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The Federal War on Gold
by Jacob G. Hornberger, Posted January 15, 2007

Given the rising price of gold and the fact that federal spending is totally out of control, the prospect of gold confiscation and criminalizing the private ownership of gold by federal authorities inevitably rears its ugly head.

There are few things that federal big spenders hate more than gold. Why? Because they know that, historically, gold has provided the best means by which people could protect themselves against the ravages of a rapidly depreciating currency.

The mainstream press often uses the term “inflation” to describe rising prices. That’s incorrect. Actually, when the general price level is rising, that’s a result of inflation, not inflation itself. Inflation is the process by which governments print up the money to pay for ever-increasing expenditures.

Why not instead simply increase taxes on people in order to get the money to pay for the soaring expenses? There’s an obvious reason: Taxes make people angry at government officials. It’s much easier and safer to simply print the money because then most people have absolutely no idea that the government is behind what is happening.

When prices of commodities, goods, and services start rising in response to the depreciating quality of the money, the average person is likely to blame those in the private sector, such as oil companies, speculators, and businessmen, for the woes.

Being unaware of economic principles, people will even demand that federal officials impose price controls and excess- profits taxes on the evil offenders, a demand that the authorities are often willing to oblige.

That’s why inflation has always been the best friend of big spenders in government. Although clearly a fraudulent way to finance government operations, history has proven that the possibility that such fraud will be figured out by an ignorant and trusting citizenry is minute.

Money and the Constitution

Such ignorance and such trust in government did not characterize our American forefathers. Having studied economics and monetary history and having experienced the ravages of inflation firsthand with the Continental currency, they decided to establish a monetary system based on gold and silver coin rather than paper money.

They knew that while the government could still debase the currency by “clipping” a bit of each gold coin it received before putting the coins back into circulation — a process of plunder that governments used before the printing press was invented — that was a relatively small danger, especially compared with paper money, which could be expanded at will through the printing press.

A close reading of the Constitution — the document whose purpose was to protect the American people from federal officials — leaves little room for doubt about the intentions of the Framers. As you read the following excerpts from the Constitution, ask yourself: Did the Framers intend for our country to have a monetary system based on gold and silver coins or on paper money?

The plain meaning of those words can lead but to one conclusion: The Framers rejected paper money in favor of money they could coin, which meant gold and silver coins. And that, in fact, is what happened. From the very inception of our nation and through most of the 1800s and early 1900s, the American people used gold and silver coin as their money.

While the system wasn’t perfect in that it still left the determination of money under government control rather than the free market, there were nevertheless two remarkable results of this system.

One, the gold standard eliminated the power of federal officials to do what governments had historically done to their citizenry — plunder and loot the people through the issuance of depreciating paper money.

Two, the gold standard had an enormously positive effect on capital markets, which was one of the major contributing factors for the tremendous economic expansion and prosperity that characterized the United States through most of the 19th and early 20th centuries.

Borrowing and paper money

Among the other powers given Congress in Article 1, Section 8, were the power “To lay and collect Taxes, Duties, Imposts and Excises . . . .” and the power “To borrow Money on the credit of the United States....”

These two powers were not inconsistent with a monetary system based on gold and silver coin. People paid their taxes with their money, which meant gold and silver coins. And if government wished to borrow money from the citizenry, it would issue a promissory note or “bill” promising to pay back the gold coin that it received from the lender. But everyone understood that the actual money was the gold or silver coins, not the promissory notes. The notes simply evidenced the promise to repay the money.

“Bills of credit,” which Article 1, Section 8, prohibited the states from “emitting,” were commonly understood to be paper money. That part of the Constitution expressly prohibited the states from issuing paper money.

Why isn’t there a similar constitutional restriction for the federal government? The answer lies in the overall philosophy of the Constitution. In establishing the federal government, the Constitution made clear that the government’s powers were limited to those enumerated in the Constitution. If a power wasn’t enumerated, it was understood that it could not be exercised.

