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for believing that making the notes of the Government a legal tender for debts may fairly be held necessary and proper for the exercise of some of the powers granted in the Constitution.[1]

1. This power is really involved in the power of issuing or authorizing a paper currency. That power may be derived from the power to regulate commerce, as Hamilton seems to have derived it, in urging upon Washington the signing of the Bank Act, at the outset of the government.[2] “The bank,” he says, “will be conducive to the creation of a medium of exchange between the States and the keeping up of a full circulation. . . . . Money is the very hinge on which commerce turns.” And he adds that the whole or the greatest part of the coin in the country may be carried out of it. Years before[3] Hamilton had condemned as visionary the notion that coin was adequate to the purposes of currency. This power of providing a paper currency is variously accounted for. In the Veazie Bank case,[4] the Court, while declaring it, did not state where it was found. Webster derived it from


  1. It is not necessary to emphasize the point in regard to this question, but it is worth remarking, as we pass, that courts, in declining to pronounce a legislative act unconstitutional, are not, in reality, required to hold any distinct, affirmative opinion that the measure is constitutional. They are engaged in revising the action of another department of the government, and their duty is indicated in Cooley’s phrase: “To be in doubt, therefore, is to be resolved, and the resolution must support the law.” (Princ. Const. Law. 153.) It is still more plainly indicated by such a statement as that of Mr. Justice Thomas (Opinion of the Justices, 8 Gray, p. 21) when he sustains the constitutionality of an act of the legislature “upon the single ground that the act is not so clearly unconstitutional, its invalidity so free from reasonable doubt, as to make it the duty of the judicial department, in view of the vast interests involved in the result, to declare it void.” It is not a difficult inference from these expressions that the judge’s own opinion was, that this act was, in fact, not warranted by the Constitution. To the like effect is the very common expression of the judges that, in order to justify the judicial declaration that legislation is unconstitutional, the fact must be plain “beyond a reasonable doubt.” Ogden v. Saunders, 12 Wheat., at p. 270, per Washington, J.; Sinking Fund Cases, 99 U. S., at p. 718, per Waite, C.J.; Wellington, Pet’r., 16 Pick., at p. 95, per Shaw, C.J.; People v. Sup. of Orange, 17 N. Y., at p. 241, per Harris, J.; Cooley Const. Lim. 183. See Von Holst Const. Law of U.S. 64, 65 (Chicago, 1887). The remark that the Constitution is a law, and, therefore, can have but one allowable interpretation, and that one the interpretation given to it by the Court, overlooks the essential peculiarity of that form of law which we call a Constitution. See a letter to the Nation of April 10, 1884, in which the present writer has enlarged upon this topic. One must not, to be sure, emphasize too heavily a single expression, like this of a “reasonable doubt.” But an analysis of the reasons for the general principles adopted by Courts in passing upon the constitutionality of legislation will be found to lead to very important conclusions; and these are well intimated by that expression and its connotation in other parts of the law.
  2. Lodge’s Works of Hamilton, Ⅲ. 213.
  3. In 1781, letter to R. Morris, Ib. 102.
  4. 8 Wall. 533.