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St. Mary's Law Journal

Abstract

The constitutional Dollar was a silver coin. Federal and state paper moneys were

unconstitutional, and gold and copper coins were not Dollars. Consequently, notable

constitutional originalists claim any Dollar not constructed from silver—including the

current widely circulating paper Federal Reserve note—is unconstitutional. But the Dollar

soon may undergo an unprecedented technological metamorphosis: in 2022, the White

House and the Federal Reserve Bank Board of Governors advocated the possible adoption

of a U.S. Central Bank Digital Currency (“CBDC” Dollars). Private commercial

electronic bank credits have been issued for some time, but a CBDC Dollar would be

America’s first electronic government currency. Its anticipable legal tender status

would obligate its nationwide use.

Would a CBDC Dollar be constitutional? Originalism seems ill-equipped to answer.

Digital money did not exist in 1792 and the Dollar has not been on a silver standard in

practice since 1861 or statutorily since 1873. An originalist who calls for a return to

universal transacting in actual silver coins rather than debit cards or smart phone swipes

is more likely to draw snickers than assent. Perhaps originalism’s plausibility as the

preferred interpretative method for constitutional money matters sags because contextual

gaps between the antebellum and modern economies have grown too wide since the Constitution’s

creation.

To counter these concerns, this Article instead invokes the well-established “translator’s”

form of constitutional interpretation. It concludes that the Founders would have

welcomed the transactional ease of CBDC Dollars and would not have immediately dismissed

the CBDC Dollar as unconstitutional simply because the CBDC Dollar is not

silver weighing 371.25 grains fine. The translator’s method of interpretation does admit

the possibility that CBDC Dollars could be constitutional, but to be so, they would have

to be designed in a specific way (discussed herein) to preserve the original constitutional

understanding that a United States Dollar is a non-inflationary currency, and not a

government bond. Thus, necessary, but not necessarily sufficient, conditions for each constitutional

CBDC Dollar are that it will not be interest-bearing and it will be immediately

redeemable for a specific constitutional silver Dollar.

Finally, it is emphasized that any sufficient translation of a CBDC Dollar into a

constitutional Dollar must preserve constitutional privacy rights. This Article does not

take up that task and therefore this Article’s translation is incomplete

First Page

1

Last Page

60

Date Created

1-17-2024

Publisher

St. Mary's University School of Law

Editor

Maximiliano Elizondo

Suppress Author Email on Cover Page

1

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