WI No Counterfeiting Clause

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)
 
I love legal questions of this type.

My first thought was that there's a difference in language between the counterfeiting clause and the coinage clause, which are in Article 1 by the way, not Article 2. Specifically, the counterfeiting clause refers to "the Securities and current Coin of the United States." while the coinage clause says "To coin Money, regulate the Value thereof, and of foreign Coin". the counterfeiting clause includes "Securities". So, if the power to punish counterfeiting is derived from the necessary and proper clause it could be deemed to apply only to the coin of the United States and not extend to securities. Though I'm doubtful of that as it would be an extraordinarily strict construction and the necessary and propler clause would probably grant that power over securities via clause 2 which grants the power to "borrow Money on the credit of the united States". This might depend on the exact definitions of security and coin.

The other thing I thought of is that the power to establish a uniform system of weights and measures is also granted by Article 1, section 8, clause 5. So without a distinct counterfeiting clause we could see things like using false weights and such wrapped into counterfeighting legislation. While it would be very interesting I don't know if it would be terribly significant.


Lastly, I'm inclined to agree with you that we shouldn't assume that the Constitution is devoid of superflous provisions. As you say, all laws contain portions that are redundant and the circumstances the Constitution was written in indicate that they were under at least as much pressure to write it as any other lawmakers. That leads to failure to consider every possibility that a part might be superflous and implied by another. So yes, I agree that it may well be considered superfluous.
 
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