange-ratios among different types of money that the market set. III. Against this historical background, the meaning of the coinage power in the Constitution is—or at least should be—clear. Unfortunately, clarity is about the last attribute of contemporary constitutional interpretation and monetary policy. A. The power "To coin Money" Again, starting at the beginning is best. A correct interpretation of the power "To coin Money" in Article 1, Section 8, Clause 5 is obviously essential to understand the monetary system the Constitution prescribes and which the United States should have today, because that is the only provision in the Constitution that refers to the creation of "Money.” Nevertheless, contemporary constitutional interpretation is a veritable chaos of contending notions on this seemingly simple subject. Indeed, it is easy to find people of all political persuasions who invoke the power "To coin Money" to rationalize governmental creation of any kind of moneyincluding coins of the precious metals (silver and gold), coins of base metals (such as the cupro-nickel "sandwich" coins familiar in America), paper currency redeemable in gold coin (such as FRNs prior to 1933), irredeemable paper currency (such as contemporary FRNS), and even the

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apparently oxymoronic "cashless" money (such as electronic bank-credits). These people theorize that the verb "coin" may be construed to mean "create by any means,” and that the noun "Money" is merely a label for whatever the government whimsically decrees is "money" (a medium of commercial exchange, a medium of taxation, a "legal tender,” and so on). Nothing could be further from the truth. The lineage of Congress' authority in Article I, Section 8, Clause 5 of the Constitution "To coin Money" traces directly to linguistically similar and operatively identical language in the Articles of Confederation—"[t]he united states in congress assembled shall * * * have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective states"39—which was later modified in the Federal Convention of 1787 to the power "To coin Money.”40 Selfevidently, the power of the Continental Congress "of regulating the alloy and value of coin struck" could have applied only to coins, in the strict sense of metallic objects. And no historical basis exists for arguing otherwise. Article I, Section 8, Clause 5 sets out the sole, express grant of power in the Constitution to bring "Money" into existence, and unmistakably limits that power to a single, specific means of achieving its end: the act of"coin[ing].” Nowhere in the Constitution or in any of its antecedents does or did another power exist to "print,” "issue,” "emit,” "make,” "create,” or"declare what shall be" "Money.” Therefore, on its face, the phrase "To coin Money" in Article 1, Section 8, Clause 5 grants to Congress a power that that body can constitutionally exercise only on "Money" that admits of being coined—and thereby constitutionally defines the "Money" of the United States, the "Money" the United States may itself bring into existence, as coin alone.41 For, in constitutional interpretation, "[a]ffirmative words are often, in their operation, negative of other objects than those affirmed.”42 Besides this legal doctrine of expressio unius exclusio alterius, basic considerations of constitutional federalism compel the same conclusion. One of the fundamental principles of American jurisprudence is that the very existence of the Constitution necessarily implies the definite and limited nature of the power of the government of the United States.43 Indeed, by legal hypothesis, the Constitution contains no "independent and unmentioned power[s];” for the contrary assumption would fatally "conflict with the doctrine that this is a government of enumerated powers.”44 Congress—or any branch of the national government—enjoys no undefined and general powers, that some "theoretical government" might possess.45 Instead, every claim of power must find direct support in a constitutional grant, "either in terms or by necessary implication.”46 And the "burden of establishing a delegation of power to the United States is upon those making the claim.”47

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This is especially true in the case of the power "To coin Money,” an authority that belonged to the individual States before the Articles of Confederation, and then the Constitution, limited their monetary jurisdiction.48 Prior to adoption of the Constitution, the Framers recognized only three powers of the States related to money: (i) the power to "coin Money;” (ii) the power to "emit Bills of Credit,” which were paper currencies, redeemable in coin, that circulated in the economy as what contemporary economists would call "money substitutes" or "fiduciary media of exchange;”49 and (iii) the power to declare things "legal tender" for debts denominated in "Money" (that is, to declare that debtors could discharge their debts with things other than the money they owed).50 In the pre-constitutional period, no one admitted an inchoate, general authority in the States to "print,” "issue,” "emit,” "make,” "create,” or "declare what is to be" "Money,” in addition to the specific authorities to "coin Money" and to "emit Bills.” This is obvious from the conjunction of two facts: Article 1, Section 10, Clause 1 limits the States only with respect to the powers "to coin Money" and to "emit Bills of Credit." Since ratification of the Constitution, the States have never attempted to "print,” "issue,” "emit,” "make,” "create,” or "declare what is to be" some form of "Money" other than coins or "Bills of Credit" (for example, a State fiat, irredeemable currency)—a power which the silence of Article I, Section 10, Clause I on that score arguably would allow them to exercise if such power had pre-existed the Constitution.51 Indeed, the only example of a State's purporting to exercise monetary powers after ratification of the Constitution involved the emission of Bills of Credit, which the Supreme Court declared unconstitutional.52 Also telling in this regard is that the Constitution—written by men who well understood the prevailing law—denied the States the authority and granted Congress the power only to "coin Money" in Article I, Section 10, Clause I and Article 1, Section 8, Clause 5, respectively. This exact, literal coincidence of prohibition and empowerment, in conjunction with the Tenth Amendment,53 proves conclusively that Congress received only what the States lost. If the extent of the power of Congress to bring "Money" into existence selfevidently confines itself to coin, the substance of that power defines itself with equal obviousness. Then,54 55 just as now," the verb "coin" in common parlance denoted "fashion[ing] pieces of metal into a prescribed shape, weight, and degree of fineness, and stamp[ing] them with prescribed devices, * * * in order that they may circulate as money.”56 And that the Framers intended the verb to be taken in its strict denotation, rather than in some other, loose connotation, the further reference to "foreign Coin" in Article I, Section 8, Clause 5 renders inescapable, as does the distinction

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Article I, Section 8, Clause 6 makes between the "Securities" (presumably notes, certificates, and other paper evidence of indebtedness) and "current Coin of the United States.” Equally apparent from a comparison of the power of Congress "To coin Money" in Article 1, Section 8, Clause 5 to the disabilities of the States to "coin Money" and to "emit Bills of Credit" in Article 1, Section 10, Clause I is the inescapable constitutional distinction between "coin[ing] Money,” on the one hand, and "emit[ting] Bills of Credit,” on the other. The power "To coin Money,” then, on its face does not include a power to generate "Bills of Credit" in addition to or in lieu of coin, even if those bills are ostensibly redeemable on demand, unit for unit, in lawful coin. This reflects the Framers' understanding that, unlike "Money" itself, a "Bill of Credit" amounts only to a promise to pay "Money,” bottomed upon the government's credit.57 Finally, taken in conjunction with the complementary disability of the States, the power "To coin Money" compellingly imports an authority to furnish and preserve, not to withhold or destroy, a sound system of coinage based on "a uniform and pure metallic standard of value."58 Article 1, Section 8, Clause 5 does not say of what this "metallic standard" should consist—although Article I, Section 10, Clause 1 emphasizes the preeminent place the Constitution provides for silver and gold in its monetary schema; and both Article 1, Section 9, Clause 1 and the Seventh Amendment refer explicitly to the (silver) "dollar.” The heritage of the coinage-power in English common law, moreover, indicates that the "Money" of the United States should be of the same "materials" as the "money of [pre-constitutional] England": "either * * * of gold or silver,” with the use of "copper coin" permitted in limited instances "not upon the same footing with the other [precious metals].”59 Pre-constitutional English common law also indicates that the power "To coin Money" in Article I, Section 8, Clause 5 includes a power to provide for free coinage of silver and gold, financed either through traditional minting-charges or by other special taxes or dues.60 If, therefore, the major purpose of the power "To coin Money" is to supply the nation with sound coinage of silver and gold; and if the constitutional power "To coin Money" derives from English common law, with all the qualifications and limitations of that law except as expressly modified in the Constitution— then the power "To coin Money" includes no authority to interdict free trade in coin or bullion of the precious metals. Finally, under the pre-constitutional English common law, the King's coinage-power included no power to seize the citizens' bullion or coin already "in the said Mint,” and impliedly must also have disabled the King from confiscating specie in private possession outside the mint.61 On this basis, the power "To coin Money" in Article I, Section 8, Clause 5 must

