Saturday, February 12, 2011

The Palmetto Dollar?: South Carolina Considering its own Currency

Undaunted by the Constitution's explicit prohibition of the power to coin money to States, Article I section 10, South Carolina Senate Bill 500 seeks a joint legislative subcommittee to study whether the state should adopt its own currency.

The Senate Bill provides: South_Carolina_quarter,_reverse_side,_2000

Whereas, the Supreme Court of the United States has ruled that the police power of a state is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive; and
Whereas, the Supreme Court of the United States has ruled that the police powers of the states extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order; and
Whereas, the protection of the lives, health, and property of South Carolina's citizens, and the preservation of good order in the State, depend upon the maintenance of both an adequate system of governmental finance and a sound and robust private economy that cannot be maintained in the absence of a sound currency; and
Whereas, the present monetary and banking systems of the United States, centered around the Federal Reserve System, have come under ever-increasing strain during the last several years, and will be exposed to ever-increasing and predictably debilitating strain in the years to come; and
Whereas, many widely recognized experts predict the inevitable destruction of the Federal Reserve System's currency through hyperinflation in the foreseeable future; and
Whereas, in the event of hyperinflation, depression, or other economic calamity related to the breakdown of the Federal Reserve System, for which the State is not prepared, the state's governmental finances and private economy will be thrown into chaos, with gravely detrimental effects upon the lives, health, and property of South Carolina's citizens, and with consequences fatal to the preservation of good order throughout the State; and
Whereas, South Carolina can avoid or at least mitigate many of the economic, social, and political shocks to be expected to arise from hyperinflation, depression, or other economic calamity related to the breakdown of the Federal Reserve System only through the timely adoption of an alternative sound currency that the state's government and citizens may employ without delay in the event of the destruction of the Federal Reserve System's currency; and
Whereas, "legal tender" means a currency that must be accepted in payment of a debt denominated in United States dollars if the parties have not stipulated that some alternative currency is to be used as their medium of payment or are not otherwise required to use such alternative currency; and
Whereas, the Federal Reserve System's currency has been designated legal tender under Title 31, United States Code, Section 5103; and
Whereas, under Title 12, United States Code, Section 411 and Title 31, United States Code, Section 5118(b) and (c), the Federal Reserve System's currency is not redeemable in gold or silver coin or the equivalent in bullion; and
Whereas, the Federal Reserve System's currency not being redeemable in gold or silver coin or the equivalent in bullion is being identified by more and more experts as a major reason for the ever-increasing instability of the Federal Reserve System; and
Whereas, all gold and silver coins of the United States are designated "legal tender" under Title 31, United States Code, Sections 5103 and 5112(h), and must be designated by Article I, Section 8, Clause 5 and Article I, Section 10, Clause 1 of the Constitution of the United States; and
Whereas, pursuant to Article I, Section 10, Clause 1 of and the Tenth Amendment to the Constitution of the United States, each state must make gold and silver coin a Tender in Payment of Debts; and
Whereas, the Supreme Court of the United States has ruled that the states may adopt whatever currency they desire for the purposes of performing their sovereign governmental functions, even to the extent of adopting gold and silver coin for those purposes while refusing to employ a currency not redeemable in gold or silver coin that Congress has designated "legal tender"; and
Whereas, "the police power" being the primary sovereign governmental function of every state, every state may adopt its own currency, consisting of gold or silver, or both, whenever necessary and proper to facilitate exercises of that power in aid of the general welfare of the state and its citizens; and
Whereas, under Title 31, United States Code, Section 5118(d)(2), and Article I, Section 8, Clause 5 and Article I, Section 10, Clause 1 of, and the Ninth and Tenth Amendments to, the Constitution of the United States, Americans may employ whatever currency they choose to stipulate as the medium for payment of their private debts, including gold or silver, or both, to the exclusion of a currency not redeemable in gold or silver that Congress may have designated "legal tender"; and
Whereas, under Title 31, United States Code, Section 5118(d)(2), and Article I, Section 8, Clause 5 and Article I, Section 10, Clause 1 of, and the Ninth and Tenth Amendments to, the Constitution of the United States, the citizens of South Carolina may choose to employ as the medium for payment of their private debts whatever alternative currency, consisting of gold or silver, or both, that the State may adopt in the exercise of "the police power"; and
Whereas, various systems of alternative currency employing gold or silver, or both, in the form of coin or its equivalent in bullion have already proved themselves in the free market, and could either be employed by the State directly or be used as models for a new system created by the State to meet South Carolina's unique needs; and
Whereas, the adoption of an alternative currency consisting of gold or silver, or both, would not destabilize the present monetary and banking systems or the state's governmental finances private economy because it would not compel or commit the State or her citizens to employ such alternative currency to the exclusion of the Federal Reserve System's currency immediately, but would merely make the alternative currency available, and enable it to be used in competition with and preference to the Federal Reserve System's currency, to the degree that the need for such use became apparent; and
Whereas, the United States Congress, the U.S. Department of the Treasury, and the Federal Reserve System have taken and are preparing to take no action to provide the United States with an alternative to the Federal Reserve System's currency, in the likely event that the latter would be destroyed through hyperinflation. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION    1.    (A)    A joint subcommittee is hereby created to study whether this State should adopt a currency to serve as an alternative to the currency distributed by the Federal Reserve System in the event of a major breakdown of the Federal Reserve System.
(B)    The joint subcommittee shall consist of eight members appointed as follows: four members appointed by the Speaker of the House of Representatives and four members appointed by the President Pro Tempore of the Senate. The joint subcommittee shall elect a chairman and vice-chairman from among its membership.
(C)    In conducting its study the joint subcommittee shall consider recommendations for legislation, with respect to the need, means, and schedule for establishing such an alternative currency. Administrative staff support shall be provided by the Board of Economic Advisors.
(D)    No recommendation of the joint subcommittee shall be adopted if a majority of the House members or a majority of the Senate members appointed to the joint subcommittee vote against the recommendation and vote for the recommendation to fail notwithstanding the majority vote of the joint subcommittee. The joint subcommittee shall submit its report to the General Assembly by November 1, 2011.
SECTION    2.    This joint resolution takes effect upon approval by the Governor.

