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The Originalist Constitutional Argument for State-Level Bitcoin Legal Tender

The history of legal tender laws in America, the debates over state legal tender at the Constitutional Convention and Ratification Conventions, and the Founders’ views support an interpretation of Article I, Section 10 that encompass digital gold — Bitcoin.

This is the second post in a four-part article exploring the constitutionality of state-level Bitcoin legal tender laws — and the philosophical arguments against such laws.

This post was originally published on April 6, 2022.

The Originalist Case for State-Level Bitcoin Legal Tender

No State shall . . . coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any. . . law impairing the Obligation of Contracts."

- U.S. Const. art. I, § 10.

What Is Originalism?

Originalism is the dominant doctrine of Constitutional interpretation today, applied by a majority of the Supreme Court justices, and adhered to by most federal appellate judges. Any argument advocating the constitutionality of state Bitcoin legal tender laws under Article I, Section 10 must, therefore, account for the originalist view.

Originalism is "the canon that a legal text should be interpreted through the historical ascertainment of the meaning that it would have conveyed to a fully informed observer at the time when the text first took effect."1 It seeks to arrive at the meaning of the words as of the time of the Founding, rather than the meaning those words have today.  In this pursuit, the Founders' own writings, demonstrating their usage of terms, are crucial primary sources. Original meaning also can be inferred from the background legal events and public debate that produced a constitutional provision.

But that's not to say originalism is a rigid doctrine that prevents application of the Constitution to modern-day society.  "Drafters of every era know that technological advances will proceed apace and that the rules they create will one day apply to all sorts of circumstances that they could not possibly envision:  A 19th-century statute criminalizing the theft of goods is not ambiguous in its application to the theft of microwave ovens.”2

An originalist analysis can thus take the form of analogizing to technologies that existed at the time of the Constitution's framing and adoption.  For example, the Supreme Court has invoked the image of a tiny constable concealing himself in a coach's luggage when holding that concealing a GPS transponder in a defendant's car is an unlawful search under the 4th amendment.3

The Framers' understanding of legal tender laws was informed by a combination of their lived experiences during both the Revolution and early nationhood under the Constitution's precursor, the Articles of Confederacy, as well as their knowledge of recent colonial history.  This background will provide a base layer of context for interpreting Article I, Section 10.

Necessity is the mother of invention. And the colonies needed money.  Specie, meaning gold and silver coins, was scarce.

The colonies thus resorted to money substitutes, such as commodities:

One of the earliest money substitutes consisted of certain products of colonial agriculture and industry, such as tobacco (Maryland, Virginia), rice (South Carolina), wheat, beef, pork (Northern colonies) and beaver skins (New York, Connecticut).4

In the north, along with collectible monies such as wampum (shell beads), commodities like fish and corn also served as money for trade with Native Americans.5

Commodity money was often quite sophisticated.  For example, in Virginia, “warehouse receipts in tobacco circulat[ed] as money backed 100 percent by the tobacco in the warehouse."6 Such receipts were actually closer to bearer notes, giving the holder the right to receive from a tobacco inspector the stated quantity of premium-grade tobacco.7

The market's invention was eventually adopted into law.  Massachusetts officially declared corn legal tender in 1631, and other colonies followed suit by recognizing tobacco, and even bullets as legal tender.8

But commodity money, or paper money backed by commodities, did not allow for quick expansion of the money supply. And so it was, that Massachusetts introduced the western world to paper fiat money. "Apart from medieval China, which invented both paper and printing centuries before the West, the world had never seen government paper money until the colonial government of Massachusetts emitted a fiat paper issue in 1690."9

The impetus for Massachusetts’s historic emission of paper fiat was (as is ever the case) war.  Massachusetts was at war in Canada and needed to finance soldier salaries, supplies, and arms.10  The results were, predictably, disastrous.  “[W]ithin a year after the initial issue, the new paper pound had depreciated on the market by 40 percent against specie."11

In 1692, Massachusetts declared its paper money official legal tender.12 In so doing, it invoked Gresham's Law13:

This legal tender law had the unwanted effect of Gresham’s Law: the disappearance of specie circulation in the colony. In addition, the expanding paper issues drove up prices and hampered exports from the colony. In this way, the specie “shortage” became the creature rather than the cause of the fiat paper issues.14

