74 Colorado College Studies. 



tically the power must be either the Nation or the State. 

 Here rises the other form of the argument: that the pro- 

 hibitory tax goes beyond the constitutional powers of Con- 

 gress. Such a claim can be maintained only as a protest 

 against the decision of the Supreme Court, like the still 

 existing dissent from the Legal Tender decision. There 

 is no room for the claim of "moral" unconstitutionality, 

 such as there might have been if the Court had merely 

 sustained the law in its formal aspect of laying a tax, for 

 the decision was not reached by ignoring the prohibitory 

 nature of the tax, but by affirming the power to prohibit. 

 The words are: "Congress may restrain by suitable enact- 

 ments the circulation as money of any notes not issued 

 under its own authority." Ought Congress to retreat be- 

 fore constitutional scruples which have (to state the case 

 mildly) nothing near unanimity of legal opinion to sup- 

 port them and have already been overruled by the Supreme 

 Court, scruples which at best affect merely the question 

 whether Congress or the State legislatures shall use a power 

 that one or the other must use; when the abandonment of 

 the field by Congress would expose the country to the in- 

 evitable evils of disjointed management of note-circulation 

 by the separate States? If any one holds that decision of 

 the Supreme Court to be erroneous, he might better aim 

 to cure the error by a constitutional amendment than to 

 put upon the country the needless and ridiculous embar- 

 rassments that state bank paper would inflict. 



Between national bank notes and state bank notes, then, 

 the choice seems too easy to be called a problem. The real 

 bank-note question is whether we need any bank notes at 

 all; and if we do, how, under national control, they can be 

 kept secure and their volume can be made elastic. The 

 latter part of the subject has had a fairly full public dis- 

 cussion, but too little attention has been given to the pos- 

 sibility of doing without bank notes. That the withdrawal 

 of the present stock of bank notes would not probably be 



