sts
Constitutional Money: Don't Ask, Don't Tell
GATA Gold Rule 2011/Golden Sextant ^ | 8/7/11 | Reg. Howe
Posted on Mon Aug 08 2011 01:05:48 GMT-0500 (Central Daylight Time) by Buchal
[Remarks of RHH prepared for GATA Gold Rush 2011, The Savoy Hotel, London, England, August 4-6, 2011]
"Don't Ask, Don't Tell" may in certain situations be an appropriate response, but not to violations of the United States Constitution, particularly by those sworn to uphold it.
Prior to the Civil War, no one -- least of all the framers of the Constitution -- would have doubted Daniel Webster's 1836 statement on the Senate floor:[1]
"Most unquestionably there is no legal tender, and there can be no legal tender, in this country, under the authority of this Government or any other, but gold and silver, either the coinage of our own mints, or foreign coins, at rates regulated by Congress. This is a constitutional principle, perfectly plain, and of the very highest importance. The States are expressly prohibited from making any thing but gold and silver a tender in payment of debts; ... [A]s Congress has no power granted to it, in this respect, but to coin money, and to regulate the value of foreign coins, it clearly has no power to substitute paper, or any thing else, for coin, as a tender in payment of debts, and in discharge of contracts. ... The legal tender, therefore, the constitutional standard of value, is established, and cannot be overthrown. To overthrow it, would shake the whole system."
In response to the financial pressures of the Civil War, the federal government issued paper legal tender notes printed on just one side in green ink: the "greenbacks." Reversing itself after a change in its composition, the Supreme Court in 1870 in the Legal Tender Cases upheld by one vote the constitutionality of the greenbacks, but expressly rejected the notion that Congress could make paper money a standard of value or that the greenbacks were anything other than a promise to pay gold dollars at some future though unspecified date.[2]
In 1935 the monetary changes wrought by the New Deal came before the Supreme Court in the Gold Clause Cases.[3] Addressing the devaluation of the dollar from $20.67 to $35 per ounce of gold, the Court noted that the dollar retained its value both in silver and in purchasing power, and then by a single vote allowed the government to evade making payments at the old parity to its bondholders because dollars at the new parity had substantially the same buying power as before.[4]
Forty years ago, on August 15, 1971, President Nixon closed the gold window, severing the link between the U.S. dollar and gold that had existed since ratification of the Constitution in 1789, not to mention unilaterally terminating the post-war international monetary system agreed to at Bretton Woods in 1946. How did the Supreme Court decided the Fiat Money Cases that must then surely have come before it? Sorry, no such cases exist. They do not exist because unlimited fiat money with no credible link to gold or silver cannot be justified or excused under any plausible reading of the Constitution.
Faced with the indefensible, the Supreme Court -- indeed the entire American legal establishment from the best law schools to the highest levels of government -- adopted with respect to the monetary principles of the Constitution a policy akin to "Don't Ask, Don't Tell." The few cases that were brought challenging the constitutionality of the Nixon dollar met generally with peremptory dismissal at the trial level, citing without analysis the Legal Tender Cases and/or the Gold Clause Cases, followed by per curiam affirmance on appeal and denial of certiorari at the Supreme Court.
Many of you are familiar with the case Chris Powell describes as Howe v. All the Money in the World, or more accurately, versus All the Fiat Money in the World, also known as the Gold Price Fixing Case. Although the trial judge dismissed the price fixing claim for lack of antitrust standing, his opinion contained a reasonably neutral and detailed summary of the alleged facts regarding official efforts to suppress gold prices in an attempt to bolster the fiat dollar. Wide exposure of these allegations on the Internet coupled with the technical legal grounds for dismissing them left many with the conviction that the allegations were largely true. So the case could be judged in baseball lingo a sacrifice fly in that it advanced public understanding of the continued monetary importance of gold.
Two earlier monetary cases in which I participated could only be called strikes. The more recent involved an agreement by a city -- a state instrumentality -- to reimburse a developer for the costs of a road and utilities constructed and paid for in 1966, but only if and when the city exercised its right to allow others to use them, which it did not do until 1987. See Walter W. Fischer v. City of Dover, N.H. In 1966, of course, the dollar was still defined by law and international treaty with reference to gold; by 1987 not only had the paper dollar depreciated substantially in purchasing power, but also the United States had resumed issuing gold and silver legal tender coins.[5]
Citing the prohibition against the states making any thing but gold or silver a legal tender, the developer demanded payment in the new gold or silver legal tender coins at their declared face value. The Supreme Court of New Hampshire rejected this demand, and the Supreme Court of the United States denied certiorari, declining yet another opportunity to address the constitutional issues presented by a continuously depreciating fiat dollar.