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also impliedly disable Congress—"upon any * * * Account or Pretence whatsoever"—from confiscating, forfeiting, seizing, attaching, stopping, or restraining the people's silver and gold, whether in their own possession or temporarily in the custody of the government. In sum, under the unwritten English constitution, power over coinage was part of the King's prerogative. Parliament, however, had authority to add to, or delimit, this power by statute-such enactments becoming part of the English constitution as legislative definitions of the coinage-power under common law. The Founders transferred all this power to Congress by enumerating it in Article 1, Section 8, Clause 5.62 Under the English constitution, of course, Parliament retained the overriding authority to change the coinage-power by statute. But once the Founders enumerated that power in the Constitution, they placed it beyond the ability of Congress to transform by simple legislative enactment.63 B. The power "To * * * regulate * * * Value" 1. If the relatively simple power "To coin Money" is widely misunderstood today, the ancillary power "To * * * regulate the Value thereof, and of foreign Coin" is even more subject to confused misconstructions. People across the political spectrum seem to believe that the power "To * * * regulate the Value" means the power to manipulate the purchasing-power of "Money,” in reference to the level of debt in society, to the level of economic activity, to the "price level,” or to some other economic or political criterion or desideratum. To some, the power "To regulate the Value" amounts to a power of raw inflationism: the power to generate sufficient "Money" (of whatever kind) "to enable the people to pay their debts" as the old saw of the cracker-barrel inflationists has it. In effect, this school of thought argues that the government may use the monetary power "To * * * regulate the Value" as a tool for redistribution of wealth between debtors and creditors, to the advantage of the former. This theory is particularly appealing to politicians, as it rationalizes both surreptitious taxation and repudiation of public debt through inflation, which enables the politicians to "spend and spend, and elect and elect" without appearing to "tax and tax.” To others, the power "To * * * regulate the Value" amounts to a power to stimulate and support trade: the power to provide sufficient "Money" (of whatever kind) to grease the gears of finance—capitalism—specifically, by facilitating credit-expansion by private banks making commercial loans. One fairly popular notion is that the government may use the power "To * * * regulate the Value" to create whatever supply of "Money" is necessary to maintain low, fixed rates of interest in the markets for business loans.64 To yet others, the power "To regulate the Value" amounts to a power to maintain so-called "economic stability": the power to control the "price

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level,” either to keep prices at the same height forever, implying a permanently fixed purchasing-power for the monetary unit (which might be called "decreeing the end of economic history"); or to allow a slow and steady increase in prices, implying a parallel depreciation in the purchasingpower of the monetary unit (which might be called "fixing the direction of economic history downward"). Precisely why "economic stability" of just these two kinds and none other is desirable is never made clear. Interestingly, next to no one in this school advocates a monetary policy resulting in a slow and steady decrease in prices and concomitant appreciation in the purchasing-power of the monetary unit (which would also be a species of "economic stability,” in the sense of predictability), although such would almost surely be the experience under a true constitutional monetary system. This is peculiar, in that wage-earners in society—who presumably have a great deal of political power as voters—would stand to benefit most from a monetary system in which the unit steadily appreciated in purchasing-power. But even so-called "labor leaders" seem to have blinders on when it comes to monetary policy. And none of these people ever stops to ask the more general question of whether the best form of "economic stability" is an economy free from all arbitrary political intervention. Each of these schools of thought shares three interrelated ideas: First, they all employ the monetary power "To regulate the Value thereof [i.e., of 'Money']" to achieve some other, extremely broad non-monetary economic, political, or social end: redistribution of wealth, stimulation of trade, manipulation of prices, et cetera. The underlying thought here apparently is that one supposed power of the Constitution can be stretched to fill in some perceived void in another power. For instance, if the "Power to lay and collect Taxes * * * to * * * provide for the * * * general Welfare"65 is legally too narrow (or politically too cumbersome or controversial) to enable the politicians to redistribute wealth from group A to group B, then the monetary power is made to serve the purpose. For another instance, if the power "To borrow Money on the credit of the United States,66 does not allow straightforward repudiation of public debt, then the monetary power is made to serve the purpose by depreciation of the currency—with the connivance of the Supreme Court.67 For yet another instance, if outright price-fixing under the guise of "regulating interstate commerce"68 is too complicated a method to achieve "economic stability,” then the monetary power is made to serve the purpose-albeit in only a very crude way, as the Federal Reserve System has never succeeded in maintaining either a fixed or a slowly and steadily rising "price level.” Apparently, none of the exponents of these theories ever stops to think that, if the powers to tax and spend, to borrow, and to regulate commerce do not

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serve certain ends at all or well, it may be because the Founding Fathers did not want those powers to be applied to those ends—and hardly would countenance the twisting of some other power to fill in a void they intended to remain empty. Also, apparently none of the exponents of these theories ever considers paradoxical—or, more to the point, ridiculous—the notion that the Founding Fathers, otherwise so careful in their crafting of the Constitution, thoughtlessly or secretly implied in the exceedingly specific language of Article I, Section 8, Clause 5 powers that, in the aggregate, could suffice for totalitarian economic control of a modern industrial society through the exercise of that power by itself. Second, each of these schools of thought rests implicitly on some notion of central economic planning: namely, that the government knows the best distribution of wealth, the government knows the best cost and level of credit, the government knows how far, how fast, and in what direction prices should move, ad nauseam. This, of course, is an example of perverse "cultural conditioning": reading back into the Constitution a modern-day prejudice. Many people today—the collapse of the Soviet Union notwithstanding—still believe, or want or profess to believe, that government can and should "plan" the economy.69 So they retroject this prejudice into the Constitution, without asking whether the Founding Fathers' language, understood as the Founders understood it when they enacted the Constitution, is capable of such an interpretation. Third, each of these schools of thought rejects out of hand what might be called in political parlance the "liberty interpretation,” or in economic parlance the "free-market interpretation,” of the monetary power. This, too, is the product of perverse cultural conditioning. Many people in this totalitarian age gratuitously assume that a power of the government exists only to force individuals to behave in some non-market fashion. These people do not realize that a governmental power may be defined in such a way as to amount to a disability that prevents the government from acting in a non-market way. Thus, if the government is empowered only to coin silver and gold as official "Money"—through "free coinage,” and with the "dollar" as the fixed constitutional standard—and has no power to emit "Bills of Credit" or to declare "legal tender" other than silver and gold coins, then the Constitution has created a free-market monetary system that the government is required to respect and protect. Under this interpretation, the monetary power of the government is as much a statement of individual liberty as anything in the Bill of Rights.70 2. What, then, does the power "To coin Money, regulate the Value thereof, and of foreign Coin" actually mean? First, it is important to pay attention to what the Constitution says in haec verba. The verb "regulate" refers explicitly to two things, and two things only: (i) the "Money" Congress "coin[s]" and (ii) "foreign Coin.” Thus, on its face, Article 1, Section 8,

