All these technical controversies would be avoided if, in the statute establishing a stable dollar, the gold clause in existing contracts were abrogated entirely and unambiguous requirements were substituted to meet the new situation and carry out the real object of the gold clause.
It should be pointed out that abrogation, though beyond the power of our individual states under Article I of our Federal Constitution, is apparently quite within the power of the Federal Congress.[1]
Having thus abrogated the gold clause in all contracts outstanding at the date of the stabilization law, Congress could replace that clause by whatever provision it chose.
The provision which, on the whole, seems to me the fairest from various standpoints is to make all such contracts exactly like all others, i.e. payable in stabilized dollars.
That such a requirement would, even technically, reinstate the gold clause—under at least certain circumstances (such as the retention of gold coin as "token coin")—might well be argued, as has just been shown.
But the only justification worth while for such a law is that it would do justice and by doing justice we would, in a broad sense, be carrying out the intent of the gold clause. This clause was never intended to introduce a hazard into contracts but to take one away, not to enable one of the contracting parties to mulct the other
- ↑ This power is, I understand, well recognized in a general way although no case precisely like that here considered seems to be on record. The nearest cases were, apparently, the famous legal tender cases in reference to which the Supreme Court certified the right of Congress to make United States notes legal tender for the payment of debts contracted prior to the legislation. The legal tender act, it is true, related only to contracts to pay money generally and not to contracts to pay a specific kind of money such as "gold coin of the present weight and fineness." But Justice Bradley (12 Wall. 457, 566, 567) said: "I do not understand the majority of the Court to decide that an Act so drawn as to embrace in terms contracts payable in specie would not be constitutional. Such a decision would completely nullify the power claimed for the Government."
