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Powers Denied to the States

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Section 10. Clause 1. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Treaties, Alliances, or Confederations

At the time of the Civil War, this clause was one of the provisions upon which the Court relied in holding that the Confederation formed by the seceding States could not be recognized as having any legal existence.1894 Today, its practical significance lies in the limitations which it implies upon the power of the States to deal with matters having a bearing upon international relations. In the early case of Holmes v. Jennison,1895 Chief Justice Taney invoked it as a reason for holding that a State had no power to deliver up a fugitive from justice to a foreign State. More recently, the kindred idea that the responsibility for the conduct of foreign relations rests exclusively with the Federal Government prompted the Court to hold that, since the oil under the three mile marginal belt along the California coast might well become the subject of international dispute and since the ocean, including this three mile belt, is of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world, the Federal Government has paramount rights in and power over that belt, including full dominion over the resources of the soil under the water area.1896 In Skiriotes v. Florida,1897 the Court, on the other hand, ruled that this clause did not disable Florida from regulating the manner in which its own citizens may engage in sponge fishing outside its territorial waters. Speaking for a unanimous Court, Chief Justice Hughes declared; “When its action does not conflict with federal legislation, the sovereign authority of the State over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances.”1898

Bills of Credit

Within the sense of the Constitution, bills of credit signify a paper medium of exchange, intended to circulate between individuals, and between the Government and individuals, for the ordinary purposes of society. It is immaterial whether the quality of legal tender is imparted to such paper. Interest bearing certificates, in denominations not exceeding ten dollars, which were issued by loan offices established by the State of Missouri and made receivable in payment of taxes or other moneys due to the State, and in payment of the fees and salaries of state officers, were held to be bills of credit whose issuance was banned by this section.1899 The States are not forbidden, however, to issue coupons receivable for taxes,1900 nor to execute instruments binding themselves to pay money at a future day for services rendered or money borrowed.1901 Bills issued by state banks are not bills of credit;1902 it is immaterial that the State is the sole stockholder of the bank,1903 that the officers of the bank were elected by the state legislature,1904 or that the capital of the bank was raised by the sale of state bonds.1905

1894 Williams v. Bruffy, 96 U.S. 176, 183 (1878).

1895 39 U.S. (14 Pet.) 540 (1840).

1896 United States v. California, 332 U.S. 19 (1947).

1897 313 U.S. 69 (1941).

1898 313 U.S. at 78–79.

1899 Craig v. Missouri, 29 U.S. (4 Pet.) 410, 425 (1830); Byrne v. Missouri, 33 U.S. (8 Pet.) 40 (1834).

1900 Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 269 (1885); Chaffin v. Taylor, 116 U.S. 567 (1886).

1901 Houston & Texas Cent. R.R. v. Texas, 177 U.S. 66 (1900).

1902 Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257 (1837).

1903 Darrington v. Bank of Alabama, 54 U.S. (13 How.) 12, 15 (1851); Curran v. Arkansas, 56 U.S. (15 How.) 304, 317 (1854).

1904 Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257 (1837).

1905 Woodruff v. Trapnall, 51 U.S. (10 How.) 190, 205 (1851).

Legal Tender

Relying on this clause, which applies only to the States and not to the Federal Government,1906 the Supreme Court has held that where the marshal of a state court received state bank notes in payment and discharge of an execution, the creditor was entitled to demand payment in gold or silver.1907 Since, however, there is nothing in the Constitution prohibiting a bank depositor from consenting when he draws a check that payment may be made by draft, a state law providing that checks drawn on local banks should, at the option of the bank, be payable in exchange drafts was held valid.1908

Bills of Attainder

Statutes passed after the Civil War with the intent and result of excluding persons who had aided the Confederacy from following certain callings, by the device of requiring them to take an oath that they had never given such aid, were held invalid as being bills of attainder, as well as ex post facto laws.1909

1906 Juilliard v. Greenman, 110 U.S. 421, 446 (1884).

1907 Gwin v. Breedlove, 43 U.S. (2 How.) 29, 38 (1844). See also Griffin v. Thompson, 43 U.S. (2 How.) 244 (1844).

1908 Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 659 (1923).

1909 Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867); Klinger v. Missouri, 80 U.S. (13 Wall.) 257 (1872); Pierce v. Carskadon, 83 U.S. (16 Wall.) 234, 239 (1873).

Other attempts to raise bill-of-attainder claims have been unsuccessful. A Court majority denied that a municipal ordinance that required all employees to execute oaths that they had never been affiliated with Communist or similar organizations, violated the clause, on the grounds that the ordinance merely provided standards of qualifications and eligibility for employment.1910 A

law that prohibited any person convicted of a felony and not subsequently pardoned from holding office in a waterfront union was not a bill of attainder because the “distinguishing feature of a bill of attainder is the substitution of a legislative for a judicial determination of guilt” and the prohibition “embodies no further implications of appellant’s guilt than are contained in his 1920 judicial conviction.”1911

1910 Garner v. Board of Pub. Works, 341 U.S. 716, 722–723 (1951). Cf. Konigsberg v. State Bar of California, 366 U.S. 36, 47 n.9 (1961).

1911 De Veau v. Braisted, 363 U.S. 144, 160 (1960). Presumably, United States v. Brown, 381 U.S. 437 (1965), does not qualify this decision.

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Last modified: October 23, 2012