Over the following decades, other colonies emulated Massachusetts by issuing their own paper fiat legal tender:

Similar consequences—dramatic inflation, shortage of specie, massive depreciation despite compulsory par laws—ensued in each colony. Thus, along with Massachusetts’ depreciation of 11-to-1 of its notes against specie compared to the original par, Connecticut’s notes had sunk to 9-to-1 and the Carolinas’ at 10-to-1 in 1740, and the paper of virulently inflationist Rhode Island to 23-to-1 against specie. Even the least-inflated paper, that of Pennsylvania, had suffered an appreciation of specie to 80 percent over par.15

In what was to become a recurring theme, Rhode Island was the worst offender:

Notes issued by Rhode Island in 1740, later called "old tenor" lost so much in value that in 1771 £8 "old tenor" were accepted by the state Treasury in payment of taxes for 6 shillings "lawful money," a depreciation of almost 96%.16

By most measures, the colonial experiment with paper fiat money was unsuccessful.17

In 1751, the British Parliament sought to stanch the bleeding by "prohibit[ing] the colonies from issuing any further Paper Bills or Bills of Credit, of any Kind or Denomination whatsoever," and that “no paper money in New England should be legal tender."18

In 1764, Parliament "extended the ban on issuance of legal tender paper currency from New England to all American colonies," bringing an end to the colonial fiat era.19

Revolution War Finance

But the Parliament-imposed prohibition on paper money, would, of course, be short lived. The uniquely American tradition of fiat money was soon to continue.

Before independence had even been declared, the Continental Congress issued paper fiat to raise and fund its army.  “Congress launched its first paper issue of $2 million in late June 1775, and before the notes were printed it had already concluded that another $1 million was needed."20   All told, between 1775 and 1779, the Continental Congress issued "over $225 million ... superimposed upon a pre-existing money supply of $12 million."21

Depreciation rapidly followed:

Thus, at the end of 1776, the Continentals were worth $1 to $1.25 in specie; by the fall of the following year, its value had fallen to 3-to-1; by December 1778 the value was 6.8-to-1; and by December 1779, to the negligible 42-to-1. By the spring of 1781, the Continentals were virtually worthless, exchanging on the market at 168 paper dollars to one dollar in specie. This collapse of the Continental currency gave rise to the phrase, “not worth a Continental.”22

The states, not to be outdone, resumed issuing their own paper fiat, adding “a total of 210 million depreciated dollars to the nation’s currency” by war's end.23

Congress's preferred tools for fighting inflation were price controls and legal tender laws.  "In 1776, Congress asked the states to make congressional bills legal tender, that is, to force people to take them at face value. Most states complied.”24

And "Congress passed a toughly worded resolution declaring that any person who refused to receive bills of credit issued by Congress would be considered an enemy, precluded from all trade, and shunned by the community."25

"Finally in March 1780, with continentals good for about two and one-half cents on the dollar, Congress gave up the pretence that notes were on par with coin."26 It stopped issuing paper altogether, and essentially announced a default.

The Confederation Era

The Republic’s first governing document was known as the Articles of Confederation, and was effective from March 1, 1781 to June 21, 1788.27  The Articles—unlike the subsequent Constitution—expressly empowered the Confederation Congress to emit paper money, but it declined to do so.

Ten of the states, however, did issue paper fiat.28

Rhode Island, once again, was a notorious abuser of this power, imposing draconian compulsory tender laws that nearly sparked a constitutional crisis within its borders. As the monetary legal historian Arthur Nussbaum reported:

Despite the bad state of public finances the Rhode Island Assembly carried in 1786 a law providing for large loans of paper money to real estate owners. When the money was widely repudiated the Assembly resolved that repudiators should not only be subject to heavy fines, but be unfit for any office of honor or trust. As this measure proved ineffective, the Assembly instituted, as did Hitler a century and a half later, an emergency tribunal for the speedy punishment, without jury or appeal, of violators of the monetary law. However, when a butcher named Weeden was brought into court for having refused to sell meat to a certain Trevett for the new bills, the court unanimously held the law unconstitutional. The Assembly thereupon constituted itself into a tribunal taking the judges to account because of their disobedience toward legislation duly enacted by the Assembly. The procedure was not carried through but four of the judges, it seems, were not reelected. The case Trevett v. Weeden is in American monetary history the first instance of a clash, on the basis of principle, between the legislative and the judicial branches of the government. The reprehensible laws were soon repealed and the new bills were called in fifteen to one.29

Rhode Island’s harsh law was an example of a compulsory legal tender law, which directly penalized merchants for refusing a specific tender in exchange for goods.

