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Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Power to Coin Money and Fix the Standard of Weights and Measures
§ 1111. THE next power of congress is “to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.”
§ 1112. Under the confederation, the continental congress had delegated to them, “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 states,” and “fixing the standard of weights and measures throughout the United States.” It is observable, that, under the confederation, there was no power given to regulate the value of foreign coin, an omission, which in a great measure would destroy any uniformity in the value of the current coin, since the respective states might, by different regulations, create a different value in each.1 The constitution has, with great propriety, cured this defect; and, indeed, the whole clause, as it now stands, does not seem to have attracted any discussion in the convention.2 It has been justly remarked, that the power “to coin money” would, doubtless, include that of regulating its value, had the latter power not been expressly inserted. But the constitution abounds with pleonasms and repetitions of this nature.3
§ 1113. The grounds, upon which the general power to coin money, and regulate the value of foreign and domestic coin, is granted to the national government, cannot require much illustration in order to vindicate it. The object of the power is to produce uniformity of value throughout the Union, and thus to preclude us from the embarrassments of a perpetually fluctuating and variable currency. Money is the universal medium or common standard, by a comparison with which the value of all merchandise may be ascertained, or, it is a sign, which represents the respective values of all commodities.4 It is, therefore, indispensable for the wants and conveniences of commerce, domestic as well as foreign. The power to coin money is one of the ordinary prerogatives of sovereignty, and is almost universally exercised in order to preserve a proper circulation of good coin of a known value in the home market. In order to secure it from debasement it is necessary, that it should be exclusively under the control and regulation of the government; for if every individual were permitted to make and circulate, what coin he should please, there would be an opening to the grossest frauds and impositions upon the public, by the use of base and false coin. And the same remark applies with equal force to foreign coin, if allowed to circulate freely in a country without any control by the government. Every civilized government, therefore, with a view to prevent such abuses, to facilitate exchanges, and thereby to encourage all sorts of industry and commerce, as well as to guard itself against the embarrassments of an undue scarcity of currency, injurious to its own interests and credits, has found it necessary to coin money, and affix to it a public stamp and value, and to regulate the introduction and use of foreign coins.5 In England, this prerogative belongs to the crown; and, in former ages, it was greatly abused; for base coin was often coined and circulated by its authority, at a value far above its intrinsic worth; and thus taxes of a burthensome nature were laid indirectly upon the people.6 There is great propriety, therefore, in confiding it to the legislature, not only as the more immediate representatives of the public interests, but as the more safe depositaries of the power.7
§ 1114. The only question, which could properly arise under our political institutions, is, whether it should be confided to the national, or to the state government. It is manifest, that the former could alone give it complete effect, and secure a wholesome and uniform currency throughout the Union. The varying standards and regulations of the different states would introduce infinite embarrassments and vexations in the course of trade; and often subject the innocent to the grossest frauds. The evils of this nature were so extensively felt, that the power was unhesitatingly confided by the articles of confederation exclusively to the general government,8 notwithstanding the extraordinary jealousy, which pervades every clause of that instrument. But the concurrent power thereby reserved to the states, (as well as the want of a power to regulate the value of foreign coin,) was, under that feeble pageant of sovereignty, soon found to destroy the whole importance of the grant. The floods of depreciated paper money, with which most of the states of the Union, during the last war, as well as the revolutionary war with England, were inundated, to the dismay of the traveller and the ruin of commerce, afford a lively proof of the mischiefs of a currency exclusively under the control of the states.9
§ 1115. It will be hereafter seen, that this is an exclusive power in congress, the states being expressly prohibited from coining money. And it has been said by an eminent statesman,10 that it is difficult to maintain, on the face of the constitution itself and independent of long continued practice, the doctrine, that the states, not being at liberty to coin money, can authorize the circulation of bank paper, as currency, at all. His reasoning deserves grave consideration, and is to the following effect. The states cannot coin money. Can they, then, coin that, which becomes the actual and almost universal substitute for money? Is not the right of issuing paper, intended for circulation in the place, and as the representative of metallic currency, derived merely from the power of coining and regulating the metallic currency? Could congress, if it did not possess the power of coining money and regulating the value of foreign coins, create a bank with the power to circulate bills? It would be difficult to make it out. Where, then, do the states, to whom all control over the metallic currency is altogether prohibited, obtain this power? It is true, that in other countries, private bankers, having no legal authority over the coin, issue notes for circulation. But this they do always with the consent of government, express or implied; and government restrains and regulates all their operations at its pleasure. It would be a startling proposition in any other part of the world, that the prerogative of coining money, held by government, was liable to be defeated, counteracted, or impeded by another prerogative, held in other hands, of authorizing a paper circulation. It is further to be observed, that the states cannot issue bills of credit; not that they cannot make them a legal tender; but that they cannot issue them at all. This is a dear indication of the intent of the constitution to restrain the states, as well from establishing a paper circulation, as from interfering with the metallic circulation. Banks have been created by states with no capital whatever, their notes being put in circulation simply on the credit of the state. What are the issues of such banks, but bills of credit issued by the state?11
§ 1116. Whatever may be the force of this reasoning, it is probably too late to correct the error, if error there be, in the assumption of this power by the states, since it has an inveterate practice in its favour through a very long period, and indeed ever since the adoption of the constitution.
