Henry Holzer
Criminals OWN GOLD !
Wed Jan 21 14:49:58 2004
68.93.59.4

How Americans Lost Their Right To Own Gold And Became Criminals in the Process
Henry Mark Holzer

About the Author:

Henry Mark Holzer is Professor of Law at Brooklyn Law School, where he teaches constitutional law, administrative law, and other courses. His practice is limited to appeals and constitutional litigation.

Prof. Hoizer has lectured widely on a variety of legal and law- related topics, and his articles have appeared in newspapers, popular and professional magazines, and academic journals.

His most recent books are The Gold Clause (1980) and Government's Money Monopoly (1981).



Introduction

For the first time since [James] Bond had known Goldfinger, the big, bland face, always empty of expression. showed a trace of life . . . . "Mr. Bond, all my life I have been in love. I have been in love with gold. I love its colour, its brilliance, its divine heaviness . . . .I have worked all my life for gold . . . .I ask you . . . . is there any other substance on earth that so rewards its owner?"1

For centuries, most people have shared the fictional Mr. Gold- finger's attitude about gold, though not necessarily for the same reasons. While gold has been much sought after, both for ornamental and industrial purposes, modern times-or, more specifically, modern governments-have taught men to value it for one purpose above all others: as a hedge against the debasement of paper money. Monetary economist Charles Rist acknowledged this phenomenon when he wrote: "[I]n the absence of governments capable of maintaining stable money, private individuals seek to assure it for themselves, hoarding a purchasing power [gold] more stable than that of any other merchandise . . . stable money is one of the last arms that remains at the disposal of the individual to direct his own affairs, whether it be an enterprise or a simple household."2 Indeed, during the monetary crisis of the last several years, the price of gold soared in free world markets as more and more individuals around the world acquired gold as a hedge against actual and potential currency devaluations.3 Unfortunately, while others scrambled to protect themselves from the instability of paper money, Americans had to watch from the sidelines. For them, owning gold has long been a criminal offense, punishable by up to ten years in jail and/or up to a $10,000 fine; they also risk confiscation of the gold and a penalty of twice its value.4

Most Americans are unaware of the existence of these harsh criminal sanctions. Fewer still, including the legal community, are aware of how-and why-Americans lost their right to own gold in the first place. The facts, which should startle layman and lawyer alike, expose the shaky legal foundation on which the gold prohibition rests: an unconstitutional arrogation of congressional power and the improper delegation of that power to the President, leading to what can be called the "endless emergency rationale.

World War I: The Seeds Are Sown

The existence of a state of war between the United States and Germany in 1917 had prompted the passage of the Trading with the Enemy Act,5 one purpose of which was to make unlawful all dealings between Americans and the enemies of the United States.6 However, an obscure subsection of the Act7 authorized the President to regulate, investigate, and prohibit "under such rules and regulations as he may prescribe . . . any transactions in foreign exchange, export or earmarkings of gold or silver coin or bullion or currency . . . by any person within the United States . . . "8 These sweeping new presidential powers had teeth in them: elsewhere the Act provided for severe criminal sanctions of up to ten years in prison and/or up to a $10,000 fine for violation of any decrees which the President might make under the Act.9

The net result of the Act, vis-à-vis transactions in gold, was the arrogation by the Sixty-Fifth Congress of a "money power not granted by the Constitution10-and further: the delegation of that power to the Executive branch of the Government.

The war emergency and the President's duty to fight the war provided Congress with a convenient rationale for the Act. The fact is, however, that the Constitution nowhere empowers Congress to prohibit dealing in gold-much less authorizes Congress to delegate that power to a coordinate branch of government.

Worst of all, the power which Congress delegated to the President enabled him to make criminals out of honest American citizens whose crime would consist only of trying to protect themselves from official debasement of their money. In more fundamental terms, Americans henceforth would be "under the gun" for exercising a fundamental, inalienable right: the right to deal with their own property as they saw fit. Gold, no matter what its special characteristics, is, after all, just another form of property.