The Founders’ Tripartite Intent in Prohibiting State Tender Laws

The forgoing history of early-American legal tender laws—much of which the Founders experienced firsthand—adds background context to Article I, Section 10.  This section will build upon that background with an examination of the Founders’ writings and debates on legal tender.

These primary sources reveal that the Founders generally harbored a deep-seated hatred for paper money legal tender.  Article I, Section 10's prohibition on state legal tender was primarily designed to avoid inflationary monetary policy like that practiced by the colonies, Continental Congress, and later the states under the Articles of Confederation.

But the Founders also sought to limit state power over currency to avoid costly interstate trade wars and to allow the federal government a free hand in foreign relations.

We will explore the evidence for each of these three purposes in turn.

1. Avoiding Inflationary Monetary Policy

The Founders were not a monolith, and discerning their original intent with respect to many provisions of the Constitution can be fraught.

But their shared hatred for fiat money is undeniable.

“The colonists had long recognized that depreciating currency enriched some social groups at the expense of others.”30  Among those thought to be on the losing side of inflationary paper monetary policies were "widows, orphans, clergy, and "[s]alary [m]en."31  The winners were, of course, known to be the "debtors," whose obligations were depreciated by inflation.32

James Madison's notes from the Constitutional Convention detail the overall disgust held for paper money.33  For example, during opening remarks, Edmund Randolph, "speaking of the defects of the [C]onfederation,” stated that “the havoc of paper money had not been foreseen” by the authors of the Articles of Confederation.34

Madison’s notes on Article I, Section 10 reveal that Roger Sherman, as part of the committee drafting what would become that section, inserted “nor emit bills of credit, nor make any thing but gold & silver coin a tender,” because he “thought [the Convention was] a favorable crisis for crushing paper money."35 The language had originally prohibited states only from coining money.36

Likewise, the record of the ratification process, conducted by state conventions, "includes many general comments that the Constitution would put an end to paper money."37  The state legal tender paper laws "were cited as justification of the ban at ratification conventions, and 'were attacked both as immoral efforts to redistribute wealth from some constituencies to others and as a source of bad international and interstate relationships.'"38

And a number of references to Article I, Section 10’s prohibitory clause are found in the Federalist Papers, which describe the section as removing from the states the power to issue “paper medium,”39 or “paper money.”40 In Federalist No. 44, Madison explained the need to prohibit the states from issuing paper money:

The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the States chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it.41

In a later letter discussing Federalist No. 44, Madison confirmed “[t]he evil which produced the prohibitory clause in the Constitution of the United States was the practice of the States in making bills of credit, and in some instances appraised property, ‘a legal tender.’”42

Another after-the-fact exchange between two additional Founders demonstrates a continuing opposition to paper fiat. Writing to Thomas Jefferson in 1819, John Adams commented:

[Debasing the coinage] is to steal. A theft of greater magnitude and still more ruinous is the making of paper. It is greater because in this money there is absolutely no real value. It is more ruinous because by its gradual depreciation during all the time of its existence it produces the effect which would be produced by an infinity of successive deteriorations of the coin.43

Jefferson responded (perhaps self-servingly):

The paper bubble is then burst. This is what you and I, and every reasoning man, seduced by no obliquity of mind or interest, have long foreseen. Yet it's [sic] disastrous effects are not the less for having been foreseen.44

Although the Founders clearly hated paper money, they "were unsure about placing a total ban on Congress's power to issue paper money."45  Many thought by failing to expressly grant the power, the federal government (possessed of only those powers granted to it by the people and states) would not be able to issue paper fiat and declare it legal tender.46 It is clear, however, that "they were certain about denying states even a conditional power of issuance.”47

On the other hand, at the time of the Founding, gold and silver “constituted the preferred money of the world primarily because supply was limited.”48 That “natural scarcity … was a virtue to be preserved in both law and economics.”49

For that reason, and "at the urging of Alexander Hamilton, [the Founders] adopted a bimetallic standard."50 Gold, of course, was known to be superior to silver due to its greater scarcity.  But, "[s]ilver, the ancient money of the American colonies, had its status deeply entrenched in the consciousness of the people and realities of the market," and was thus allowed as parallel legal tender.51

The historical record of the Founders’ writings and debates, therefore, establishes that the chief concern animating the decision to limit state legal tender to gold and silver was the history of abusive paper money issuance and compulsory tender laws forcing its acceptance.