§ 1117. The other power, “to fix the standard of weights and measures,” was, doubtless, given from like motives of public policy, for the sake of uniformity, and the convenience of commerce.12 Hitherto, however, it has remained a dormant power, from the many difficulties attendant upon the subject, although it has been repeatedly brought to the attention of congress in most elaborate reports.13 Until congress shall fix a standard, the understanding seems to be, that the states possess the power to fix their own weights and measures;14 or, at least, the existing standards at the adoption of the constitution remain in full force. Under the confederation, congress possessed the like exclusive power.15 In England, the power to regulate weights and measures is said by Mr. Justice Blackstone to belong to the royal prerogative.16 But it has been remarked by a learned commentator on his work, that the power cannot, with propriety, be referred to the king’s prerogative; for, from Magna Charta to the present time, there are above twenty acts of parliament to fix and establish the standard and uniformity of weights and measures.17
§ 1118. The next power of congress is, “to provide for the punishment of counterfeiting the securities and current coin of the United States.” This power would naturally flow, as an incident, from the antecedent powers to borrow money, and regulate the coinage; and, indeed, without it those powers would be without any adequate sanction. This power would seem to be exclusive of that of the states, since it grows out of the constitution, as an appropriate means to carry into effect other delegated powers, not antecedently existing in the states.18
1. The Federalist, No. 42.
2. Journ. of Convention, 220, 257, 357.
3. Mr. Madison’s Letter to Mr. Cabell, 18th Sept. 1828.
4. 1 Black. Comm. 276.
5. Smith’s Wealth of Nations, B. 1, ch. 4.
6. 1 Black. Comm. 278; Christian’s note, 21; Darien’s Rep. 48; 1 Hale’s Pl. Cr. 192 to 196.
7. 1 Tucker’s Black. Comm. App. 261.
8. Art. 9.
9. During the late war with Great Britain, (1812 to 1814,) in consequence of the banks of the Middle, and Southern, and Western states having suspended specie payments for their bank notes, they depreciated as low as 95 per cent. discount from their nominal value. The duties on imports were, however, paid and received in the local currency; and the consequence was, that goods imported at Baltimore paid 20 per cent. less duty, than the same goods paid, when imported into Boston. This was a plain practical violation of the provision of the constitution, that all duties, imports, and excises shall be uniform.
10. Mr. Webster’s Speech on the Bank of the United States, 25th and 28th of May, 1832.
11. This opinion is not peculiar to Mr. Webster. It was maintained by the late Hon. Samuel Dexter, one of the ablest statesmen and lawyers, who have adorned the annals of our country.
12. The Federalist, No. 49.
13. Among these. none are more elaborate and exact, than that of Mr. Jefferson and Mr. J. Q. Adams, while they were respectively at the head of the department of state.
14. Rawle on the Constitution, ch. 9, p. 102.
15. Art. 9.
16. 1 Black. Comm. 276.
17. 1 Black. Comm. 276; Christian’s note, (16.)
18. See Rawle on Constitution, ch. 9, p. 103; The Federalist, No. 49.