According to Stephen Largen reporting in the Spartenburg Herald Journal (, the Bill's sponsor, Senator Lee Bright, jokes that "If at first you don’t secede, try again," and has also sponsored legislation that would make a firearm, firearm accessory or ammunition that is commercially or privately manufactured in South Carolina and does not leave this state exempt from federal regulation and successful legislation on health insurance.


February 12, 2011 in Current Affairs, Federalism, Teaching Tips | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 9, 2011

Virginia AG Seeks Supreme Court Review of Health Care Reform

Virginia AG Kenneth Cuccinelli yesterday filed a Petition for a Writ of Certiorari Before Judgment in the Supreme Court, seeking review of Judge Hudon's (E.D. Va.) ruling in Virginia v. Sebelius in December, holding the individual health insurance mandate in the Patient Protection and Affordable Care Act unconstitutional.

AG Cuccinelli filed pursuant to Supreme Court Rule 11, which allows a petition for writ of cert. in extraordinary cases:

A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.

Here are AG Cuccinelli's questions presented:

1.  Whether the district court erred in holding that the Commonwealth has standing to challenge the minimum coverage provision (as stated by the Secretary).

2.  Whether the district court erred in holding that the minimum coverage provision is not a valid exercise of Congress's Article I powers (as stated by the Secretary).

3.  Whether the district court erred when it held that the unconstitutional mandate and penalty of the Patient Protection and Affordable Care Act of 2010 . . . is severable from all the remaining provisions of the law.

4.  Whether the district court erred when it denied injunctive relief.

The Justice Department has indicated that it opposes bypassing the appeals courts.  (Twenty-eight governors sent a letter to President Obama today asking him to support an expedited appeal to the Supreme Court.)


February 9, 2011 in Commerce Clause, Congressional Authority, Courts and Judging, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 8, 2011

Egypt's Constitution: More on Presidential Election

There is continuing discussion of the relevance of the Constitution of the Arab Republic of Egypt to the present situation on Egypt, with banners such as the one pictured left (via) which reads "leave" in Arabic. 


In our last post, we quoted Article 76, which governs the election of President and recommended an article by Kristen Stilt.  Check out the comments to the post.

