CRS Annotated Constitution

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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 ordi[p.361]nary 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.1802 The States are not forbidden, however, to issue coupons receivable for taxes,1803 nor to execute instruments binding themselves to pay money at a future day for services rendered or money borrowed.1804 Bills issued by state banks are not bills of credit;1805 it is immaterial that the State is the sole stockholder of the bank,1806 that the officers of the bank were elected by the state legislature,1807 or that the capital of the bank was raised by the sale of state bonds.1808

Legal Tender

Relying on this clause, which applies only to the States and not to the Federal Government,1809 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.1810 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.1811

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[p.362]that they had never given such aid, were held invalid as being bills of attainder, as well as ex post facto laws.1812

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.1813 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.”1814

Ex Post Facto Laws

Scope of the Provision.—This clause, like the cognate restriction imposed on the Federal Government by Sec. 9, relates only to penal and criminal legislation and not to civil laws that affect private rights adversely.1815 There are three categories of ex post facto laws: those “which punish[] as a crime an act previously committed, which was innocent when done; which make[] more burdensome the punishment for a crime, after its commission; or which deprive[] one charged with crime of any defense available according to law at the time when the act was committed.”1816 The bar is directed only against legislative action and does not touch erroneous or inconsistent decisions by the courts.1817 Even though a law is[p.363]ex post facto and invalid as to crimes committed prior to its enactment, it is nonetheless valid as to subsequent offenses.1818 If it mitigates the rigor of the law in force at the time the crime was committed,1819 or if it merely penalizes the continuance of conduct lawfully begun before its passage, the statute is not ex post facto. Thus, measures penalizing the failure of a railroad to cut drains through existing embankments1820 or making illegal the continued possession of intoxicating liquors which were lawfully acquired1821 have been held valid.

Denial of Future Privileges to Past Offenders.—The right to practice a profession may be denied to one who was convicted of an offense before the statute was enacted if the offense reasonably may be regarded as a continuing disqualification for the profession. Without offending the Constitution, statutes barring a person from practicing medicine after conviction of a felony1822 or excluding convicted felons from waterfront union offices, unless pardoned or in receipt of a parole board’s good conduct certificate,1823 may be enforced against a person convicted before the measures were passed. But the test oath prescribed after the Civil War, whereby office holders, teachers, or preachers were required to swear that they had not participated in the Rebellion, was held invalid on the ground that it had no reasonable relation to fitness to perform official or professional duties, but rather was a punishment for past offenses.1824 A similar oath required of suitors in the courts also was held void.1825


1802 Craig v. Missouri, 4 Pet. (29 U.S.) 410, 425 (1830); Byrne v. Missouri, 8 Pet. (33 U.S.) 40 (1834).
1803 Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 269 (1885); Chaffin v. Taylor, 116 U.S. 567 (1886).
1804 Houston & Texas Central Rd. v. Texas, 177 U.S. 66 (1900).
1805 Briscoe v. Bank of Kentucky, 11 Pet. (36 U.S.) 257 (1837).
1806 Darrington v. Bank of Alabama, 13 How. (54 U.S.) 12, 15 (1851); Curran v. Arkansas, 15 How. (56 U.S.) 304, 317 (1854).
1807 Briscoe v. Bank of Kentucky, 11 Pet. (36 U.S.) 257 (1837).
1808 Woodruff v. Trapnall, 10 How. (51 U.S.) 190, 205 (1851).
1809 Legal Tender Cases (Juilliard v. Greenman), 110 U.S. 421, 446 (1884).
1810 Gwin v. Breedlove, 2 How. (43 U.S.) 29, 38 (1844). See also Griffin v. Thompson, 2 How. (43 U.S.) 244 (1844).
1811 Farmers & Merchants Bank v. Fed. Reserve Bank, 262 U.S. 649, 659 (1923).
1812 Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 323 (1867); Klinger v. Missouri, 13 Wall. (80 U.S.) 257 (1872); Pierce v. Carskadon, 16 Wall. (83 U.S.) 234, 239 (1873).
1813 Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 722–723 (1951). Cf. Konigsberg v. State Bar of California, 366 U.S. 36, 47 n. 9 (1961).
1814 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.
1815 Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1798); Watson v. Mercer, 8 Pet. (33 U.S.) 88, 110 (1834); Baltimore and Susquehanna Railroad Co. v. Nesbit, 10 How. (51 U.S.) 395, 401 (1850); Carpenter v. Pennsylvania, 17 How. (58 U.S.) 456, 463 (1855); Loche v. New Orleans, 4 Wall. (71 U.S.) 172 (1867); Orr v. Gilman, 183 U.S. 278, 285 (1902); Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911).

Supplement: [P. 362, add to n.1815:]

In Eastern Enterprises v. Apfel, 524 U.S. 498, 538 (1998) (concurring), Justice Thomas indicated a willingness to reconsider Calder to determine whether the clause should apply to civil legislation.

1816 Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169–170 (1925)). Alternatively, the Court described the reach of the clause as extending to laws that “alter the definition of crimes or increase the punishment for criminal acts.” Id., 43.
1817 Frank v. Mangum, 237 U.S. 309, 344 (1915); Ross v. Oregon, 227 U.S. 150, 161 (1913). However, an unforeseeable judicial enlargement of a criminal statute so as to encompass conduct not covered on the face of the statute operates like an ex post facto law if it is applied retroactively and violates due process in that event. Bouie v. City of Columbia, 378 U.S. 347 (1964). See Marks v. United States, 430 U.S. 188 (1977) (applying Bouie in context of Sec. 9, cl. 3). But see Splawn v. California, 431 U.S. 595 (1977) (rejecting application of Bouie ). The Court itself has not always adhered to this standard. See Ginzburg v. United States, 383 U.S. 463 (1966).
1818 Jachne v. New York, 128 U.S. 189, 190 (1888).
1819 Rooney v. North Dakota, 196 U.S. 319, 325 (1905).
1820 Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915).
1821 Samuels v. McCurdy, 267 U.S. 188 (1925).
1822 Hawker v. New York, 170 U.S. 189, 190 (1898). See also Reetz v. Michigan, 188 U.S. 505, 509 (1903); Lehmann v. State Board of Public Accountancy, 263 U.S. 394 (1923).
1823 De Veau v. Braisted, 363 U.S. 144, 160 (1960).
1824 Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 316 (1867).
1825 Pierce v. Carskadon, 16 Wall. (83 U.S.) 234 (1873).
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