2. Preventing Trade Wars Amongst the States

Another discernible purpose for limiting states to gold and silver legal tender was to avoid interstate trade wars.  This was not a theoretical threat.  Trade wars were part of the colonial/state paper money system prior to the Constitution.

Rhode Island, once again, was a particularly pugnacious participant:

Before Massachusetts went back to specie, it was committed to accept the notes of the other New England colonies at par. This provided an incentive for Rhode Island to inflate its currency wildly, for this small colony, with considerable purchases to make in Massachusetts, could make these purchases in inflated money at par. Thereby Rhode Island could export its inflation to the larger colony, but make its purchases with the new money before Massachusetts prices could rise in response. In short, Rhode Island could expropriate wealth from Massachusetts and impose the main cost of its inflation on the latter colony.52

During the Confederation era, Rhode Island also started currency wars with Connecticut:

To ensure that creditors accepted this [depreciated paper fiat] currency, the [Rhode Island] legislature passed a law declaring that anyone who refused to do so could be fined without benefit of trial by jury. Debtors from other states owing money to Rhode Island creditors decided they could play the same game. When sued in Rhode Island courts, out-of-state debtors tendered Rhode Island paper money. The outraged Rhode Island legislature responded by ordering state judges to refuse to recognize any such tender from a debtor who was not a Rhode Island resident. Connecticut lawmakers thereupon provided that Rhode Islanders could not collect debts in Connecticut until its neighbor repealed the discriminatory statutes against nonresidents.53

These tit-for-tat trade and currency wars prevented the young Republic's cohesion and accordingly provided "fodder for the ratification debates."54  The Ratifiers thus believed that "removing the power of issuing paper money from the state governments, particularly from Rhode Island's government, would remove a source of discord and incipient trade wars between the various states."55

Madison is again instructive. He expressly identified trade wars as a reason for removing the power of declaring legal tender from the states:

Had every State a right to regulate the value of its coin, there might be as many different currencies as States, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other States be injured, and animosities be kindled among the States themselves.56

3. Preserving the Federal Government’s Uniform Power over Foreign Affairs

Lastly, the Founders thought that the states ability to declare legal tender could infringe on the federal government's uniform power over foreign affairs and money.57

Madison, again:

The subjects of foreign powers might suffer from the same cause [of depreciated paper money], and hence the Union be discredited and embroiled by the indiscretion of a single member.58


It must be seen at once that the proposed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States.59

Another proponent of the Constitution, writing under the pseudonym “Civis,” wrote:

[T]he states cannot emit money; this is not intended to prevent the emission of paper money, but only of state paper money. Is not this an advantage? To have thirteen paper currencies in thirteen states is embarrassing to commerce, and eminently so to travellers.60

“Digital Gold” Does Not Produce Inflation, Stoke Interstate Trade Wars, or Infringe on the Federal Power over Foreign Affairs

Gold Was the Best Monetary Solution for the Problems Caused By State Tender Laws

The Founders permitted states to declare gold and silver tender because these metals were largely immune to government interference, which had produced inflation, stoked trade wars, and infringed on the federal government’s foreign affairs powers. This immunity stemmed from scarcity. As Alexander Hamilton noted, gold’s “preeminence” as money was owed to its “greater rarity.”61

Not only is gold scarce within the earth, but it’s also very costly to produce (mine, refine, smelt, coin), and difficult to forge or fake. These additional properties ensure that gold’s scarcity remains intact despite new gold being brought to market. At the time of the Founding, gold had the lowest rate of inflation of any monetary good, meaning it was the “hardest” money, because the existing stock was so much larger than the flow of new gold into the market.62

These combined properties (scarcity, high cost to produce, and difficulty to fake) have been described as “unforgeable costliness.”63 Because gold was not only “hard money,” but also unforgeably costly, state adoption of gold as legal tender would not lead to inflation within the Republic. States could not quickly issue more gold coins to fund their governments. Likewise, adoption of gold would not lead to interstate currency wars like those between Rhode Island and Connecticut and Massachusetts, because there would be no inflationary currency to export. And because gold was a universal and international medium of exchange, other nations would not be forced to deal with thirteen different (depreciating) currencies.

