And this is equivalent to denying all men’s right to make their own contracts, or to acquire any contract rights, which congress may not afterward, at pleasure, alter, or abolish.
It is equivalent to saying that the words of contracts are not to be taken in the sense in which they are used, by the parties themselves, at the time when the contracts are entered into, but only in such different senses as congress may choose to put upon them at any future time.
If this is not asserting the right of congress to abolish altogether men’s natural right to make their own contracts, what is it?
Incredible as such audacious villainy may seem to those unsophisticated persons, who imagine that a court of law should be a court of justice, it is nevertheless true, that this court intended to declare the unlimited power of congress to alter, at pleasure, the contracts of parties, after they have been made, by altering the kind and amount of money by which the contracts may be fulfilled. That they intended all this, is proved, not only by the extracts already given from their opinions, but also by the whole tenor of their arguments—too long to be repeated here—and more explicitly by these quotations, viz.:
There is no well-founded distinction to be made between the constitutional validity of an act of congress declaring treasury notes a legal tender for the payment of debts contracted after its passage, and that of an act making them a legal tender for the discharge of all debts, as well those incurred before, as those made after, its enactment.—Legal Tender Cases, 12 Wallace 530 (1870).
Every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power.—12 Wallace 549.
Contracts for the payment of money are subject to the authority of congress, at least so far as relates to the means of payment.—12 Wallace 549.
The court means here to say that “every contract for the payment of money, simply,” is necessarily made, by the parties, subject to the power of congress to alter it afterward—by altering the kind and value of the money with which it may be paid—into anything, into which they (congress) may choose to alter it.
And this is equivalent to saying that all such contracts are made, by the parties, with the implied understanding that the contracts, as written and signed by themselves, do not bind either of the parties to anything; but that they simply suggest, or initiate, some non-descript or other, which congress may afterward convert into a binding contract, of such a sort, and only such a sort, as they (congress) may see fit to convert it into.
Every one of these judges knew that no two men, having common honesty and common sense,—unless first deprived of all power to make their own contracts,—would ever enter into a contract to pay money, with any understanding that the government had any such arbitrary power as the court here ascribes to it, to alter their contract after it should be made. Such an absurd contract would, in reality, be no legal contract at all. It would be a mere gambling agreement, having, naturally and really, no legal “obligation” at all.
But further. A solvent contract to pay money is in reality—in law, and in equity—a bona fide mortgage upon the debtor’s property. And this mortgage right is as veritable a right of property, as is any right of property, that is conveyed by a warranty deed. And congress has no more right to invalidate this mortgage, by a single iota, than it has to invalidate a warranty deed of land. And these judges will sometime find out that such is “the obligation of contracts,” if they ever find out what “the obligation of contracts” is.
The justices of that court have had this question—what is “the obligation of contracts”?—before them for seventy years, and more. But they have never agreed among themselves—even by so many as a majority—as to what it is. And this disagreement is very good evidence that none of them have known what it is; for if any one of them had known what it is, he would doubtless have been able, long ago, to enlighten the rest.
Considering the vital importance of men’s contracts, it would evidently be more to the credit of these judges, if they would give their attention to this question of “the obligation of contracts,” until they shall have solved it, than it is to be telling fifty millions of people that they have no right to make any contracts at all, except such as congress has power to invalidate after they shall have been made. Such assertions as this, coming from a court that cannot even tell us what “the obligation of contracts” is, are not entitled to any serious consideration. On the contrary, they show us what farces and impostures these judicial opinions—or decisions, as they call them—are. They show that these judicial oracles, as men call them, are no better than some of the other so-called oracles, by whom mankind have been duped.
But these judges certainly never will find out what “the obligation of contracts” is, until they find out that men have the natural right to make their own contracts, and unalterably fix their “obligation”; and that governments can have no power whatever to make, unmake, alter, or invalidate that “obligation.”
Still further. Congress has the same power over weights and measures that it has over coins. And the court has no more right or reason to say that congress has power to alter existing contracts, by altering the value of the coins, than it has to say that, after any or all men have, for value received, entered into contracts to deliver so many bushels of wheat or other grain, so many pounds of beef, pork, butter, cheese, cotton, wool, or iron, so many yards of cloth, or so many feet of lumber, congress has power, by altering these weights and measures, to alter all these existing contracts, so as to convert them into contracts to deliver only half as many, or to deliver twice as many, bushels, pounds, yards, or feet, as the parties agreed upon.
To add to the farce, as well as to the iniquity, of these judicial opinions, it must be kept in mind, that the court says that, after A has sold valuable property to B, and has taken in payment an honest and sufficient mortgage on B’s property, congress has the power to compel him (A) to give up this mortgage, and to accept, in place of it, not anything of any real value whatever, but only the promissory note of a so-called government; and that government one which—if taxation without consent is robbery—never had an honest dollar in its treasury, with which to pay any of its debts, and is never likely to have one; but relies wholly on its future robberies for its means to pay them; and can give no guaranty, but its own interest at the time, that it will even make the payment out of its future robberies.
If a company of bandits were to seize a man’s property for their own uses, and give him their note, promising to pay him out of their future robberies, the transaction would not be considered a very legitimate one. But it would be intrinsically just as legitimate as is the one which the Supreme Court sanctions on the part of congress.
Banditti have not usually kept supreme courts of their own, to legalize either their robberies, or their promises to pay for past robberies, out of the proceeds of their future ones. Perhaps they may now take a lesson from our Supreme Court, and establish courts of their own, that will hereafter legalize all their contracts of this kind.
Section XXI.
To justify its declaration, that congress has power to alter men’s contracts after they are made, the court dwells upon the fact that, at the times when the legal-tender acts were passed, the government was in peril of its life; and asserts that it had therefore a right to do almost anything for its self-preservation, without much regard to its honesty, or dishonesty, towards private persons. Thus it says:
A civil war was then raging, which seriously threatened the overthrow of the government, and the destruction of the constitution itself. It demanded the equipment and support of large armies and navies, and the employment of money to an extent beyond the capacity of all ordinary sources of supply. Meanwhile the public treasury was nearly empty, and the credit of the government,