Another helpful discussion is by Nathan Brown, who spoke on NPR this morning: It's four and a half minutes worth listening to here    Brown's post over at Carnegie Endowment for International Peace outlines the "three choices" if Egypt's President Muburak were to resign:


1.    Follow the constitution and wind up with the regime handpicking a successor after 60 days for a full presidential term. That hardly resolves anything. The procedures are written in such a way that Sulayman could be nominated, but it would break the promise both Mubarak and Sulayman made for constitutional reform. This procedure would not even put lipstick on the regime's current face.

2.    Follow the constitution with the promise that the new president (presumably Sulayman) pick up the constitutional reform process. That puts the crisis on hold for 60 days and offers the opposition promises for reform that might be redeemed later -- and might not be. This would put lipstick on, but not much else, particularly given the toxic lack of trust in the regime's promises.  

3. Suspend the constitution and negotiate a transition between the current regime leaders and the opposition. And then we are in regime change territory, operating outside the existing rules. If the process were successful, it would not produce merely a reconfigured regime but would be moving toward a different kind of political system. The opposition has made clear that it wants such an outcome, but it has not sketched out any vision in detail. The negotiations over transition would be difficult and confusing, demanding that the opposition transform its negative platform (Mubarak must leave) into a positive one.

Brown updates these choices with a fourth "ingenious" solution: deputizing the current Vice-President, Omar Sulayman to serve as President.   For others, such as Jane Mayer in the New Yorker, Omar [Sulayman] Suleiman's involvement as the head of Egypt's intelligence service and involvement with the US in extraordinary rendition casts doubt on his acceptability. 

Additionally, Clark Lombardi has been posting some thoughtful analysis over at Comparative Constitutions, including tackling the large question about the relevance of "a constitution" during regime change.  For an indepth and scholarly consideration, Tamir Moustafa's The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge University Press, 2007) comes highly recommended by ConLawProf Miguel Schor.


February 8, 2011 in Comparative Constitutionalism, Current Affairs, Foreign Affairs, Fundamental Rights | Permalink | Comments (1) | TrackBack (0)

Monday, February 7, 2011

Southern Sudan Independence

Official referendum results released today in Khartoum confirmed earlier predictions that Southern Sudanese voted overwhelmingly for secession--99 percent in favor, according to the official results.  Sudan's President Omar al-Bashir accepted the results in a ceremony also attended by Southern Sudan's President Salva Kiir.  Al Jazeera reports here.  The White House issued a statement that the United States would recognize Southern Sudan "as a sovereign, independent state in July 2011."

Southern Sudan has been operating under an interim constitution since 2005, the year of the comprehensive peace agreement.  President Kiir recently formed a constitutional review committee chaired by Minister of Legal Affairs and Constitutional Development John Luk Jok to review that constitution as the region moves toward full independence.


February 7, 2011 in Comparative Constitutionalism, News | Permalink | Comments (0) | TrackBack (0)

Campbell Law Review Symposium

The Campbell Law Review will host its 2011 symposium on May 18, 2011.  Here's the announcement:

The Campbell Law Review presents its annual 2011 symposium:

Liberalism, Constitutionalism, and Christianity: Perspectives on the Influence of Christianity on Classical Liberal Legal Thought

The conference will consider the relationship between liberalism and Christianity and their influence on American constitutionalism.  The conference will investigate the extent to which classical liberalism and Christianity influenced the formulation of the Constitution and the thought of the Founding era.  It will focus on the importance of the foundational Christian commitments to characteristic notions of religious toleration and freedom of association as they are borne out in the thought of the Founders and the founding era.

The conference will be hosted on May 18, 2011, at Campbell University School of Law, located in Raleigh, North Carolina.  The following presenters will be featured:

Professor Robert F. Cochran, Director of the Herbert and Elinor Nootbaar Institute of Law, Religion, and Ethics and the Louis D. Brandeis Professor of Law, Pepperdine University School of Law, Professor John M. Breen, Loyola University Chicago School of Law; Professor Bruce P. Frohnen, Ohio Northern University Pettit College of Law; Professor Michael Scaperlanda, University of Oklahoma College of Law; Professor Barry Shain, Colgate University; Professor John Inazu, Visiting Professor, Duke University School of Law; Professor Anthony Baker, Visiting Professor, John Marshall Law School; Professor C. Scott Pryor, Visiting Professor, Campbell University School of Law; Dean Donald R. McConnell, Trinity Law School.

All are invited.  Attendees may find more details and register here.