Gold, therefore, was the best monetary technology in existence at the Founding for solving the problems identified by the Founders with state legal tender laws. Accordingly, the states retained their power to adopt this hard, unforgeably costly money as tender.

The Evolution of Money — Bitcoin Succeeds Gold

As Professor Ali Khan so presciently observed nearly 23 years ago, although “the monetary clauses of the Constitution … incorporated a universal truth at the time of their adoption,” they nonetheless “failed to halt the evolution of money.”64 With credit cards having mostly replaced cash, and as the Federal Reserve and Congress exploring issuing a “Central Bank Digital Currency,” Professor' Kahn’s prediction that “the dollar will eventually become an abstract unit of currency with no specific embodiment in metal or paper” has proved correct.65

But non-state, monetary goods like gold have evolved too.

Introducing his early electronic gold protocol, Nick Szabo explained:

Precious metals and collectibles have an unforgeable scarcity due to the costliness of their creation. This once provided money the value of which was largely independent of any trusted third party. Precious metals have problems, however. It's too costly to assay metals repeatedly for common transactions. Thus a trusted third party (usually associated with a tax collector who accepted the coins as payment) was invoked to stamp a standard amount of the metal into a coin. Transporting large values of metal can be a rather insecure affair, as the British found when transporting gold across a U-boat infested Atlantic to Canada during World War I to support their gold standard. What's worse, you can't pay online with metal.

Thus, it would be very nice if there were a protocol whereby unforgeably costly bits could be created online with minimal dependence on trusted third parties, and then securely stored, transferred, and assayed with similar minimal trust. Bit gold.66

Szabo’s “Bit gold” was a forerunner to what many today consider to be “digital gold.”

As a thought experiment, imagine there was a base metal as scarce as gold but with the following properties:

- boring grey in colour

- not a good conductor of electricity

- not particularly strong, but not ductile or easily malleable either

- not useful for any practical or ornamental purpose

and one special, magical property:

- can be transported over a communications channel.67

This is how Bitcoin’s pseudonymous creator, Satoshi Nakamoto, described Bitcoin.

While a comprehensive discussion of Bitcoin’s operation is beyond the scope of this article, suffice it to say, “Bitcoin is a peer to peer electronic cash, a new form of digital money that: [1] can be transferred between people or computers without any trusted middleman (such as a bank), and [2] whose issuance is not under the control of any single party.”68

In other words, Bitcoin—like gold—is a bearer asset that is not issued by the state, a bank, or a corporation.

And as a truly decentralized network, Bitcoin’s issuance rate, or monetary policy is practically immutable, thus eliminating the risk of inflation.  Unlike fiat currencies such as those issued by the colonies, Continental Congress, or states, which were issued on a variable schedule at the whim of politicians or bureaucrats, often with very little notice, Bitcoin’s code sets the issuance rate of new bitcoins and caps the overall supply at 21 million.69  “There is no central authority that determines the evolution of the Bitcoin software and no single programmer is able to dictate any outcome.”70 Thus, because no central authority can produce more bitcoins at will, Bitcoin is immune to the inflationary debasement to which fiat currencies are prone.

But Bitcoin is not just as good as gold, it’s better:

Beyond digital scarcity, Bitcoin is also the first example of absolute scarcity, the only liquid commodity (digital or physical) with a set fixed quantity that cannot conceivably be increased.71

About every ten minutes a new block is added to Bitcoin’s blockchain, yielding a reward, or issuance, of 6.25 new bitcoins, currently. That issuance is measured against the 19 million bitcoins already in existence.72 This makes Bitcoin’s growth rate very low — on par with gold’s.73  By next year, Bitcoin’s growth rate will decline past gold’s, making Bitcoin the hardest asset the world has ever seen.74

Bitcoin Comports with the Founders’ Understanding of Hard Money

Like gold before it, Bitcoin solves the problems identified by the Founders with state legal tender laws:

  1. It is immune to inflationary monetary policies,
  2. With its low, consistent, and predictable growth rate, Bitcoin will not stoke interstate trade wars, and
  3. It is a universal, international medium of exchange, meaning that foreign citizens or governments would not be required to juggle 50 different state tenders.