But it should be noted that enforcement through the courts is not the only possible redress under this prohibition, which is worded in a manner that grants to the states an affirmative power to make gold or silver a legal tender within their borders. Today increasing concern over the future of the dollar has prompted several states to move in this direction.[6]
The older case, like the Gold Price Fixing Case, pitted me against a similar group of powerful defendants: the United States, the Federal Reserve Board, the Federal Open Market Committee, and the Secretary of the Treasury, at the time James Baker.[7] Taking a leaf from von Mises, who regarded sound money as "an instrument for the protection of civil liberties,"[8] I asserted that the monetary provisions of the Constitution mean to guarantee to every citizen a right to the use and benefits of lawful money, that is, money legally and credibly defined with reference to gold or silver.
Brought in 1985, this case sought to engage the attention of the Reagan administration,[9] which although elected on a platform calling for a return to the gold standard ultimately settled for the ineffective U.S. Gold Commission. See Report of the U.S. Gold Commission, Volumes I & II. To the surprise of many including the defendants' attorneys, the trial judge at the hearing on their motion to dismiss took an active and apparently sympathetic interest in my case, particularly the argument that secular depreciation in the purchasing power of unlimited fiat money undermined Article III, section 1, of the Constitution providing that federal judges shall "receive for their services, a Compensation, which shall not be diminished during their continuance in office."
But sympathetic though he was, the judge dismissed the case in a brief opinion applying the accepted formula of unexplained reliance on the Legal Tender Cases and the Gold Clause Cases, thus preparing it for quiet burial in an unmarked grave on appeal. To try to avoid this fate, I solicited supporting amicus briefs for my petition to the Supreme Court[10] from three of Harvard Law School's most prominent constitutional scholars.[11]
Two had served as Solicitor General of the United States, the government's chief counsel before the Supreme Court; one had been famously fired as Watergate special prosecutor; another was the former longtime dean of the school; and the third for many years was widely regarded as Harvard's candidate for the Supreme Court. Gracious replies from each, but no help.
None suggested that I had misread the Constitution or misconstrued the intent of the framers. Rather, in essence their collective view was that there was no possibility the Supreme Court would take the case, that the matter was too political, and anyway, what was so special about money linked to gold? As one put it: "J. M. Keynes said somewhere that the only reason for the gold standard was as a safeguard lest all the managers of the currency should suddenly go mad at once." Not surprisingly, my petition for certiorari was denied.
So here we are, with American debt and deficits running completely out of control and its banking system on life support from the Federal Reserve. Daniel Webster was right; unlimited fiat money has shaken the American constitutional system to its very foundations. The Constitution established a republic, a democratic form of government in which the powers of the majority and of the government itself are constrained by assorted means, among them a bill of rights, an independent judiciary, the separation of powers, various checks and balances, a reservation of non-delegated powers to the states or to the people, and not least the discipline of gold or silver.
That discipline seeks to restrain the natural spendthrift tendencies of all democracies, preserve equity among successive generations, and in a federal union like the United States, maintain economic and fiscal balance between the federal government and those of the states, provinces or regions. While a number of state constitutions require balanced budgets, the federal Constitution does not precisely because its framers assumed that sound constitutional money would force reasonably balanced budgets over time.
Candidate Obama argued persuasively that change would not come to Washington except through new players, but his economic team has featured the same old Keynesians responsible for creating the current economic mess in the first place. Unwilling to break from their orthodoxies, President Obama has continued down the path of saving the biggest banks, making us all slaves to this privileged elite, while at the same time trying to preserve an unaffordable welfare/warfare state.
It is long past time for real change; for a new team to include a few economists from the Austrian school; and for a new plan to deal with the nation's debt and deficits -- a plan to repair the nation's money and its credit just as adoption of the Constitution did back in 1787, when the phrase "Not worth a Continental" remained fresh in living memory.
Historically the courts have been almost as loathe to interfere in questions pertaining to war and peace or to management of the armed forces as to monetary affairs. But as the recent repeal of "Don't Ask, Don't Tell" in the military shows, this reluctance can be overcome when the president himself leads the effort to vindicate constitutional principles. Then the courts can become his powerful ally, and the threat of judicial intervention on the president's side can push Congress into supportive action.[12]
What is more, continued erosion in the purchasing power of judicial salaries has again made them a hot issue, opening the door to sympathetic consideration by the courts of sound money arguments based on the judicial compensation clause.[13] Indeed, Chief Justice Roberts himself has argued that inadequate cost-of-living increases are threatening the very independence of the judicial branch.