Thus, the relevant inquiry would be: Was the power to emit bills of credit (that is, issue paper money) among the express powers granted to Congress? The answer is “no.” The power that was given was “to coin money,” something that most everyone would concede is difficult to do out of paper. The power to “regulate the Value thereof” simply meant that the Congress would have the power, for example, to decide the exact weight and fineness of metal that would go into a gold coin or a silver coin.

The paper money of today still contains a hint of what it once represented — a promise to pay money, rather than money itself. Take a dollar bill out of your billfold. Notice that at the top it states, “Federal Reserve Note.” Why is it called a “note”? Because it represents, somewhat perversely, what such a note once constituted for our American ancestors — a promise to pay something, namely gold. Today, such notes are what is termed “irredeemable” — that is, they cannot be redeemed in gold or silver coin. They are promises to pay nothing.

Thus, while the federal government could borrow money (i.e., gold and silver) from the private sector, its bills and notes evidencing the debt did not — and could not — legally circulate as money.

However, there was one type of paper money that began circulating in the late 1800s and early 1900s, but it was totally different from promissory notes. This paper money consisted of what were called gold certificates and silver certificates. They worked like this: A person would deposit, say, $5,000 in gold coins with the U.S. Treasury and receive in return a certificate certifying that $5,000 had been deposited. Thus, the certificate was in the nature of a warehouse receipt rather than a loan. At first, the certificates were issued in the name of the depositor. Over time, they began to be issued in the name of “bearer,” which meant that the holder of the certificate could transfer it to another person, who could then go to the Treasury, present the certificate, and receive his gold.

A monetary revolution

So how did things change so dramatically? How did it come to be that the monetary system of the United States is now based on irredeemable paper money? Why are gold and silver coins and gold and silver certificates no longer used as our country’s money? Given that there was never a constitutional amendment changing America’s monetary system, how did things change so radically?

The answer lies with two presidents — Abraham Lincoln and Franklin D. Roosevelt. Their respective actions revolutionized our nation’s monetary system. Their actions culminated in a monetary system that has enabled federal authorities, decade after decade, to fraudulently plunder and loot the American people, even to the point of denying them the ideal means — ownership of gold — by which to protect themselves from the federal government’s immoral and insidious monetary behavior.

Presidents Abraham Lincoln and Franklin Roosevelt revolutionized the monetary system of the United States and set the nation on the road of inflationary plunder that has characterized other nations in history. The actions of these two presidents also provide a textbook example for understanding the animosity and antipathy that government officials historically have had toward precious metals (i.e., gold and silver coin) as a medium of exchange.

Through the U.S. Constitution, the American people brought into existence one of the soundest monetary systems in history. It wasn’t perfect in that it didn’t provide for a free market in money, but, by establishing gold and silver coin as the official money for the United States, it did protect the American people from the inflationary ravages of paper money.

Keep in mind, first, that our American ancestors didn’t trust government, for they understood that the greatest threat to the liberty and well-being of a citizenry lay with its own government.

Thus, while the Constitution brought the federal government into existence, it simultaneously limited its powers to those enumerated in the document. If the power wasn’t listed, it simply could not be exercised, no matter how important the need, no matter how severe the crisis or emergency. To make certain that government officials got the message, soon after the Constitution was enacted several amendments were added providing guarantees and expressly enumerating fundamental rights that federal officials could not violate.

It bears repeating: The Constitution was born from the severe distrust that our American ancestors had for the federal government. They understood what people throughout history had learned the hard way — that more often than not, people had lost their freedom at the hands of their own government.

One of the ways that our ancestors attempted to protect their freedom and property from federal assault was through the establishment of a monetary system based on precious metals, specifically gold and silver coin.

As students of history, they understood the inflationary horrors that governments all over the world had inflicted on their citizenry through the issuance of paper money. Moreover, they themselves had experienced the ravages of the Continental currency during the Revolutionary War (“It’s not worth a Continental”) and the inflationary damage during the period of the Articles of Confederation, when the states were free to issue paper money.

