Bickers on the Legal Tender Cases

John M. Bickers, Northern Kentucky University Salmon P. Chase College of Law, has posted Greenbacks, Consent, and Unwritten Amendments:

“We the people,” the Constitution begins, setting forth the core republican principle that the American government would henceforward be one based upon the consent of the governed. Yet after that announcement the Constitution set forth written rules of varied levels of specificity that clearly mean to bind future generations of those same people. One set of those rules establishes a complicated set of options for amendment: the authors at the end of the eighteenth century made it quite difficult for anything less than a future double supermajority to change their work.

Yet over the centuries there have been countless changes to the society governed by this formative document. The originalist judicial philosophy would prevent such changes from occurring unless they were at least countenanced by the original public understanding of the Constitution among those who made (that is to say, ratified) the document. Other philosophies argue that the current people have a right to remake the Constitution outside of the formal amendment process, an idea resisted fiercely by the originalists. Some thinkers have speculated about the possibility of discovering, at two centuries of remove, an unusual but consistently held view of the founding generation: would the discovery invalidate experiments the United States had adopted in the interim?

No such speculation truly needs to be engaged, as the preeminent example of this puzzle is offered on sheets of paper found in almost every wallet. Each sample of U.S. paper money contains the confident, all-capital phrase “THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE.” The population accepts this assertion. But it has not been ever thus.

Just a century and a half ago, a challenge to the Civil War issuance of paper money as legal tender made its way to the U.S. Supreme Court. There, Chief Justice Salmon P. Chase authored an opinion denouncing this legal innovation that had occurred under the watchful eye of Treasury Secretary Salmon P. Chase. Although some legal scholars have argued that he was wrong, most of the legal world has accepted Chase’s analysis: the Constitution prohibited the adoption of paper money as legal tender by text, by the understanding of those who wrote the text, and by the original meaning ascribed to the text by the portion of the public that ratified it.

Chase’s decision sent shock waves through an American economy that had quickly become reliant on this new device. There is evidence that the search for new Supreme Court justices focused to some degree on finding people who would reject Chase’s originalism in favor of letting We the People decide the issue. When two newly appointed justices joined the Court and reconsidered the matter just a year after the rejection by Chase, they embraced paper money. The embrace of paper money as legal tender remains to this day.

The triumph of that second of the Legal Tender Cases was so complete that Americans today are frequently confident that the use of the phrase “coin money” in the constitutional powers of Congress is meant metaphorically. Chase’s solid demonstration that it was nothing of the kind has faded from the consciousness of all but a few specialists.

What does this unwritten amendment of Congress’s powers mean, then, for the role of consent of the governed? For if the Constitution must be limited to its original public meaning, the United States should immediately revert to an economy suitable for the first years of the Republic, when the decision whether to accept paper in payment of debt was the choice of the individual, and the government could only compel acceptance of coins. Yet that, surely, is not an idea to which more than a bare handful of contemporary Americans would consent.

If “consent of the governed” means consent by those current Americans, they evince it by continue to live in the America of their understanding. They demonstrate such consent to unwritten amendments every time they offer or accept cash believing that the claim made on the face of the bill is true.

–Dan Ernst.