What should the president do?
First, declare that in his view the Constitution requires money credibly linked to gold or silver, and that absent a constitutional amendment authorizing a central bank and granting it authority to issue a wholly fiat legal tender, the national monetary system must be brought into compliance with the language, intent and wisdom of its framers. Put the blame for the nation's debt, deficits and ebbing economic vitality where it belongs: an addiction to unlimited fiat money. Explain that as with drug or alcohol addiction, the cure will not be easy, painless or quick, but the longer delayed, the worse the prognosis.
Second, commit his administration to working with Congress to develop and put in place "with all deliberate speed"[14] a new monetary system meeting constitutional requirements. The precise details of the new system and the mechanics of its link to gold or silver are less important than making the commitment to restore constitutional money and starting the debate on how to do it. Indeed, rumblings in favor of a return to gold are already beginning to be heard.[15]
Third, declare that his administration will not support a balanced budget amendment or any other amendment designed to excuse or perpetuate the failed monetary system currently administered by the Federal Reserve. Andrew Jackson brought down Nicholas Biddle's bank, and the president can bring down Ben Bernanke's.
As the president himself observed a couple of weeks ago: "At some point, I think if you want to be a leader, then you got to lead."[16] It is a measure of FDR's leadership that he was reviled on Wall Street and branded a traitor to his class.[17] President Obama should aim as high. The restoration of constitutional money would both reform Wall Street more completely than Dodd-Frank ever can and downsize the federal government beyond the worst fears of the president's base.
Ironically, the final bill for the Civil War -- the malignant constitutional precedent set by the Legal Tender Cases -- is coming due on the watch of America's first black president, whose election in 2008 fulfilled more fully than many thought possible the promise of the Civil War amendments: the Fourteenth extending equal protection of the laws and the Fifteenth voting rights to all citizens. No one owes more to the Constitution that he has sworn to uphold than President Obama, and today, win or lose in 2012, the stars have aligned to give him an opportunity to satisfy that debt by restoring the constitutional standard of value, exiting the paper road to financial and economic ruin, and retaking the golden path to a bright and prosperous future for what Lincoln called "the last best hope of earth."[18)
http://www.freerepublic.com/focus/f-news/2760261/posts
Constitutional Money: Don't Ask, Don't Tell
GATA Gold Rule 2011/Golden Sextant ^ | 8/7/11 | Reg. Howe
Posted on Mon Aug 08 2011 01:05:48 GMT-0500 (Central Daylight Time) by Buchal
[Remarks of RHH prepared for GATA Gold Rush 2011, The Savoy Hotel, London, England, August 4-6, 2011]
"Don't Ask, Don't Tell" may in certain situations be an appropriate response, but not to violations of the United States Constitution, particularly by those sworn to uphold it.
Prior to the Civil War, no one -- least of all the framers of the Constitution -- would have doubted Daniel Webster's 1836 statement on the Senate floor:[1]
"Most unquestionably there is no legal tender, and there can be no legal tender, in this country, under the authority of this Government or any other, but gold and silver, either the coinage of our own mints, or foreign coins, at rates regulated by Congress. This is a constitutional principle, perfectly plain, and of the very highest importance. The States are expressly prohibited from making any thing but gold and silver a tender in payment of debts; ... [A]s Congress has no power granted to it, in this respect, but to coin money, and to regulate the value of foreign coins, it clearly has no power to substitute paper, or any thing else, for coin, as a tender in payment of debts, and in discharge of contracts. ... The legal tender, therefore, the constitutional standard of value, is established, and cannot be overthrown. To overthrow it, would shake the whole system."
In response to the financial pressures of the Civil War, the federal government issued paper legal tender notes printed on just one side in green ink: the "greenbacks." Reversing itself after a change in its composition, the Supreme Court in 1870 in the Legal Tender Cases upheld by one vote the constitutionality of the greenbacks, but expressly rejected the notion that Congress could make paper money a standard of value or that the greenbacks were anything other than a promise to pay gold dollars at some future though unspecified date.[2]
In 1935 the monetary changes wrought by the New Deal came before the Supreme Court in the Gold Clause Cases.[3] Addressing the devaluation of the dollar from $20.67 to $35 per ounce of gold, the Court noted that the dollar retained its value both in silver and in purchasing power, and then by a single vote allowed the government to evade making payments at the old parity to its bondholders because dollars at the new parity had substantially the same buying power as before.[4]
Forty years ago, on August 15, 1971, President Nixon closed the gold window, severing the link between the U.S. dollar and gold that had existed since ratification of the Constitution in 1789, not to mention unilaterally terminating the post-war international monetary system agreed to at Bretton Woods in 1946. How did the Supreme Court decided the Fiat Money Cases that must then surely have come before it? Sorry, no such cases exist. They do not exist because unlimited fiat money with no credible link to gold or silver cannot be justified or excused under any plausible reading of the Constitution.