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Clause 5 grants Congress a power that that body can constitutionally exercise on coinage, and on coinage only. Second, it is also important to pay attention to what the Constitution does not say. Nowhere in the Constitution does any power exist to "regulate the Value" of "currency,” "securities,” "bills,” "notes,” or anything other than coin.71 Thus, on its face, the entire Constitution makes clear that the power "To * * * regulate the Value" does not include some general, undefined power to declare what shall have "Value" as "Money,” or shall be "Money.” In the late 1700s, "regulate" meant (as it does today) "[t]o adjust by rule or method" or "[t]o adjust, in respect of some standard.”72 "The word ordinarily implies not so much the creating or establishment of a new thing, as the arranging in proper order and controlling that which already exists."73 For the most important example, in his Commentaries Blackstone outlined the English common law concerning "[t]he denomination, or the value for which the coin is to pass current": In order to fix the value, the weight and the fineness of the metal are to be taken into consideration together. When a given weight of gold or silver is of a given fineness, it is then of the true standard, and called sterling metal * * * . And of this sterling metal all of the coin of the kingdom must be made * * * . The king may also * * * legitimate foreign coin, and make it current here; declaring at what value it shall be taken in payments. But this * * * ought to be by comparison with the standard of our own coin * * * .74 Interestingly, Blackstone equated "the value for which the coin is to pass current" (i.e., at its full lawful face value) simply with its "denomination,” or mere name—thereby indicating that the process of "fix[ing] the value" of both domestic and foreign coins under English common law was a mechanical and objective comparison of the weight and fineness of precious metal in a particular "denomination" to the "the true standard" of that metal, rather than an attempt to give the coins some arbitrary value, or to manipulate the coins' purchasing-powers according to some arbitrary policy. Blackstone wrote of "fix[ing] the value" of coins; but he could just as easily have written "regulat[ing] the Value thereof,” the verbs "fix" and "regulate" being reasonably synonymous in this context.75 An early example of such usage appears in Queen Anne's Proclamation of 1704, and the Parliamentary Act of 1707, wherein the Queen referred to "a Table of the Value of the several foreign Coins which usually pass in Payments in our said Plantations, according to their Weights, and the Assays made of them in our Mint, thereby showing the just Proportion which each Coin ought to bear to the other,” and then commanded that various foreign coins "stand regulated, according to their Weight and Fineness, according and in Proportion to the Rate before limited and set.”76

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About seventy years later, the Continental Congress proceeded in the same manner. As noted above, the Articles of Confederation, under which the Continental Congress operated, contained a power similar to that in Article 1, Section 8, Clause 5 of the Constitution.77 In 1776, a committee of the Continental Congress "appointed to * * * ascertain the value of the several species of gold and silver coins current in these colonies, and the proportions they ought respectively to bear to Spanish milled dollars,” prepared a table of "rates,” showing the name and weight of the various coins, and their "Value in Dollars.”78 The similarity of this procedure to that in the English act of 1707—even to the use of the nouns "proportion,” "rate,” and "value,” and of the verb "ascertain"—is both striking and hardly accidental. Later in 1776 (as noted above), another committee of the Continental Congress submitted a more detailed report on the same subject. The committee defined its task as, first, "declaring the precise weight and fineness of the * * * Spanish milled dollar * * * now becoming the MoneyUnit or common measure of other coins in these states;” and, second, "explaining the principles and establishing the rules by which * * * the said common measure shall be applied to other coins * * * in order to estimate their comparative value.”79 Having stated the weight of the Spanish milled dollar, "as it comes from the mint, new and unworn" (that is, "current"), the committee then set out the rules for regulating the value of silver and gold coins: (i) "[A]ll * * * silver coins * * * ought to be estimated * * * according to the quantity of fine silver they contain." And (ii) "all gold coins * * * ought to be estimated according to the quantity of fine gold they contain and the proportion * * * which the value of fine gold bears to that of fine silver in those foreign markets at which these states will probably carry on commerce,” "the several proportions at the said markets * * * [being] averaged.” Although it found this average to be "nearly as one to fourteen and * * * one half,” the committee nevertheless recognized that, "as in long tracts of time the proportional values of gold and silver at market are liable to vary, whenever such variation shall have become sensible, this house [i.e., the Continental Congress] ought to make a corresponding change in the rates at their treasury.” It then presented a table of "values,” showing the various silver and gold coins, their "Proportion of fine metal,” "Weight,” amount of "Fine metal,” and "Value in Dollars" (to six decimal places!).80 The Continental Congress' conception of "fix[ing]" or "regulat[ing]" the value of coinage was widely understood among the public as well. For instance, Adam Smith noted how, as people become gradually more familiar with the use of different metals in coin, and consequently better acquainted

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with the proportion between their respective values, it has in most countries * * * been found convenient to ascertain this proportion, and to declare by a public law, that a guinea (of gold), for example, of such a weight and fineness, should exchange for one and twenty shillings (of silver) or be a legal tender for a debt of that amount. In this state of things, and during the continuation of any one regulated proportion of this kind, the distinction between the metal which is the standard, and that which is not the standard, becomes little more than a nominal distinction.81 In sum, the power "To * * * regulate the Value [of United States coin], and of foreign Coin" consists solely of a power of comparison and declaration: (i) comparing the amount of fine silver in particular silver coins to that contained in the "Money-Unit or common measure of other coins in these states" (the "dollar"), and declaring this proportion in "dollar"-values; or (ii) ascertaining the amount of fine gold in particular gold coins, calculating the market-equivalent of fine silver, comparing the latter amount to the "Money-Unit,” and declaring this proportion in "dollar"-values. Thus, under the power "To coin Money,” Congress has discretion to set the weight, purity, form, and impression of all silver, gold, and copper coins it mints (excepting, of course, the intrinsic value of the "dollar" itself). Whereas, under the power "To * * * regulate the Value,” it has a duty accurately to determine the proportions of market value between the fixed "Money-Unit" and the coinage it, and foreign nations, mint. Insofar as the proportions of market value between various gold coins and the (silver) "dollar" are concerned, it may have been reasonable in the late 1700s and immediately thereafter to declare by statute the exchange-ratio customarily prevailing in the market between gold and silver—the transmission of financial information throughout the country, let alone the world, being both slow and uncertain. Even so, the Continental Congress recognized that, because "the proportional values of gold and silver at market are liable to vary,” the government had a duty "whenever such variation shall have become sensible, * * * to make a corresponding change in the rates.”82 Today, with almost instantaneous transmission of sound market-data available, any rigid statutorily declared ratio of value between gold and silver is unreasonable, and therefore unconstitutional.83 Rather, in exercising the power "To * * * regulate * * * Value" under contemporary economic circumstances, the government should simply permit the value of domestic and foreign gold coinage to "float,” as against the silver "MoneyUnit" (the dollar), from one market level to another, as changing exchangerates become "sensible" in commerce.

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The Framers' consistent association of the power "To * regulate Value" with the power "To * * * fix the Standard of Weights and Measures,” then, was no mere caprice.84 Although the purchasing-power of money varies with economic conditions, and ultimately is beyond the government's power to control,85 at any particular point in time the relationship of money to economic values parallels that of weights and measures to physical quantities. Just as the Constitution gave Congress the power "To * * * fix the Standard of Weights and Measures" in order to establish uniformity therein throughout the country,86 so, too, did it confer the power "To * * * regulate Value" in order (as much as possible in economic life) "to produce uniformity of value throughout the Union, and thus to preclude us from the embarrassments of a perpetually fluctuating and variable currency.”87 "[F] luctuating and variable,” that is, in terms of political phenomena impinging on the market. Now, a "Standard of Weigh[t]" must itself be a weight and a "Standard of * * * Measur[e]" a measure. So, too to regulate * * * Value" implies the existence of a unit of "Value.” Here, the two phrases "fix the Standard" and regulate * * * Value" subtly diverge in shades of meaning, if not in ultimate intent: The phrase "fix the Standard" empowers Congress to define the basic units of weights and Measures;” whereas, the phrase "regulate the Value" empowers Congress only to apply the basic unit of "Value,” which the Constitution elsewhere explicitly identifies as the "dollar,” a known, historically fixed weight of silver.88 Moreover, whereas the verb "fix" as applied to "Weights and Measures" implies "stability and confirmation,”89 the verb "regulate" as applied to coinage implies adjustment. Here, then, is another striking example of the Framers' linguistic precision, in one phrase selecting the verb that connotes the establishment of permanent "Standard[s],” without which a system of "Weights and Measures" could not serve its purpose; and, in the other, choosing the synonym that connotes a process of inter-comparisons among changing forms of coinage, according to a set "Money-Unit,” without which a monetary system involving both gold and silver could not achieve its end. In short, the Framers interpreted the constitutional "Value" of "Money" as something not subject to the vagaries of governmental edict—but rather, as Blackstone taught, as something identical with "the weight and standard (wherein consists the intrinsic value).”90 C. The disability to debase "Money" below the constitutional standard The power to "regulate the Value [of Money]" is distinct from the power to debase its value. For example, to "regulate the Value" of a silver coin means to compare the weight of pure silver it contains to the weight of pure silver in the monetary standard (the "dollar"), and to declare the coin's value in terms of that standard. Thus, if a silver coin contains 185.625 grains of fine

