"Legal Tender" in the ConstitutionSubmitted by WJ Young on Sun, 08/19/2012 - 13:50
The words "legal tender" do not appear together in the US Constitution. However, the "legal tender" powers of each of the States are circumscribed in Article I, Section 10:
Article I, Section 10 -- No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Therein it is presumed in the Constitution that free and independent States do have the power to make any thing a tender in payment of debts (herein taken to refer to power to oblige by law what is and is not money, or "legal tender power"). With this clause it becomes a condition of membership in the union that every State only use this power to make gold and silver coin "legal tender".
In the same section, States are barred from coining "Money". Legal tender power is presented as distinct from the power to create coins for use as currency. Legal tender power defines what is money, but does not include the power to create money.
Congress, on the other hand, was specifically given power to create money:
Article I, Section 8 -- The Congress shall have Power...To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To "coin" money refers to the forming of some metal into some specific form. And while it seems Congress may legally choose to exercise this power to coin money from base metals rather than gold or silver, this money would be useless among States that have fulfilled their obligation to make only gold and silver legal tender. It is thus implied that Congress was being given power to create money as gold and/or silver coins.
Section 10 also does not require the States make the coins of Congress legal tender exclusively. It is not specific as to the mint of the coin, only that the "thing" be a gold or silver coin.
In summary, that legal tender powers reside with each of the States is implied by the restriction of said powers in Article I, Section 10. In the same section, said power is regarded distinctly from the power to coin money. Not only is there no enumeration of legal tender power to Congress, and thus would the States retain such power under the 10th Amendment, but the Constitution itself requires the States each possess legal tender power in order fulfill their obligations to name only gold and silver as tender in payment of debts.
Congress was given power to create coins and regulate its value, while the States retained the power to require it be used at all. If Congress issues something other than the gold or silver coin, States are specifically barred from requiring its use. Congress was not given legal tender power, so can not oblige the use of anything as money, let alone any particular gold or silver coin including its own.