Beyond Bretton Woods: The Constitutional Questions on Money Need To Be Answered

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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Any close observer of contemporary discussions of monetary policy must become disheartened by the tendency to treat that subject as a matter of politics, economics, and social effects, with little to no consideration of its necessary foundation in monetary law — and, even more to the point, of the dependence of monetary law on the Constitution of the United States.

Yet it would seem axiomatic that, to be taken seriously, any monetary policy must be based upon the legally (rather than merely politically) correct answers to certain salient questions, such as:

• What is a “dollar”?

• What may the governments of the United States, and of the several States, designate as “legal tender” for “dollars”?

• Is Congress authorized to emit, directly from the Treasury or by delegation of such an authority to private entities, “bills of credit” (the Founders’ term for paper currency), whether or not redeemable in “dollars”?

• Is the Federal Reserve System a cartel of private banks the statutorily conferred powers of which should be condemned “as a delegation of legislative power . . . unknown to our law and . . . utterly inconsistent with the constitutional prerogatives and duties of Congress,” as the Supreme Court put it in the case* that ended the New Deal?

• Are Federal Reserve Notes (of whatever denominations) actual “dollars,” or merely promises of the Federal Reserve Banks and the Treasury of the United States to pay their face values in “lawful money” on demand? And if mere promises to pay, can such notes be made “legal tender” for actual “dollars”?

• To what extent, if at all, were President Franklin Roosevelt’s domestic seizure of gold from American citizens in 1933-1934 and President Richard Nixon’s closure of “the gold window” internationally in 1971 constitutional? And could actions of that sort be considered legitimate under contemporary conditions?

• Can the United States by treaty (or other international agreement), or by a statute enacted to implement a treaty (or agreement), disregard or change any provision of the Constitution which deals with money? And

• May the several States adopt a monetary system based on gold and silver as legal tender in payment of debts, so as to provide their citizens with an alternative to the Federal Reserve System; and would such an arrangement be beyond the power of Congress to interdict or otherwise control?

Yet, notwithstanding that the answers to these and kindred questions provide the necessary foundation for a properly comprehensive discussion of monetary policy, the silence is deafening. Such reticence does a disservice, not just to policy-makers within the government (all of whom take an oath or affirmation to support the Constitution), but also to the public. To make a decision, they need answers to the questions outlined here. In this sense, continued silence is anything but golden.

________

* A.L.A. Schechter Poultry Corp. v. United States.

Mr. Vieira, a lawyer, is author of “Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution.” Drawing by Elliott Banfield, courtesy of the aritst.


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