The Founders understood gold as the best form of money in existence. Bitcoin has incorporated those properties that made gold the “preeminen[t]” money at the Founding (scarcity and unforgeable costliness), and elevated them through the use of modern communications and computing technology.

It wasn’t because gold was an inert shiny rock that states were allowed to adopt it as tender. It’s monetary properties mattered, not the form that it took. Article I, Section 10’s reference to “gold and silver coin” therefore, was a reference to so-called commodity money, not mere elements on a periodic table.

As George Selgin explains, “commodity’ money consists, as the term suggests, of some useful article of trade, that is, something that has a use other than that of being a medium of exchange, and that is also naturally scarce, in that it commands a positive value in equilibrium, which (assuming competing suppliers) is equal to its marginal cost of production.”75 Commodity money is contrasted against fiat money, i.e., “paper notes, or central bank deposits readily convertible into such notes, which are useful only as exchange media, and which command a value in equilibrium far exceeding their zero or near-zero marginal cost of production.”76

If gold was commodity money, then, as Selgin suggests, “Bitcoin raises the intriguing possibility that one might create a synthetic commodity money based upon a production ‘protocol’ such as might replicate the outcome of almost any conceivable monetary rule.”77 Bitcoin’s protocol, as previously discussed, as enshrined a “hard money” monetary rule akin to gold.

This transition from commodity money to synthetic commodity money is an example of a new technological development that would be encompassed within the original meaning of Article I, Section 10.

Justice Gorsuch explains this originalist analytic with a series of examples from other Constitutional provisions:

Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies. Consider a few examples. As originally understood, the term “cruel” in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. That never changes. But that meaning doesn’t just encompass those particular forms of torture known at the founding. It also applies to deliberate efforts to inflict a slow and painful death by laser. Take another example. As originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet. Or consider the Fourth Amendment. As originally understood, it usually required the government to get a warrant to search a home. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside. Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.78

While at first blush Article I, Section 10’s reference to “gold and silver coin” appears narrow in meaning, it was originally understood to refer to the hardest forms of commodity money—that is, not paper fiat money—then in existence. But “new applications of that meaning” have arisen “with new developments and new technologies,” namely, synthetic commodity money.79 The hardest form of which is Bitcoin.

With an understanding of the history of legal tender laws in America, the debates over state legal tender at the Constitutional Convention and Ratification Conventions, and the Founders’ views on the subject, Article I, Section 10’s allowance for “gold and silver coin” as state tender can be said to fairly encompass digital gold—Bitcoin.

Part III will release next week (providing the strict textualist counter-argument). If you’d like continue this journey through American history, constitutional law, economics and philosophy, subscribe to the newsletter to receive each part in your inbox as it’s released.

Until next week,



ORIGINALISM, Black's Law Dictionary (11th ed. 2019).


Antonin Scalia & Bryan A. Garner, Reading Law:  The Interpretation of Legal Texts, 86 (2012) (internal quotation marks omitted).


See United States v. Jones, 565 U.S. 400, 406 n.3 & 420 (2012).


Arthur Nussbaum, Money in the Law National and International: A Comparative Study in the Borderline of Law and Economics, 554-55 (1950).


Murray Rothbard, A History of Money and Banking in the United States: The Colonial Era to World War II, 48 (2002).


Rothbard at 48.


Nussbaum at 562-63 (Nussbaum states such bearer tobacco notes could be found in circulation in Maryland, as well).


Arthur Nussbaum, Monetary Conceptions in Law, 35 Mich. L. Rev. 865, 899 (1937).


Rothbard at 51. See also Nussbaum, Money in the Law, at 558 ("Massachusetts has probably the merit or demerit of having given birth several decades before John Law, to the first paper money in western civilization, and to government paper money at that.”).


Nussbaum, Money in the Law, at 559.


Rothbard at 52.


Nussbaum, Money in the Law, at 559.


“Gresham’s Law … states that when government compulsorily overvalues one money and undervalues another, the undervalued money will leave the country or disappear into hoards, while the overvalued money will flood into circulation.” Rothbard at 47.


See Rothbard at 51-56.


Rothbard at 54.


Nussbaum, Money in the Law, at 561.


See Rothbard at 51-56 (“Thus, in 1690, before the orgy of paper issues began, £200,000 of silver money was available in New England; by 1711, however, with Connecticut and Rhode Island having followed suit in paper money issue, £240,000 of paper money had been issued in New England but the silver had almost disappeared from circulation.").