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silver, and the standard "dollar" contains 371.25 grains of silver, then the "Value" of the former coin, properly "regulate[d],” is one half of a "dollar.” Conversely, to debase a silver coin means to declare its value without proper reference to the standard, or to lower the silver-content of the standard. Thus, as possible instances of this practice, the hypothetical silver coin in the previous example would be debased if minted of only 150 grains of silver, yet still declared to be one half of a "dollar;” if minted of 185.625 grains of silver, yet declared to be one "dollar;” or if minted of 185.625 grains of silver, and declared to be one "dollar,” based upon a phony "dollar" decreased from 371.25 to 185.625 grains of silver.91 From time to time, the Kings of England did engage in the practice of debasing coinage.92 Whether they rightfully enjoyed the power to do so under the unwritten English constitution, however, is highly questionable (as discussed below). In any event, even if the Kings actually had this authority under English law, the people of the United States clearly denied it to Congress under the Constitution. The Framers of the Constitution explicitly enumerated the coinage-power in Article 1, Section 8, Clause 5 because: (i) under common law, that power had been executive in nature (i.e., the power of the King); and, therefore, (ii) without enumeration among the legislative powers of Congress in Article 1, it might have passed to the Executive by implication among the general powers in Article 11.93 And this result, of course, the Framers sought to forfend. The Framers, after all, were conversant with the dolorous history of excesses various English monarchs had perpetrated, and were aware how "in former ages" the crown had "greatly abused" its prerogative of coinage: "for base coin was often coined and circulated by its authority, at a value far above its intrinsic worth, and thus taxes of a burdensome nature were laid indirectly on the people.”95 Therefore, the Framers made clear by the placement of the coinage-power that Congress, not the Executive, was to exercise it. And they made equally clear by the language of that power that it included no authority to debase "Money,” but only to "regulate [its] Value" according to a fixed standard. Indeed, the sole power concerning the "Value" of Money is the power in Article 1, Section 8, Clause 5 to "regulate"—which (as described above) at common law meant only the process of properly comparing the coin needing regulation to the monetary standard, not falsifying that comparison or changing the standard. And the monetary standard itself the Constitution fixes in historically unmistakable terms as the "dollar.” Thus, even if the English Kings had taken advantage of Parliamentary pusillanimity and successfully debased the coinage by falsely certifying its intrinsic value, or permuting the monetary standard, contrary to common-law tradition, the Constitution denied any such license to Congress, by permitting it only to "regulate the Value [of Money],” according to a legislatively unchangeable standard.

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This limitation upon the so-called "sovereign prerogative" over coinage is particularly fitting under a republican Constitution that prohibits the "depriv [ation] of * * * property without due process of law" and the "tak[ing]" of "private property for public use without just compensation.”96 Especially during the reign of the profligate Henry VIII, a major purpose of debasement had been to secure revenue for the King's expenses, many of which were purely personal in nature (that is, inflation was a device for direct redistribution of wealth from the people to the King as an individual). "The United States,” however, "do not and cannot hold property, as a monarch may, for private or personal purposes,”97 and may not apply any of its powers to such ends. If, therefore, the authority of the English King to debase the coinage (assuming arguendo it existed at all) rested in large measure on his need to augment his own personal income; and if, conversely, Congress (or any other branch of the United States government) has no such monarchical powers of a personal nature; then, logically, Congress has no need for or any authority to debase the national coinage— and the absence of that authority from the Constitution reflects the inherent dissimilarity between the English and American forms of government. The assumption that the English King ever enjoyed a constitutional authority to debase the coinage is fallacious, though, at least in the context of the late 1700s and early 1800s. For, by then, the "abuses of the Coinage" of Henry VIII and others had "[f]or over two centuries * * * ceased on the part of the English government.”98 And the great commentators on the common law at that time rejected any notion that this long cessation of abuse constituted merely an historical hiatus in a legitimate practice, rather than the recognition of a constitutional prohibition. Blackstone, for example, contented himself with the simple statement that "the king's prerogative seemeth not to extend to the debasing or enhancing the value of the coin, below or above the sterling value.”99 Chitty discussed the issue in more detail: Whether the King can legally change the established weight or alloy of money, without an Act of Parliament, seems to be quite clear. By the statute of 25 Ed. 3 st. 5c. 13. it is "accorded and established that the money of gold and silver which now runneth, shall not be impaired in weight nor in alloy; but as soon as a good way may be found that the same be put in the ancient state as in the sterling." Lord Coke, in his comment of articuli super cartas, ch. 20, 21. cites, among other acts and records, this statute of the 25 Edw. 3. and the Mirror of Justices, ch. 1 8. 3. ("Ordein fuit que nul roy de ce realme ne poit changer sa money ne impayre ne amender ne autre moneyfaire que de or ou d'argent, sans assent de touts ses counties,") in support of his opinion against the King's right to alter money in weight or alloy. Lord C.J. Hale differs with

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Lord Coke, and relies 1st upon the 'case of mixt monies;' 2dly, on the practice of enhancing the coin in point of value and denomination, which he observes has nearly the same effect as an embasement of the coin in the species; and lastly, on the attempts which have been made to restrain the change of coin without consent of Parliament. In the case reported by Sir John Davies, it appears that Queen Elizabeth sent into Ireland some mixed money, and declared by proclamation that it should be current and lawful Irish money. This money was certainly held to be legal coin of Ireland; but it is most probable that as the case was in Ireland, the statute 25 Edw. 3. and the other Acts cited by Lord Coke, were not considered in discussing it; as it is clear from one of Poyning's laws they might have been. As it is fair presumption that those statutes were not brought before the Court, no mention being made of them, though Sir. M. Hale himself admits that the statute of Edw. 3. is against his opinion. As to the practice mentioned by Lord Hale of enhancing the coin in point of value and denomination, that seems very distinguishable from altering the species or material of coin, by changing its weight or alloy. Even admitting the existence of a practice to imbase coin in the alloy, still little importance will be attached to it, when it is remembered how frequently some Kings have endeavored to extend the limits of their prerogatives. The attempts which have been made to restrain the change of coin without consent of Parliament, prove but little in favor of Lord Hale's opinion; for those attempts might have been so made in order to restrain the exercise of a prerogative which was denied, and it does not appear that they were made in order to overturn a prerogative, the legal existence of which was admitted. The authority of Sir Wm. Blackstone may perhaps turn the scale in favor of Lord Coke's opinion, if that opinion required it. * * * It need only be added, that the statute of 14 Geo. 3. ch. 92. seems to furnish an inference that the standard weight of the gold and silver coin of the kingdom is unalterable, but by Act of Parliament.100 To like effect were the contemporary exegeses of Hawkins and East.101 And even those few who admitted a broad kingly prerogative to alter the coinage conceded that "[t]he policy in relation to the coin is, that the value remains unalterable, for the standard cannot be varied without manifest injustice.”102 Of course, from Chitty's statement that "the standard weight of the gold and silver coin of the kingdom is unalterable, but by Act of Parliament" could follow the inference that Parliament perhaps retained a power to alter the coinage through statutory debasement. This possibility is irrelevant to the issue of what powers Congress may exercise pursuant to the Constitution, however. For the Constitution itself fixes the monetary standard as the

