Page:Harvard Law Review Volume 1.djvu/91

 The argument as regards this last point, which Mr. Webster’s expressions suggest, has been forcibly put by Mr. Holmes (now Mr. Justice Holmes, of the Supreme judicial Court of Massachusetts), thus: “It is hard to see how a limited power, which is expressly given, and which does not come up to a desired height, can be enlarged as an incident to some other express power; an express grant seems to exclude implications; the power to coin money means to strike off metallic medals (coins) and to make those medals legal tender (money). If the Constitution says expressly that Congress shall have power to make metallic legal tender, how can it be taken to say by implication that Congress shall have power to make paper legal tender?” In another place Mr. Holmes again uses this argument and declares it to be, in his opinion, unanswerable. Mr. Justice Field, in the Legal Tender Cases presses the same reasoning, in his dissenting opinion, and adds: “When the Constitution says that Congress shall have the power to make metallic coins legal tender, it declares in effect that it shall make nothing else such tender.” To which Mr. Holmes adds, “We should prefer to say, it excludes the implication of a grant of more extensive powers.”

This reasoning seems to me obviously defective.

(1.)It does not take the language of the Constitution as it stands. It puts a construction on it, viz.: that money and legal tender are here synonymous; and reasons as if this part of the Constitution contained the expression “legal tender.” The Constitution does not, in terms, say that Congress may make coin a legal tender, although, truly, the power is not wanting; but it says nothing about legal tender. The argument, then, that the express grant of power to make coin a tender excludes the implication of a power to make anything else a tender, is inapplicable to the actual text of the Constitution.

(2.)This construction appears to be wrong. The Constitution, in the coinage clause, simply confers on Congress one of the usual functions of a government, that of manufacturing metallic money and regulating the value of such money. As to what shall be done with it when it is manufactured and its value regulated, the Constitution says nothing. I cannot doubt that the