Thus, it is not surprising that the Framers would establish a monetary system based on gold and silver coin. They wanted to ensure that their own government could not use the printing press to plunder and despoil them through the issuance of paper money.

Lincoln’s war loans

Then, along came Lincoln.

In 1862, Congress granted Lincoln’s request to issue $150 million in Treasury notes to finance the war effort during the War Between the States. In simple terms, the federal government was borrowing money, and the money it was borrowing was the gold and silver coins that had been established as the legal money under the Constitution.

The situation would be comparable to a person who walked into a bank in 1862 and asked to borrow $10,000. If the loan were granted, the customer would sign a promissory note promising to pay the bank $10,000, and the bank in turn would deliver $10,000 in gold coin to the customer. When the note came due, the customer would be required to pay the bank back $10,000 in gold coin and he would receive back his promissory note with the notation “Paid” or “Cancelled” on it.

To belabor the obvious, the money was the gold coins. The note was a promise to repay the money, not money itself.

The same principle held true with respect to the Treasury notes authorized to be issued by the Lincoln administration. Everyone understood that the notes didn’t constitute money but rather were a promise to pay back money (i.e., gold coins) it received in exchange for the notes. When the notes came due, the Treasury would have to repay the lender in money — that is, in gold coins.

Given that the power to borrow money was among the powers that the Constitution delegated to Congress, there was obviously nothing unconstitutional about what Congress had done . . . except for one major factor that ultimately formed the basis for one of the most revolutionary transformations in American life: at the same time it authorized the issuance of the Treasury notes, Congress provided that the notes would constitute “legal tender.”

Lincoln’s legal-tender law

What did “legal tender” mean? It meant paper money. And it meant that for the first time since the founding of the nation, Americans would be required to accept the federal government’s paper money as a medium of exchange.

Why was that important to Abraham Lincoln? Like so many other government officials in history, Lincoln was resorting to the printing press — inflation — to finance his war expenditures.

In 1862, Treasury notes were trading at a deep discount relative to their face value. For example, a note promising to pay $1,000 might fetch in the marketplace only $500 because of the doubts that people had regarding the federal government’s ability to repay the loans in gold when they ultimately came due.

In the absence of the legal-tender law, even though the government could continue borrowing money, people could still protect themselves from the ravages of inflation by stipulating their contracts in gold coin. The effect of the legal-tender law was to remove that protection by requiring creditors to accept depreciated paper money in lieu of gold and silver coin stipulated in the contract.

That was exactly what happened to Henry Griswold and many other people. Prior to the enactment of the legal-tender law, Griswold had lent $11,250 to Susan Hepburn. Obviously, both parties understood that when the note came due Hepburn would be required to repay the debt in the medium in which she had received the loan — gold coin.

When the note came due, however, Hepburn delivered to Griswold paper money — that is, U.S. Treasury notes that were the subject of the legal-tender laws. Griswold objected because the notes, while nominally in the sum of $11,250, were worth significantly less in the marketplace.

In other words, what Hepburn effectively did was go into the marketplace and use, say, $5,000 in gold coin to purchase $11,250 in Treasury notes and then handed the notes to Griswold in payment of the debt. He refused to accept the payment and instead demanded gold coin with a face value of $11,250 plus interest owed.

The Supreme Court’s ruling

Hepburn v. Griswold reached the U.S. Supreme Court in 1869, five years after the war had ended. The Court ruled in favor of Griswold, holding in a 4-3 decision that legal-tender laws violated the U.S. Constitution.

The majority opinion distinguished between money and notes to pay money:

The Court also explained that the power to coin money, which the Constitution delegates to Congress, did not constitute a power to convert promissory notes into money:

It is certainly not the same power as the power to coin money.

With the holding in Griswold, the federal government was left with the power to borrow to finance its operations but without the authority to force people to accept its notes at face value for the payment of debts. Thus, the American people could still protect themselves from a profligate government by expressly providing that notes and contracts could be repaid only in money (i.e., gold coin), not in federal promises to repay money.