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(silver) "dollar,” beyond any legislative authority to alter without constitutional amendment.103 In sum, under English common law, the King exercised all power to coin and regulate the value of money. By the late 1700s, Parliament had defined this royal prerogative as not including the authority to debase the coinage, either directly or by changing the "sterling" standard. The Constitution transferred this executive power to the legislative branch of government in Article 1, Section 8, Clause 5. Simultaneously, it removed from legislative control the monetary standard itself (the "dollar"). Thus, the Constitution outlawed the debasement of "Money" by enjoining Congress properly to "regulate the Value thereof" against the standard, and by precluding Congress from tinkering with that standard under any legislative pretext whatsoever. D. The power to declare "Money" a legal tender Some of the people who favor a broad power of government over the substance and purchasing-power of money may admit that the Constitution limits actual "Money" to coin, and requires "regulat[ion of] the Value" of such coin according to the standard silver "dollar.” But, these people argue, the Constitution allows Congress to create "legal tender" for "dollars"—that is, things that debtors can require creditors to accept in lieu of the "dollars" the debtors owe. Under this theory, a "legal tender" need not be "Money,” but is merely a substitute for "Money" that Congress compels creditors to accept at the option of debtors. Obviously, if Congress creates a "legal tender" less valuable than the "dollars" for which it may be substituted, redistribution of wealth occurs every time a debtor pays a creditor with that "legal tender" instead of the "dollars" he owes. Thus, the power to create "legal tender" (if it exists) can have economic effects as consequential as the power (which does not exist) directly to debase the coinage. The question the people in favor of Congressional "legal tender" must answer, however, is: "Where in the Constitution does such a power reside?" Article I, Section 8, Clause 5 neither grants a power to declare, nor even mentions, "legal tender.” Indeed, the term "Tender" appears in the Constitution only in Article 1, Section 10, Clause 1—reserving to the States a portion of their pre-constitutional "legal-tender" authority for "gold and silver Coin" alone. Analysis of the nature of "legal tender" and constitutional "Money" explains this situation. To understand the concept "legal tender" requires distinguishing between "money" in the economic sense, as the common medium of exchange, and "money" in the juristic sense, as the common medium of payment (or settlement of debts). In a market-economy, something can become a medium of payment only by virtue of already being a satisfactory medium

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of exchange. In theory, the law can assign the character of a medium of payment ("legal tender") to anything, including the three forms of money: "commodity money,” "credit money,” and "fiat money.”104 But granting such juristic character to something is insufficient to make that something "money" in the economic sense. In a market-economy, things become media of exchange only through their use as such in commercial transactions. Commerce, of course, may adopt as media of exchange such things as the law declares to be media of payment; but it need not do so.105 Article I. Section 8, Clause 5 of the Constitution evidently uses the noun "Money" in its economic, as well as its juristic sense, for two reasons. First, linguistically, the clause refers to a "Money" capable of being "coin[ed]"— which, of necessity, identifies that "Money" as "commodity money,” not "credit money" or "fiat money.” Second, historically, the "commodity money" of England and America for hundreds of years prior to ratification of the Constitution consisted only of silver, gold, and (to a lesser degree) copper—which became "money" through the course of trade, not through the dictates of government, and to which government merely extended "legal-tender" character in recognition and adoption of established commercial practices. Therefore, presumptively, whatever commodity could serve as "Money" under Article 1, Section 8, Clause 5 could also and consequentially serve as "legal tender,” because (as traditionally was the case) the medium of payment that contracting parties intended in commercial agreements creating monetary obligations was the medium of exchange extant in the community; and this medium was generally satisfactory for fulfilling obligations not contracted in money, too. Reference to common law establishes what commodities can serve as "Money" under Article 1, Section 8, Clause 5. At common law, "the money of England" had to be of either gold or silver, with ‘copper coin * * ' not upon the same footing;” and coin of the precious metals was, merely upon its coinage and even without explicit declaration to that effect, "legal tender" for its intrinsic value (i.e., its weight of fine silver or fine gold).106 Because the power "To coin Money" derived from the common-law coinage-power, it must also include an implied power to give "legal-tender" character to all silver and gold coins properly "regulate[d]" in "Value" as against the "Money- Unit"—but, as well, an implied disability to make base-metal coins a full "legal tender,” or even to impose gold or silver coins as such when improperly "regulate[d]" in "Value.” Of decisive importance here, of course, are the explicit constitutional references to the (silver) "dollar" in Article 1, Section 9, Clause 1 and the Seventh Amendment-which references establish the "dollar" as the nation's monetary unit. Obviously, if the Constitution itself identifies the "dollar" as the "Money-Unit" of the nation's coinage system, then that "dollar"—the dollar of 371.25 grains fine-silver content—will necessarily be a "legal tender" for all contracts denominated in "dollars,” and for all judgments of governmental courts payable in money.

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The apparent problem of "legal tender" arises only because Congress may constitutionally coin "Money" other than the constitutional "dollar" itself. Now, if Congress coined silver and gold coins other than the "dollar,” "regulat[ing] the Value thereof" in proper proportion to the "dollar" according to the market exchange-ratio between the precious metals, all of these coins would be equally available as economically equivalent means of paying debts. Under such circumstances, if a contract explicitly specified the medium of payment as one or another of these standard silver or gold coins, then that specified coin alone would be "legal tender" for satisfaction of the contractual obligation, even absent any explicit statutory or constitutional authorization. The question is whether, in satisfaction of a contractual obligation denominated generally in undefined "dollars" (as opposed to "silver dollars") other standard coins might not also serve as "legal tender" to the extent of their intrinsic values in weight of precious metal. For, if properly "regulate[d],” these other coins in proportionate amounts would have the selfsame economic worth (exchange-value or purchasing- power) as the contractually specified "dollars.” The issue in such a case would be whether the contracting parties used the designation "dollar" literally, to identify that silver coin as the unique means of payment, or merely figuratively, to symbolize a certain exchange-value of "Money" in a general sense. In the former circumstance, only the silver "dollar" could be a "legal tender,” consistent with the Fifth and Fourteenth Amendments' Due Process Clauses; whereas, in the latter circumstance, the payment of actual "dollars,” or of their market-equivalent in some other coin, would satisfy the contractual obligation for a determinable value of money" in the economic sense. On the other hand, where a debt arose in a non-contractual setting (such as damages adjudicated in a common-law tort action), the economic value of that judgment-debt would be the same whether denominated and paid in (silver) "dollars" or in any other properly "regulate[d]" silver or gold coin. Therefore, in cases of this kind, all forms of constitutional "Money" would be capable of functioning as "tender" in the economic sense, the choice among them in the juristic sense being that of the adjudicating agency. Indeed, as long as governmental courts exist, capable of summoning defendants before them by coercive process and imposing damagejudgments against those defendants, government will necessarily have a limited "legal-tender" power, in the sense of the authority to conduct a trial at which the finder of fact establishes the compensation to which the complaining party is entitled ("tender" in the economic sense), and to declare what shall constitute the medium of payment for such judgments ("tender" in the juristic sense). Of course, under the injunction to provide "just compensation" pursuant to the Due Process Clauses of the Fifth and Fourteenth Amendments,107

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government can declare as a juristic tender only what in fact provides the complaining party with full economic recovery ("fair market value") for his damages.108 So, the government's "legal-tender" power in these cases, rightly understood, amounts at most to the declaration of which among various media of payment equally suitable in economic terms is most convenient for use by the courts (or other agencies of adjudication). Yet, as limited as this power may be, it nevertheless is inherent in a system of governmental courts. Indeed, even if government decreed that it would recognize as "legal tender" in each specific case whatever medium of exchange the complaining party desired, in the final analysis government would none the less be imposing that tender on the defendant, just as government would impose the damage-judgment itself.109 The implicit reservation of the States' "legal-tender" authority respecting "gold and silver Coin" in Article 1, Section 10, Clause 1 supports the interpretation that all properly "regulate[d]" coins of the precious metals can equally serve as media of payment. The Framers understood that, even if a common-law "legal-tender" power for silver and gold coins were implicit in Article 1, Section 8, Clause 5, Congress nevertheless received no authority in any constitutional provision under the federal system to interfere with the inherent governmental powers and duties of the States.110 Yet they also knew that the States would often amass debts in the performance of those powers and duties-and might well, as experience during the War of Independence taught, attempt to default on those debts by tendering to their creditors "Thing[s]" other than "gold and silver Coin.” To preclude this within the federal structure, the Framers included in Article 1, Section 10, Clause 1 the prohibition against "mak[ing] any Thing but gold and silver Coin a Tender in Payment of Debts,” so as to constitutionalize for the States in their governmental capacities the monetary rule otherwise applicable to the national government and the people generally through Article 1, Section 8, Clause 5. This, however, reciprocally shows that the Constitution does tolerate "gold and silver Coin" as "Tender in Payment of Debts"— presumably at the properly "regulate[d]" intrinsic value in relation to the (silver) "dollar.” In conjunction with the Tenth Amendment111 and Article VI, Clause 2 (the Supremacy Clause),112 Article 1, Section 10, Clause 1 provides further evidence that silver and gold—and only silver and gold—may constitutionally function as governmentally declared "legal tender.” Under the Tenth Amendment, there are three possibilities: (i) If a power is "delegated to the United States by the Constitution,” it is not "reserved to the States * * * or to the people.” (ii) If a power is "reserved to the States or to the people,” it is not "delegated to the United States.” And (iii) if a power is "prohibited by [the Constitution] to the States,” it is either "delegated to the United States" or "reserved * * * to the people.” Article 1, Section 10, Clause 1 refers to two complementary powers: explicitly, the power to "make any Thing but gold and silver Coin a Tender in Payment of Debts;”

