On the surface, the most superfluous provision of the US Consitution appears to be the counterfeiting clause in Article 2, Section 8: Congress shall have power "To provide for the Punishment of counterfeiting the Securities and current Coin of the United States." http://www.archives.gov/exhibits/charters/constitution_transcript.html
Why does this seem to be superfluous? Because the same section gives Congress power "To coin Money, regulate the Value thereof, and of foreign Coin" and "To borrow Money on the credit of the United States" Surely these powers, combined with even the narrowest plausible interpretation of the Necessary and Proper Clause, would give Congress power to punish counterfeiting. (It makes about as much sense as having a provision that Congress may punish the robbery of post offices--such a power would be implicit in the power to establish post offices.) No wonder Justice Story wrote in his Commentaries on the Constitution that "This power would naturally flow, as an incident, from the antecedent powers to borrow money, and regulate the coinage; and, indeed, without it those powers would be without any adequate sanction." http://www.constitution.org/js/js_317.htm
The main justiification that I have seen for the counterfeiting clause is this: Under British law, counterfeiting was considered treason, [1] which was often punished by parliamentary bills of attainder. The US Constitution, however, adopted a narrower definition of treason, one beyond the power of Congress to expand; and it also prohibited bills of attainder. Without the counterfeiting clause, therefore, it might be inferred that Congress was without power to punish the formerly treasonous offense of counterfeiting!
The only problem with this justification is that I have a hard time seeing any court accept the argument that anything that was within the British definition of treason but is not punishable *as treason* under the American Constitution is not punishable *at all* by Congress, no matter how clearly it comes under the scope of one or more of Congress's delegated powers, and no matter how clearly it is not protected by the Bill of Rights or any other specific limitation of congressional power. [2] By that logic, one might argue that Congress could not prohibit the assassination of the President, since killing the King was treason under British law...
(One reason I raise the question is this: Courts sometimes say that we should not assume that any provision of the Constitution is superflous. I say that we *should* assume that it contains superflous provisions, like most laws in the real world. Limited time for drafting, plurality of authorship, wanting to make something one has just thought of explicit without noticing it is already clearly implied, etc.--why assume that the Consitution is immune from all these common causes of superflous language in statutes?)
[1] According to J. Willard Hurst, *The American law of Treason*, http://www.constitution.org/cmt/jwh/jwh_treason_4.htm "It was included in the Statute of Edward III apparently because of borrowing of the Roman concept that the offense was a sacrilege against the emperor, whose image appeared on the coin, or perhaps also as a protection of what was regarded as a personal prerogative of the king, and not because it was regarded as a political offense See 2 Pollock and Maitland, History of English Law (2d
ed. 1923) 505, 3 Holdsworth 289"
[2] The power to punish counterfriting, like other congressional powers, is subject to First Amendment limitations; see *Regan v. Time, Inc.,* 468 US 641 (1984). http://supreme.justia.com/us/468/641/case.html (a portion of the statute permitting limited reproduction of United States currency "for philatelic, numismatic, educational, historical, or newsworthy purposes" struck down as being content-based)
Why does this seem to be superfluous? Because the same section gives Congress power "To coin Money, regulate the Value thereof, and of foreign Coin" and "To borrow Money on the credit of the United States" Surely these powers, combined with even the narrowest plausible interpretation of the Necessary and Proper Clause, would give Congress power to punish counterfeiting. (It makes about as much sense as having a provision that Congress may punish the robbery of post offices--such a power would be implicit in the power to establish post offices.) No wonder Justice Story wrote in his Commentaries on the Constitution that "This power would naturally flow, as an incident, from the antecedent powers to borrow money, and regulate the coinage; and, indeed, without it those powers would be without any adequate sanction." http://www.constitution.org/js/js_317.htm
The main justiification that I have seen for the counterfeiting clause is this: Under British law, counterfeiting was considered treason, [1] which was often punished by parliamentary bills of attainder. The US Constitution, however, adopted a narrower definition of treason, one beyond the power of Congress to expand; and it also prohibited bills of attainder. Without the counterfeiting clause, therefore, it might be inferred that Congress was without power to punish the formerly treasonous offense of counterfeiting!
The only problem with this justification is that I have a hard time seeing any court accept the argument that anything that was within the British definition of treason but is not punishable *as treason* under the American Constitution is not punishable *at all* by Congress, no matter how clearly it comes under the scope of one or more of Congress's delegated powers, and no matter how clearly it is not protected by the Bill of Rights or any other specific limitation of congressional power. [2] By that logic, one might argue that Congress could not prohibit the assassination of the President, since killing the King was treason under British law...
(One reason I raise the question is this: Courts sometimes say that we should not assume that any provision of the Constitution is superflous. I say that we *should* assume that it contains superflous provisions, like most laws in the real world. Limited time for drafting, plurality of authorship, wanting to make something one has just thought of explicit without noticing it is already clearly implied, etc.--why assume that the Consitution is immune from all these common causes of superflous language in statutes?)
[1] According to J. Willard Hurst, *The American law of Treason*, http://www.constitution.org/cmt/jwh/jwh_treason_4.htm "It was included in the Statute of Edward III apparently because of borrowing of the Roman concept that the offense was a sacrilege against the emperor, whose image appeared on the coin, or perhaps also as a protection of what was regarded as a personal prerogative of the king, and not because it was regarded as a political offense See 2 Pollock and Maitland, History of English Law (2d
ed. 1923) 505, 3 Holdsworth 289"
[2] The power to punish counterfriting, like other congressional powers, is subject to First Amendment limitations; see *Regan v. Time, Inc.,* 468 US 641 (1984). http://supreme.justia.com/us/468/641/case.html (a portion of the statute permitting limited reproduction of United States currency "for philatelic, numismatic, educational, historical, or newsworthy purposes" struck down as being content-based)