ArtI.S8.C5.1.2 Punishment of Counterfeiting

Article I, Section 8, Clause 5:

[The Congress shall have Power . . .] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; . . .

In its affirmative aspect, this clause has been given a narrow interpretation; it has been held not to cover the circulation of counterfeit coin or the possession of equipment susceptible of use for making counterfeit coin. 1 At the same time, the Supreme Court has rebuffed attempts to read into this provision a limitation upon either the power of the States or upon the powers of Congress under the preceding clause. It has ruled that a state may punish the issuance of forged coins. 2 On the ground that the power of Congress to coin money imports the correspondent and necessary power and obligation to protect and to preserve in its purity this constitutional currency for the benefit of the nation,3 it has sustained federal statutes penalizing the importation or circulation of counterfeit coin, 4 or the willing and conscious possession of dies in the likeness of those used for making coins of the United States. 5 In short, the above clause is entirely superfluous. Congress would have had the power it purports to confer under the Necessary and Proper Clause; and the same is the case with the other enumerated crimes it is authorized to punish. The enumeration was unnecessary and is not exclusive. 6

Footnotes

  1.  Jump to essay-1United States v. Marigold, 50 U.S. (9 How.) 560, 568 (1850).
  2.  Jump to essay-2Fox v. Ohio, 46 U.S. (5 How.) 410 (1847).
  3.  Jump to essay-3United States v. Marigold, 50 U.S. (9 How.) 560, 568 (1850).
  4.  Jump to essay-4Id.
  5.  Jump to essay-5Baender v. Barnett, 255 U.S. 224 (1921).
  6.  Jump to essay-6Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 536 (1871).