February 7, 2011 in Conferences, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, February 6, 2011

Superbowl Stadium: Constitutional Controversies

Some will be watching today's "Superbowl" in the Cowboys Stadium as a sports event, but for constitutional law fans, the 1.3 (or so) billion dollar Stadium is an example of the Fifth Amendment's Taking Clause in action.  First, there is the taking of private property for public use.  In the case of the Cowboys Stadium in Arlington, Texas, the state and local government used eminent domain powers in residential areas.  Second, there is public financing used to support a privately owned by "public use" project, reportedly 3.25 million for the Cowboys Stadium.  In 1999, Professor Dale Rubin named the process a "constitutional disgrace" in his law review article on public aid to professional sports teams.

More recent articles, many authored by students, explore the Takings Clause problems in building and maintaining a sports stadium.  Two excellent examples are Erin A. Stanton's, Home Team Advantage?: The Taking Of Private Property For Sports Stadiums, 9 N.Y. City L. Rev. 93 (2005), and Peter Asselin's Supporting The Home Team ... In More Ways Than One: An Analysis Of The Public Financing of Philadelphia's New Sports Stadia,  3 Rutgers J. L. & Urb. Pol'y 389 (2006).


[image: Cowboys Stadium via]


February 6, 2011 in Current Affairs, Fifth Amendment, Scholarship, Takings Clause | Permalink | Comments (0) | TrackBack (0)

Abstinence Sex Education Scholarship: West Virginia Weekend

Abstinence sexual education is again being debated.  

Bristol Palin's planned appearance at the University of Washington in St. Louis on February 7  "to speak on abstinence as part of Washington University’s student Sexual Responsibility Week" has been canceled because "of the growing controversy among undergraduates over the decision to pay for her talk with student-generated funds."  Moreover, Senator Orrin Hatch (R-UT) successfully added an amendment to the Patient Protection and Affordable Care Act (eventually signed into law by the president) that restored a $50 million annual federal outlay to states (through 2014) for abstinence sex education.  The provisions appear at sections 2953 et seq., entitled "Personal responsibility education." 

WV Weekend Logo John E. Taylor's lively and readable work, Family Values, Courts, and Culture War: The Case of Abstinence-Only Sex Education, 18 Wm. & Mary Bill Rts. J. 1053 (2010), seeks to chart a middle course between what he terms the "sexual right" and the "sexual left."  Taylor situates his analysis in the Establishment Clause, even as he rejects the formulation that the sex education debate is a clash between science and (religious) values.   His intriguing thought experiment involves dental education and requires readers to examine our own flossing habits!

In the article, Taylor, Associate Dean for Academic Affairs and Professor of Law at the West Virginia University College of Law, then turns to three further claims, noting that “the value-laden character of sex education generates interesting conclusions about the proper roles of the federal government, the courts, and the public schools in sex education policy.” Id. at 1095.  First, Taylor claims that the federal government “should not attempt to dictate how state and local governments approach sex education.” Id. at 1056.  Second, Taylor argues that “courts should be reluctant to use the Establishment Clause to settle sex education controversies."  Id.  Finally, Taylor draws a broader conclusion that “we should recognize some limits on the degree to which the public schools can be enlisted as soldiers in the culture wars.” Id.

In the end, Taylor

cast[s] doubt on whether the federal government or the courts have useful roles to play in resolving cultural struggles about sex education. . . . These government institutions should allow space for the value conflicts at stake in sex education to work themselves out in a decentralized fashion. The core of truth in constitutional critiques of abstinence only-until-marriage sex education is the recognition that it involves the use of the public schools to promote a highly contested set of cultural norms.  Legislators and school officials have duties to refrain from using the public schools as tools in the cultural struggle between red and blue family values. In practical terms, they should seek to forge policies that appeal to the “sexual middle” by stressing abstinence for school-age children while also providing basic information about contraception. These obligations have roots in constitutional values, but do not give rise to judicially enforceable constitutional rights.

Id. at 1095.

Despite Taylor's plea for the "sexual middle" to prevail, it seems likely that the value conflicts will continue and litigation will have a constitutional cast.


with J. Zak Ritchie


February 6, 2011 in Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Religion, Reproductive Rights, Scholarship, Sexuality | Permalink | Comments (2) | TrackBack (0)