Faced with the indefensible, the Supreme Court -- indeed the entire American legal establishment from the best law schools to the highest levels of government -- adopted with respect to the monetary principles of the Constitution a policy akin to "Don't Ask, Don't Tell." The few cases that were brought challenging the constitutionality of the Nixon dollar met generally with peremptory dismissal at the trial level, citing without analysis the Legal Tender Cases and/or the Gold Clause Cases, followed by per curiam affirmance on appeal and denial of certiorari at the Supreme Court.
Many of you are familiar with the case Chris Powell describes as Howe v. All the Money in the World, or more accurately, versus All the Fiat Money in the World, also known as the Gold Price Fixing Case. Although the trial judge dismissed the price fixing claim for lack of antitrust standing, his opinion contained a reasonably neutral and detailed summary of the alleged facts regarding official efforts to suppress gold prices in an attempt to bolster the fiat dollar. Wide exposure of these allegations on the Internet coupled with the technical legal grounds for dismissing them left many with the conviction that the allegations were largely true. So the case could be judged in baseball lingo a sacrifice fly in that it advanced public understanding of the continued monetary importance of gold.
Two earlier monetary cases in which I participated could only be called strikes. The more recent involved an agreement by a city -- a state instrumentality -- to reimburse a developer for the costs of a road and utilities constructed and paid for in 1966, but only if and when the city exercised its right to allow others to use them, which it did not do until 1987. See Walter W. Fischer v. City of Dover, N.H. In 1966, of course, the dollar was still defined by law and international treaty with reference to gold; by 1987 not only had the paper dollar depreciated substantially in purchasing power, but also the United States had resumed issuing gold and silver legal tender coins.[5]
Citing the prohibition against the states making any thing but gold or silver a legal tender, the developer demanded payment in the new gold or silver legal tender coins at their declared face value. The Supreme Court of New Hampshire rejected this demand, and the Supreme Court of the United States denied certiorari, declining yet another opportunity to address the constitutional issues presented by a continuously depreciating fiat dollar.
But it should be noted that enforcement through the courts is not the only possible redress under this prohibition, which is worded in a manner that grants to the states an affirmative power to make gold or silver a legal tender within their borders. Today increasing concern over the future of the dollar has prompted several states to move in this direction.[6]
The older case, like the Gold Price Fixing Case, pitted me against a similar group of powerful defendants: the United States, the Federal Reserve Board, the Federal Open Market Committee, and the Secretary of the Treasury, at the time James Baker.[7] Taking a leaf from von Mises, who regarded sound money as "an instrument for the protection of civil liberties,"[8] I asserted that the monetary provisions of the Constitution mean to guarantee to every citizen a right to the use and benefits of lawful money, that is, money legally and credibly defined with reference to gold or silver.
Brought in 1985, this case sought to engage the attention of the Reagan administration,[9] which although elected on a platform calling for a return to the gold standard ultimately settled for the ineffective U.S. Gold Commission. See Report of the U.S. Gold Commission, Volumes I & II. To the surprise of many including the defendants' attorneys, the trial judge at the hearing on their motion to dismiss took an active and apparently sympathetic interest in my case, particularly the argument that secular depreciation in the purchasing power of unlimited fiat money undermined Article III, section 1, of the Constitution providing that federal judges shall "receive for their services, a Compensation, which shall not be diminished during their continuance in office."
But sympathetic though he was, the judge dismissed the case in a brief opinion applying the accepted formula of unexplained reliance on the Legal Tender Cases and the Gold Clause Cases, thus preparing it for quiet burial in an unmarked grave on appeal. To try to avoid this fate, I solicited supporting amicus briefs for my petition to the Supreme Court[10] from three of Harvard Law School's most prominent constitutional scholars.[11]
Two had served as Solicitor General of the United States, the government's chief counsel before the Supreme Court; one had been famously fired as Watergate special prosecutor; another was the former longtime dean of the school; and the third for many years was widely regarded as Harvard's candidate for the Supreme Court. Gracious replies from each, but no help.