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and implicitly, the power to make "gold and silver Coin" itself such a "Tender.” The clause prohibits the first of these powers, and reserves the second, to the States. Now, self-evidently, if the Constitution reserves power to make "gold and silver Coin a Tender" to the States, then perforce of the Tenth Amendment it does "not delegat[e]" a "legal-tender" power to the United States-or, it does not delegate that power to the United States in any form that could conflict with the reserved authority of the States. Therefore, if the United States has any constitutional privilege to declare a "legal tender,” that "tender" must consist of the same "gold and silver Coin" the States may "make * * * a Tender.” Congress, of course, has exclusive power under Article 1, Section 8, Clause 5 to "regulate the Value" of domestic and foreign "Coin.” So, overall, both Congress and the States have concurrent authority to declare as full "legal tender" gold and silver coins at the properly "regulate[d]" "Value[s]" that Congress sets (or should set, in the exercise of its constitutional duties)."113 Conversely, Article 1, Section 10, Clause I prohibits the States from "mak [ing] any thing but gold and silver Coin a Tender.” And Article VI, Clause 2 shows that the Constitution did not delegate this power to the United States. If Congress had authority to declare something other than gold and silver coin a "legal tender,” while at the same time the States were declaring such coin a "tender" (presumably for the selfsame debts.), then an insoluble constitutional conflict would ensue. For the Supremacy Clause enjoins that "[t]his Constitution, and the Laws of the United States which shall be made in pursuance thereof shall be the Supreme Law of the Land.” If the States could declare specie a "tender" pursuant to their explicit reservation of constitutional power in the Constitution itself, and Congress could declare something else a "tender" in a statute enacted pursuant to a claimed implicit delegation of constitutional power, which declaration would be "the Supreme Law of the Land"? Simple constitutional logic compels the conclusion that the exercise of the power set out explicitly in the Constitution must override the exercise of a power claimed only to be implicit therein. But, then, where in the Constitution resides the "legal tender" power that Article 1, Section 10, Clause 1 prohibits to the States and Congress? The Tenth Amendment answers this question, by identifying the locus of the latter authority as "reserved * * * to the people.” The States cannot make anything but gold and silver coin a "Tender" because of Article 1, Section 10, Clause 1. Congress cannot make anything but gold and silver coin a "tender" because of Article VI, Clause 2 (in addition to the common-law interpretation of Article 1, Section 8, Clause 5). And, therefore, only the people—through voluntary contractual arrangements among themselves— can make anything but gold and silver coin a "tender.” (And, of course, through such contracts they can stipulate for payment in gold and silver

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coin, too.) In the most fundamental sense, then, the power to declare what shall be a "legal tender" resides in the people, not in the government. By contract, individuals can stipulate whatever they will as "tender" in payment of debts among themselves. Congress and the States may declare properly "regulate [d]" gold and silver coins as "legal tender" for the "Value" of those coins. But, for example, any private contract that called for payment of (say) "$1,000 silver dollars" would as much determine the "legal tender" for fulfillment of that agreement as would the government. Certainly neither Congress nor any State could constitutionally require the creditor in such a contractual situation to accept 1,000 pieces of leather (or other base material) stamped "dollars,” or 1,000 gold or silver coins improperly "regulate[d]" with respect to the (silver) "dollar.” Conclusion The foregoing analysis proves that there is no constitutional basis for using the power "To * * * regulate the Value" of "Money" for stimulation of the economy, redistribution of wealth, stabilization of the purchasing power of money, creation of "legal-tender" substitutes for real "dollars,” or for any of the other sundry monetary nostrums that politicians and their unelected "expert" advisors have foisted, and continue to foist, on the American people. The sooner the people recognize this, the sooner something may be done to rectify the situation. If, however, the people remain ignorant, apathetic, and inactive, the politicians will "regulate the Value" of American money to zero-just as one fiat currency after another, throughout the course of Western history, has collapsed into worthlessness-with all the serious economic, political, and social consequences such a collapse will entail.

NOTES 1 The adjective "legal" is necessary, because the present monetary system is not the monetary system the Constitution requires. 2 See 12 U.S.C. § 41 1, which states that "Federal reserve notes, to be issued at the discretion of the Board of Governors of the Federal Reserve System * * * are authorized.” The Secretary of the Treasury may also issue a small amount of United States currency notes. 31 U.S.C. § 5115. Anyone who deals regularly in cash is aware that vanishingly few, if any, such currency notes are in circulation. 3 The coinage is defined in 31 U.S.C. §§ 5111-13. Gresham's Law is usually stated as: "bad money drives good money out of the market.” A more descriptive way of putting it is: "people prefer to hold good money in

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preference to bad money, and to spend bad money in preference to good money.” 4 On the peculiar status of bank "deposits" as debts, see M. Rothbard, The Case Against the Fed (1994), at 40-45. 5 In a strictly economic sense, of course, FRNs are treated as "money," i.e., as a medium of exchange in day-to-day transactions. 6 12 U.S.C. § 411 (emphasis supplied). 7 See U.S. Const. art. 1, § 8, cls. 2 and 5; art. I, § 10, cl. 1. 8 31 U.S.C. § 5103 9 31 U.S.C. § 5101. 10 This assumes, of course, that the debtor has not contracted to pay in silver or gold coin, or some other specifically defined "dollars,” in which case the legal-tender law is inapplicable. See 31 U.S.C. § 5118(d)(2) and Bronson v Rodes, 74 U.S. 7 Wall. 229 11 U.S. Const. art. I, § 8, cl. 5. 12 U.S. Const. art. I, §10, cl. 1 (emphasis supplied) 13 31 U.S.C. §§ 5112(a)(1), 5112(a)(7), 5112(e). 14 That this rationale is grossly deficient, because the concept of a "stable price level" is economically questionable, has never deterred the central bankers and other government money-managers from using it. See M. Rothbard, Man, Economy and State: A Treatise on Economic Principles (1970), at 727-44. 15 Of course, also possible is that the true policy of the Federal Reserve has been simply to depreciate the paper currency in order to "stimulate" the economy and fund governmental deficits by the hidden tax of inflation. 16 See National Alliance for Constitutional Money Monograph No. 6, What is a "dollar"? An historical analysis of thee fundamental question in monetary policy. 17 Eg., Moore v. United States, 91 U.S. 2705 274 (1876); Ex parte Bain, 121 U.S. 1, 12 (1887); Smith v. Alabama, 124 U.S. 465, 478-79 (1888); Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 570-72 (1895); United States v. Wong Kim Ark, 169 U.S. 649, 654-55 (1898); Schick v. United States, 195 U.S-65, 68-70 (1904); South Carolina v. United States, 199 U.S. 437, 449-50 (1905); Kansas v. Colorado, 206 U.S. 46, 94-95 (1907); Patton v. United States, 281 U.S. 276, 287, 290 (1930); Dimick v. Schiedt, 293

