ArtI.S8.C6.1 Congress's Power to Punish Counterfeiting

Article I, Section 8, Clause 6:

[The Congress shall have Power . . . ] To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; . . .

The Supreme Court has interpreted the Counterfeiting Clause narrowly. The Court has held that the language of the Clause covers only the specific offense of counterfeiting, understood as the creation of forged coin, and not the separate offense of fraudulently using forged coins in transactions.1 At the same time, the Supreme Court has rebuffed attempts to read into this provision a limitation upon either the power of the states or upon the powers of Congress under the Coinage Clause and other provisions.2 The Court has ruled that a state may punish the use of forged coins.3 The Court also has sustained federal statutes penalizing the importation or circulation of counterfeit coin,4 or the willing and conscious possession of dies in the likeness of those used for making coins of the United States,5 on the ground that the power of Congress to coin money includes “the correspondent and necessary power and obligation to protect and to preserve in its purity this constitutional currency for the benefit of the nation.” 6

Fox v. Ohio, 46 U.S. (5 How.) 410, 433 (1847); United States v. Marigold, 50 U.S. (9 How.) 560, 568 (1850). back
Some commentators have therefore argued that the Counterfeiting Clause is superfluous or unnecessary as Congress would have the power to punish counterfeiters under the Necessary and Proper Clause. See, e.g., Edward S. Corwin, The Constitution and What It Means Today 74 (Harold W. Chase & Craig R. Ducat, eds., 13th ed., 1973). back
Fox, 46 U.S. (5 How.) at 433. back
Marigold, 50 U.S. (9 How.) at 568. back
Baender v. Barnett, 255 U.S. 224 (1921). back
Marigold, 50 U.S. (9 How.) at 568. In a 1984 decision, the Supreme Court observed that Congress had relied on its counterfeiting authority to pass certain statutes that restricted the use of photographic depictions of currency, but did not directly consider the scope of the Counterfeiting Clause. Regan v. Time, Inc., 468 U.S. 641, 643 (1984). The Court held that aspects of the laws at issue were unconstitutional on First Amendment grounds. Id. at 658. back