None suggested that I had misread the Constitution or misconstrued the intent of the framers. Rather, in essence their collective view was that there was no possibility the Supreme Court would take the case, that the matter was too political, and anyway, what was so special about money linked to gold? As one put it: "J. M. Keynes said somewhere that the only reason for the gold standard was as a safeguard lest all the managers of the currency should suddenly go mad at once." Not surprisingly, my petition for certiorari was denied.
So here we are, with American debt and deficits running completely out of control and its banking system on life support from the Federal Reserve. Daniel Webster was right; unlimited fiat money has shaken the American constitutional system to its very foundations. The Constitution established a republic, a democratic form of government in which the powers of the majority and of the government itself are constrained by assorted means, among them a bill of rights, an independent judiciary, the separation of powers, various checks and balances, a reservation of non-delegated powers to the states or to the people, and not least the discipline of gold or silver.
That discipline seeks to restrain the natural spendthrift tendencies of all democracies, preserve equity among successive generations, and in a federal union like the United States, maintain economic and fiscal balance between the federal government and those of the states, provinces or regions. While a number of state constitutions require balanced budgets, the federal Constitution does not precisely because its framers assumed that sound constitutional money would force reasonably balanced budgets over time.
Candidate Obama argued persuasively that change would not come to Washington except through new players, but his economic team has featured the same old Keynesians responsible for creating the current economic mess in the first place. Unwilling to break from their orthodoxies, President Obama has continued down the path of saving the biggest banks, making us all slaves to this privileged elite, while at the same time trying to preserve an unaffordable welfare/warfare state.
It is long past time for real change; for a new team to include a few economists from the Austrian school; and for a new plan to deal with the nation's debt and deficits -- a plan to repair the nation's money and its credit just as adoption of the Constitution did back in 1787, when the phrase "Not worth a Continental" remained fresh in living memory.
Historically the courts have been almost as loathe to interfere in questions pertaining to war and peace or to management of the armed forces as to monetary affairs. But as the recent repeal of "Don't Ask, Don't Tell" in the military shows, this reluctance can be overcome when the president himself leads the effort to vindicate constitutional principles. Then the courts can become his powerful ally, and the threat of judicial intervention on the president's side can push Congress into supportive action.[12]
What is more, continued erosion in the purchasing power of judicial salaries has again made them a hot issue, opening the door to sympathetic consideration by the courts of sound money arguments based on the judicial compensation clause.[13] Indeed, Chief Justice Roberts himself has argued that inadequate cost-of-living increases are threatening the very independence of the judicial branch.
What should the president do?
First, declare that in his view the Constitution requires money credibly linked to gold or silver, and that absent a constitutional amendment authorizing a central bank and granting it authority to issue a wholly fiat legal tender, the national monetary system must be brought into compliance with the language, intent and wisdom of its framers. Put the blame for the nation's debt, deficits and ebbing economic vitality where it belongs: an addiction to unlimited fiat money. Explain that as with drug or alcohol addiction, the cure will not be easy, painless or quick, but the longer delayed, the worse the prognosis.
Second, commit his administration to working with Congress to develop and put in place "with all deliberate speed"[14] a new monetary system meeting constitutional requirements. The precise details of the new system and the mechanics of its link to gold or silver are less important than making the commitment to restore constitutional money and starting the debate on how to do it. Indeed, rumblings in favor of a return to gold are already beginning to be heard.[15]
Third, declare that his administration will not support a balanced budget amendment or any other amendment designed to excuse or perpetuate the failed monetary system currently administered by the Federal Reserve. Andrew Jackson brought down Nicholas Biddle's bank, and the president can bring down Ben Bernanke's.
As the president himself observed a couple of weeks ago: "At some point, I think if you want to be a leader, then you got to lead."[16] It is a measure of FDR's leadership that he was reviled on Wall Street and branded a traitor to his class.[17] President Obama should aim as high. The restoration of constitutional money would both reform Wall Street more completely than Dodd-Frank ever can and downsize the federal government beyond the worst fears of the president's base.
Ironically, the final bill for the Civil War -- the malignant constitutional precedent set by the Legal Tender Cases -- is coming due on the watch of America's first black president, whose election in 2008 fulfilled more fully than many thought possible the promise of the Civil War amendments: the Fourteenth extending equal protection of the laws and the Fifteenth voting rights to all citizens. No one owes more to the Constitution that he has sworn to uphold than President Obama, and today, win or lose in 2012, the stars have aligned to give him an opportunity to satisfy that debt by restoring the constitutional standard of value, exiting the paper road to financial and economic ruin, and retaking the golden path to a bright and prosperous future for what Lincoln called "the last best hope of earth."[18)
http://www.freerepublic.com/focus/f-news/2760261/posts