See also Robert Natelson, Paper Money and the Original Understanding of the Coinage Clause, 31 Harv. J.L. & Pub. Pol’y 1017, 1039 (2008) ("Over a fifteen year period, from 1744 to 1759, Rhode Island notes lost more than eighty percent of their value. Over a much wider stretch of time, from 1720 until 1765--the year after Parliament's Currency Act became effective--Massachusetts currency inflated against sterling more than fourfold (all before 1750), and Rhode Island currency more than twelvefold.").


Natelson at 1042.


Natelson at 1043.


Rothbard at 59-60.








Natelson 1049. See also Rothbard at 59-60 (“In an attempt to stem the inflation and depreciation, various states levied maximum price controls and compulsory par laws.”).


Ali Kahn, The Evolution of Money: A Story of Constitutional Nullification, 67 U. Cin. L. Rev. 393, 399 (1999).


Natelson at 1049.


Natelson at 1050.


Natelson at 1050.


Nussbaum, Money in the Law, at 561-62.


Natelson 1070 n. 305.






Natelson at 1053-55.


1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 18 (Max Farrand ed., 1937), https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=001/llfr001.db&recNum=45&itemLink=D?hlaw:3:./temp/~ammem_bda8::%230010046&linkText=1.


2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 439 (Max Farrand ed., 1937), https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=444&itemLink=D?hlaw:10:./temp/~ammem_5L2o::%230020445&linkText=1




Natelson at 1067.


Natelson at 1069-71.


The Federalist No. 44 (James Madison) ("the same reasons which shew the necessity of denying to the states the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin”).


The Federalist No. 80 (Alexander Hamilton) ("The States, by the plan of the convention, are prohibited from doing a variety of things … The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind.")


The Federalist No. 44 (James Madison).


Letter from James Madison to C. J. Ingersoll (Feb. 2, 1831), in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 495 (Max Farrand ed., 1937), https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=003/llfr003.db&recNum=498&itemLink=r?ammem/hlaw:@field(DOCID+@lit(fr003399)):%230030500&linkText=1.


Natelson at 1078 (quoting Letter from John Adams to Thomas Jefferson (Feb. 24, 1819), in 2 THE ADAMS-JEFFERSON LETTERS: THE COMPLETE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND ABIGAIL AND JOHN ADAMS 535 (Lester J. Cappon ed., 1959).




Kahn at 406.


Natelson at 1055-56.


Kahn at 406.


Kahn, 402.


Kahn at 402.


Kahn at 404.




Rothbard at 55 n.7.


Natelson at 1051.


Natelson at 1051.


Natelson at 1075-76. See also Natelson at 1070-71.


Federalist No. 44 (James Madison).


Natelson at 1075 ("the Articles of Confederation had granted Congress exclusive authority over foreign relations, but state issues of paper money had impeded Congress's exercise of that authority").


Federalist No. 44 (James Madison).


Federalist No. 42 (James Madison).


Natelson at 1074.


Alexander Hamilton, Report on the Establishment of a Mint (1791), https://founders.archives.gov/documents/Hamilton/01-07-02-0334-0004.


See Saifedean Ammous, The Bitcoin Standard 22–23 (2018).


Nick Szabo, "Bit gold" Dec. 29, 2005, http://unenumerated.blogspot.com/2005/12/bit-gold.html. See also Nick Szabo, “Shelling Out: The Origins of Money” (2002), https://nakamotoinstitute.org/shelling-out/.


Kahn at 397.


Kahn at 442.


Nick Szabo, "Bit gold" Dec. 29, 2005, http://unenumerated.blogspot.com/2005/12/bit-gold.html.




Yan Pritzker, Inventing Bitcoin:  The Technology Behind the First Truly Scarce and Decentralized Money Explained 1 (2019).


Pritzker at 8.


Ammous at 223.


Ammous at 177.


You can check Bitcoin’s real-time statistics at https://bitbo.io/.


Ammous at 5, 22–23.


Ammous at 199.


George Selgin, Synthetic Commodity Money 2 (2013).




Id. at 23.


Neil Gorsuch, Why Originalism Is the Best Approach to the Constitution, Time (Sept. 6, 2019) https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/.