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U.S. 474, 476-82, 487 (1935); United States v. Wood, 299 U.S. 123, 133-39 (1936). See J. Story, Commentaries on the Constitution of the United States (5th ed. 1891), Vol. 2, § 1339, at 212. Story's Commentaries are recognized as a standard work on constitutional law. E.g., Field v. Clark, 143 U.S. 649, 670-71 (1892). 18 W. Blackstone, Commentaries on the Laws of England (Amer. ed., 4 vols. & App., 1771-1773). 19 "At the time of the adoption of the Federal Constitution, [the Commentaries] had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the framers of the Constitution were familiar with it." Schick v. United States, 195 U.S. 65, 69 (1904). 20 Commentaries, Vol. 1, at 276-78. 21 Blackstone could have substituted for his language "fix the value" the equivalent phrase "regulate the Value,” as later appeared in Article 1, Section 8 Clause 5 of the Constitution. For the two verbs are synonyms. Eg., Black's Law Dictionary (4th ed, rev. 1968) defines "regulate" as "[t]o fix, establish, or control." 22 All men may resort to the King's exchanges, or to the Tower, to have new money coined, 1421, 9 Hen. V, Stat. 2, ch. 2. 23 An Act for encouraging of Coinage, 1666, 18 Car. 11, ch. 5, §§ 1, VI-IX. 24 On the close connection between the standardization of money and of weights and measures, see An Act for regulating and ascertaining the Weights to be made use of in weighing the Gold and Silver Coin of this Kingdom, 1774, 14 Geo. III, ch. 92. 25 E. Groseclose, Money and Man: A Survey of Monetary Experience (2d ed. 1967), at 172. 26 An Act for the Encouragement of Trade, 1663, 15 Car. 11, ch. 7, § XII. 27 An Act for Encouraging Coinage, 1666, 18 Car. 11, ch. 5, § V. 28 Arts. of Confed'n art. IX. 29 See E. Vieira, Jr., Pieces of Eight.- The Monetary Powers and Disabilities of the United States Constitution (1983), at 10-15. 30 U.S. Const. art. I, § 10, cl. 1. 31 The Constitution delegated to Congress only the power "to borrow Money on the credit of the United States,” not the power "to borrow money,

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or emit bills" that existed in the Articles of Confederation. On the significance of this change, see Vieira, Pieces of Eight, ante note 29, at 7077. 32 Journals of the Continental Congress, 1774-1789 (W. Ford ed. 190S), Vol. 5, at 724-25. 33 Id. at 725. 34 Id. at 726. See id., Vol. 4, at 381-83. 35 Id., Vol. 7, at 138. 36 Id., Vol. 28, at 355. 37 Id. Vol. 29 at 499-50 38 Id., Vol. 30, at 162-63. See id., Vol. 31, at 503-04. After ratification o the Constitution, Congress caused a more accurate valuation of the "current' Spanish milled dollar to be made, fixing it at 371.25 grains of fine silver. Act of April 1792, ch. XVI, § 9, 1 Stat. 246, 248. 39 Arts. of Confed'n art. IX. 40 Documents in the records of the Committee of Detail contain several versions of the power: viz., (i) "S & H.D. in C. ass. shall have the exclusive Right of coining Money;” (ii) "10. * * I The exclusive right of coining money;” (iii) "The Legislature of U.S. shall have the exclusive Power * * * of coining Money;” (iv) "to coin Money.” The Records of the Federal Convention of 1787 (M. Farrand ed. 1966), Vol. 2, at 136, 1449 158-59, 167. The Reports of the Committees of Detail and Style both contain the language: "To coin money.” Id. at 182, 595. 41 In the late 1700s, the standard definition of "money" was "[m]etal coined for the purposes of commerce.” S. Johnson, A Dictionary of the English Language (1755). 42 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). 43 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-80 (1803); Kansas v. Colorado, 206 U.S. 46, 89-90 (1907); Myers v. United States, 272 U.S. 52, 23031 (1926)(McReynolds, J., dissenting). 44 Kansas v. Colorado, 206 U.S. 469 88-89 (1907). 45 Kansas v. Colorado, 206 U.S. 46, 81 (1907); Myers v. United States, 272 U.S. 52@ 230 (1926)(McReynolds, J., dissenting). 46 Kansas v. Colorado, 206 U.S. 46,83-84 (1907); Downes v. Bodwell, 182

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U.S. 2449 288 (1901). 47 Bute v. Illinois, 333 U.S. 640, 653 (1948). 48 See Arts. of Confed'n art. IX and U.S. Const. art. 1, § 10, cl. 1. 49 See, e.g., Craig v. Missouri, 29 U.S. (4 Pet.) 410, 431-32 (1830); Briscoe v. Bank of Kentucky, 36 U.S. (II Pet.) 257, 312-14, 318-19 (1837). 50 The States had claimed a general power to declare "legal tender" which was not limited to "Money" or "Bills of Credit.” That is why Article I, Section 10, Clause 1 denies the States power "to make any thing but gold and silver Coin a Tender in Payment of Debts" (emphasis supplied). 51 A pre-constitutional general power to create "Money" (in the sense of a legally authorized medium of exchange) that survived Article 1, Section 10, Clause 1 might allow the States to emit a paper currency (which would not be a "Coin") that was not redeemable in coin (and therefore not a "Bill of Credit"), and that was receivable in payment of taxes (which are not "Debts"). If the State initially paid out this currency only to creditors willing to receive it, and other individuals then voluntarily accepted this currency in normal marketplace exchanges because of its usefulness for paying State taxes, the State would have created a form of "Money" that arguably does not offend the Constitution. 52 Craig v. Missouri, 29 U.S. (4 Pet.) 410 (1830). 53 U.S. Const. amend. X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 54 Johnson, Dictionary, ante note 41, defined the verb "coin" as "To mint or stamp metals for money.” 55 Oxford English Dictionary (compact ed. 1971), Vol. 1, defines the verb coin" as "To make (metal) into money by stamping pieces of definite weight and value with authorized marks or characters * * * ." 56 Black's, ante note 21, at 326. 57 Craig v. Missouri, 29 U.S. (4 Pet.) 410, 431-32 (1830); Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257, 318 (1837); Woodruff v. Trapnall, 51 U.S. (10 How.) 190, 205 (1851); Darrington v. Bank of /Mabama, 54 U.S. (13 flow.) 12, 1-5-17 (1851). 58 United States v. Marigold, 50 U.S. (8 How.) 560, 566-69 (1850). 59 See ante, pages 6-8.

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60 See ante, pages 8-10. 61 See ante, page 1 1. 62 W. Crosskey, Politics and the Constitution in the History of the United States (1953), at 411-14, 421. See also C. Thach, Jr., The Creation of the Presidency, 1775-1789 (1923), at 86-87, 173. 63 Eg., United States v. Bricrnoni-Ponce, 422 U.S. 873, 877-78 (1975); Miranda v. Arizona, 384 IJ.S. 436, 491 (1966). 64 Eg., the government supplies whatever amount of "Money" is necessary so that it can loan to private banks at (say) 2%, and the banks can then make commercial loans at (say) 6% to everyone who desires to borrow. In some of these schemes, the government then "absorbs" through an income or other tax any "excess purchasing power" that may arise, creating a "circular flow" of money out of and then back into the public treasury. These notions of "money as plumbing" seem to be especially popular with people who have backgrounds in physics, engineering, or applied physical sciences, and who assume that economic systems can be "wired" as if they were circuitdiagrams. 65 U.S. Const. art. I, § 8, cl. 1. 66 U.S. Const. art. 1, § 8, cl. 2. 67 See Perry v. United States, 294 U.S. 330 (1935). 68 See U.S. Const. art. 1, § 8, cl. 3, as construed in Yakus v. United States, 321 U.S. 414 (1944). 69 Most American politicians and pundits do not use that negatively loaded term, of course, or openly advocate "five year plans.” Today's "planning" occurs back-handedly, through the so-called "loopholes" of the tax codes; governmental subsidies and transfer payments; health, safety, consumer, and environmental regulations; and so on. 70 Of course, reasoning of this kind caused many of the Founding Fathers to say, correctly, that a Bill of Rights was unnecessary. If the Constitution were properly construed, they argued, the government would have no powers that could abridge the natural rights of the people. So, for example, if Article 1, Section 8, Clause 5 were correctly interpreted, there would be no need for the prohibition in the Fifth Amendment against the taking of property without due process of law in the area of money. For the government would be unable to take property at all through exercise of the monetary powers. 71 The only reference to anything relating to "currency" in the Constitution is the power in Article 1, Section 8, Clause 6 "To provide for the

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Punishment of counterfeiting the Securities and current Coin of the United States" (emphasis supplied). 72 Compare Johnson, Dictionary, ante note 41, with Oxford English Dictionary, ante note 44, and Black's, ante note 20. 73 State er rel. Hollywood Jockey Club v. Stein, 133 Fla. 530, 543, 182 So. 863, 868 (1938). 74 Commentaries, ante note 18, Vol. 1, at 278 (footnotes omitted). 75 Eg., Black's, ante note 21, defines "fix" as to "[a]djust or regulate,” and defines "regulate" as to "fix, establish, or control.” 76 An Act for ascertaining the Rates of foreign Coins in her Majesty's Plantations in America, 6 Anne, ch. 30, § I (emphasis supplied). 77 Arts. of Confed'n art. IX: " congress * * * shall * * * have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective states.” In the Constitution, Congress' power to "regulate the Value" was extended to "foreign Coin,” and the reference to "coin struck by * * * the respective states" was deleted, as the States were prohibited from coining Money under Article I, Section 10, Clause 1. 78 Journals of the Continental Congress, ante note 32, Vol. 4, at 381-82. 79 Id., Vol. 5, at 725. 80 Id. at 725-26. 81 A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776), Book I, ch. 5 (emphasis supplied). 82 Journals of the Continental Congress, ante note 32, Vol. 5, at 726. 83 That the application of constitutional principles (albeit not the principles themselves) may change with changes in economic and social facts is a commonplace of constitutional law. Eg., Brown v. Bd. of Educ., 347 U.S. 483, 493-95 (1954); Block v. Hirsh, 256 U.S. 135, 155 (1921). 84 This association was common in English common-law monetary practices. E.g., An Act for regulating and ascertaining the Weights to be made use of in weighing the Gold and Silver Coin of this Kingdom, 1174,14 Geo. 111, ch. 92. 85 See Ludwig von Mises, Human Action: A Treatise on Economics (3rd rev. ed., 1963), at 408-12.

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86 See The Federalist No. 42. 87 Story, Commentaries, ante note 17, Vol. 21 § 1118, at 58. 88 The Constitution does not refer to any specific "Standard of Weights and Measures.” At the time of its adoption, though, the English system had long been in use in America. Arguably, then, Congress' power in Article I, Section Clause 5 might extend only to determining, with scientific accuracy, what "pound,” a "foot,” and a "quart" traditionally were, and "fix[ing] the Standard[s] thereafter on the basis of those determinations. Arguably, Congress' power could allow for creation of an altogether new standard, or the adoption of some non-English standard (such as the metric system). However, once Congress had "fixed] the [new] Standard,” it could not alter the units thereof within the same system of measurement. Eg., Congress could not define the "pound" as (say) cubic inches of lead, and later on "redefine" the same "pound" as X/2 cubic inches of lead, causing creditors to lose 50% of their debts denominated in "pounds,” in order to curry political favor from debtors. The very terminology "fix[ing] the Standard,” after all, implies the opposite of fraudulently permuting it. 89 Cochnower v. United States, 248 U.S. 40-51 408 (1919). Johnson, Dictionary, ante note 34, defined the verb "fix" to mean "[t)o settle; to establish invariably.” 90 Blackstone, Commentaries, ante note 18, Vol. 1, at 276. 91 During the Middle Ages, these forms of debasement were known as la mutation des poids (change of weight), la mutation de l'appellation (change of name), and la mutation de matiere (change of substance). See Groseclose, Money and Man, ante note 25, at 67. 92 See generally, e.g., S. Breckinridge, Legal Tender.- A Study in English and American Monetary History (1903), ch. 5. 93 Crosskey, Politics and the Constitution, ante note 62, at 411-14, 421. 94 See, eg., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 64041 (1952)(Jackson, J., concurring). 95 Story, Commentaries, ante note 17, Vol. 2, § 1118, at 59 (footnote omitted). 96 U.S. Const. amend. V. 97 Van Brocklin v. Tennessee, 117 U.S. 151, 158-59 (1886). 98 S. Breckinridge, Legal Tender, ante note 92, at 91. 99 Commentaries, ante note 18, Vol. 1, at 278 (footnote omitted).

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100 J. Chitty, Jr., A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject (1820), at 197-99 (footnotes omitted). Chitty was quite correct to dismiss as unreliable the opinions of Lord Hale. For Hale's Pleas of the Crown "exude his ultraroyalist sentiments, and have been condemned as "brief and inaccurate.” Dictionary of National Biography (1917), Vol. 8. at 905. 101 W. Hawkins, A Treatise on the Pleas of the Crown; or, A System of the Principal Matters Relating to that Subject, Digested Under Proper Heads (J. Curwood, 8th ed., 1824), Vol. 1, ch. III, pt. 11, § 16 at 43; E. East, A Treatise of the Pleas of the Crown (Anier. ed. 1806), at 148. 102 M. Bacon, A New Abridgement of the Law (C. Dodd., 7th ed. 1832), Vol. 6, at 414. This commentary, though, erroneously relies on Hale. see ante, note 100. 103 See U.S. Const. art 1, § 9, cl. 1 and amend VII. 104 "Commodity money" is money that is simultaneously a non-monetary commercial commodity, such as silver or gold. The "money" is the metal itself. "Credit money" is money that consists of a claim not both payable on demand and absolutely secure. The "money" is the promise to pay at a future time. "Fiat money" is money composed of otherwise essentially valueless things that neither have a commercial use nor constitute a claim against anyone, but do have a special legal qualification. The "money" is not the material bearing the stamp of authority, but the stamp alone. 105 Typically, if the law attempts to force commerce to accept as media of exchange things that commerce finds unacceptable, commerce goes underground, into the so-called "black market,” and operates outside the law. 106 Compare Blackstone, Commentaries, ante note 18, Vol. 1, at 277, with, e.g., Dixon v. Willoughs, 2 Salk. 446, 91 Eng. Rep. 387 (1696). 107 U.S. Const. amend V ("No person shall be * * * deprived of * * * property, without due process of law; nor shall private property be taken for public use without just compensation"), amend. XIV ("No State shall * * * deprive any person of * * * property, without due process of law"). The Fourteenth Amendment, unlike the Fifth, contains no explicit "just compensation" clause. But that requirement has been held implicit in the Fourteenth Amendment's due-process guarantee. Eg., Chicago, B. & Q.R.R. v. City of Chicago, 166 U.S. 226, 236-37 (1897); Penn Central Transportation Co. v. New York City, 428 U.S. 104, 122 (1978). 108 Eg., compare Monongahela Navigation Co. v. United States, 148 U.S. 3129 324-25, 327-28 (1893), with United States v. New River Collieries, 262 U.S. 241, 343-44 (1923).

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109 Cf. Shelley v. Kraemer, 334 U.S. 1 (1948). 110 Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76-77 (1869). 111 U.S. Const. amend. X provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 112 U.S. Const. art. VI, cl. 2 provides in pertinent part that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof * * * , shall be the supreme law of the Land.” 113 Compare and contrast Passenger Cases, 48 U.S. (7 How.) 282, 399-400 (1849)(opinion of McLean, J.), with id. at 418-19 (opinion of Wayne, J.). Only Congress, of course, has power to declare base metals such as copper "legal tender"-but, as Blackstone put it, "not upon the same footing with [gold and silver].” ©1993 - National Alliance for Constitutional Money, Inc.

CONTACT INFORMATION Larry Parks, Executive Director FAME,501(c)(3) Box 625, FDR Station New York, New York 10150-0625

Phone:212-818-1206 Fax: 212-818-1197 LPARKS@FAME.ORG www.fame.org

http://www.fame.org/HTM/Vieira_Edwin_To_Regulate_the_Value_of_Money_EV-006.... 5/7/2011