If there were those who feared that Congress had more in mind than merely prohibiting transactions in gold during the World War I emergency, their concern would have been justified. On September 24, 1918, less than a year after its original enactment, and virtually on the eve of the War's end, the Trading with the Enemy Act was amended in two important respects: not only was the wartime Act extended "[u]ntil the expiration of two years after the date of the termination of the war between the United States and the Imperial German Government. . . ,"11 but the amendment actually enlarged the Executive's power to control private gold. Now, President Woodrow Wilson could also "[i]nvestigate, regulate, or prohibit any hoarding . . . of gold . . . by any person within the United States."12 Less than two months later, on November 11, 1918, the war ended, and two years later Wilson's power over private gold expired. Once again, Americans were under no restraints with regard to what they did with their gold. Presumably, the emergency was over.



The New Deal and the New "Emergency"

Franklin D. Roosevelt was inaugurated as President on March 4, 1933. Throughout the country, banks were slamming their doors on depositors clamoring to withdraw their own money, preferably in gold. For people who were seeking to exchange soft paper currency for the more stable metal-as existing law allowed, and as the Government had solemnly pledged-the new President had other ideas. On March 5, 1933, one day after taking office, Roosevelt issued a Proclamation convening Congress in Extra Session at noon on March 9, 1933, a decision allegedly necessitated by what the Chief Executive referred to vaguely as "public interests."13 But March 9 was still four days away, and Roosevelt apparently was impatient to stop bank depositors from withdrawing their paper money or converting it to gold. Accordingly, the next day, March 6,1933, he took an unprecedented step. For the first time in United States history, an American president closed the nation's banks. By Proclamation,14 he stated the following: the recent gold and currency withdrawals had been "unwarranted" and for the purpose of "hoarding"; speculation abroad had caused "severe drains" on the "Nation's" gold stocks; the result was to create a national "emergency"; further "hoarding"; and "speculation" must be prevented and "appropriate measures" taken "to protect the interests of our people"; the Trading with the Enemy Act, as amended, had given the President certain powers over private gold; and therefore, "to prevent the export, hoarding, or earmarking of gold," the banks would take a "holiday" from Monday, March 6, 1933, to and including Thursday, March 9, 1933, and that during the holiday no bank would "pay out, export, earmark, or permit the withdrawal or transfer in any manner or by any device whatsoever of any gold . . . or take any other action which might facilitate . . . hoarding"15 Roosevelt's action was devoid of even arguable legal justification. Nowhere in the Constitution is any branch of government, let alone the Executive, given the power to close privately owned banking institutions. Nor did the Proclamation even purport to invoke constitutional authority. And despite the Proclamation's passing reference to an alleged "national emergency," no war conditions were present which could have enabled Roosevelt to argue that, under the Commander-in-Chief's "war powers,"16 he had the authority to place in suspended animation a huge, crucially important part of America's commercial establishment. The Proclamation's reference to the World War I Trading with the Enemy Act, which had long since expired, was a strained attempt to find some semblance of legal support for Roosevelt's unprecedented assumption of complete control over America's banking system.

It is no wonder that Roosevelt immediately sent to a docile and compliant 73d Congress, a hastily drawn but comprehensive bill to amend the moribund Trading with the Enemy Act and to attempt to secure a legal basis for the unilateral action he had already taken.17

Retroactive Rubberstamping: The Emergency Banking Act

The House of Representatives convened at noon on March 9, 1933. After the customary opening prayer and the disposing of certain routine "housekeeping" matters,18 a message was received from the President19 which requested passage of H.R. 1491.

The bill's preamble dramatizes the haste with which the President's minions sought to railroad the bill through both Houses of Congress: "An Act to provide relief in the existing national emergency in banking, and for other purposes. Be it enacted . . . that the Congress hereby declares that a serious emergency exists and that it is imperatively necessary speedily to put into effect remedies of uniform national application."20

In the House, Majority Leader Joseph W. Byrns, Democrat of Tennessee, asked for immediate consideration of the bill and that debate be limited to forty minutes, twenty minutes for each party. Mr. Byrns expressed the hope that under the peculiar circumstances and

under the serious circumstances which confront the country, we agree to take this bill up now, pass it, send it to the Senate so it may become a law this evening, and thus enable the President of the United States to open the banks tomorrow.21

Next rose House Minority Leader Bertrand H. Snell, Republican of New York. After noting that "it is entirely out of the ordinary to pass legislation in this House that, as far as I know, is not even in print at the time it is offered," Mr. Snell, in a burst of bipartisanship, observed:

The house is burning down, and the President of the United States says this is the way to put out the fire. [Applause.] And to me at this time there is only one answer to this question, and that is to give the President what he demands and says is necessary to meet the situation. I do not know that I am in favor of all the details carried in this bill,22 but whether I am or not, I am going to give the President of the United States today his way. He is the man responsible, and we must at this time follow his lead. I hope no one on this side of the aisle will object to the consideration of the request. [Applause]23

Someone then produced a copy of the bill, and it was read by the Clerk of the House.24 The bill was passed.25 After a short discussion, the spectacle of what had just transpired in the House in that hour-and-a-half session was best expressed by Congressman Lundeen:

Mr. LUNDEEN. Mr. Speaker, today the Chief Executive sent to this House of Representatives a banking bill for immediate enactment. The author of this bill seems to be unknown. No one has told us who drafted the bill. There appears to be a printed copy at the speakers desk, but no printed copies are available for the House Members. The bill has been driven through the House with cyclonic speed after 40 minutes debate, 20 minutes for the minority and 20 minutes for the majority.

I have demanded a roll call, but have been unable to get the attention of the Chair. Others have done the same, notably Congressman SINCLAIR of North Dakota, and Congressman BILL LEMKE, of North Dakota, as well as some of our other Farmer Labor Members. Fifteen men were standing, demanding a roll call, but that number is not sufficient; we therefore have the spectacle of the great House of Representatives of the United States of America passing, after a 40- minute debate, a bill its Members never read and never saw, a bill whose author is unknown. The great majority of the Members have been unable to get a minute's time to discuss this bill; we have been refused a roll call; and we have been refused recognition by the Chair. I do not mean to say that the Speaker of the House of Representatives intended to ignore us, but everything was in such a turmoil and there was so much excitement that we simply were not recognized.

I want to put myself on record against procedure of this kind and against the use of such methods in passing legislation affecting millions of lives and billions of dollars. It seems to me that under this bill thousands of small banks will be crushed and wiped out of existence, and that money and credit control will be still further concentrated in the hands of those who now hold the power.

It is safe to say that in normal times. after careful study of a printed copy and after careful debate and consideration, this bill would never have passed this House or any other House. Its passage could be accomplished only by rapid procedure, hurried and hectic debate, and a general rush for voting without roll call.

I believe in the House of Representatives. I believe in the power that was given us by the people. I believe that Congress is the greatest and most powerful body in America, and I believe that the people have vested in Congress their ultimate and final power in every great, vital question, and the Constitution bears me out in that.

I am suspicious of this railroading of bills through our House of Representatives, and I refuse to vote for a measure unseen and unknown.

I want the RECORD to show that I was, and am, against this bill and this method of procedure; and I believe no good will come out of it for America. We must not abdicate our power to exercise judgment. We must not allow ourselves to be swept off our feet by hysteria, and we must not let the power of the Executive paralyze our legislative action. If we do, it would be better for us to resign and go home-and save the people the salary they are paying us.

I look forward to that day when we shall read the bill we are considering, and see the author of the bill stand before the House and explain it, and then, after calm deliberation and sober judgment- after full and free debate-I hope to see sane and sensible legislation passed which will lift America out of this panic and disaster into which we were plunged by the World War.26

Neither "calm deliberation and sober judgment, nor "full and free debate" characterized what took place next in the Senate,27 where H.R. 1491-which affected "millions of lives and billions of dollars"-spent the afternoon with at least eighty United States Senators. Seventy-three of them voted "yea"28 and the bill, which had originated in the House at noon, passed the Senate by 7:30 P.M. Later that same night, Roosevelt approved it and H.R. 1491 became the Emergency Banking Act.29

Fundamentally, the Act accomplished three things. First, it retroactively approved the President's illegal action of March 6, 1933.30 (If Roosevelt had thought himself to be on solid legal ground when he closed the banks, one could ask why he thought it necessary to go to Congress in the first place. This legislative "rubber stamp" approach to past and future executive action would be used more than once in the months ahead.)

Second, it amended section 5(b) of the Trading with the Enemy Act, to provide that:

During time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, by means of licenses or otherwise, any transactions in foreign exchange, transf

• Criminal Gold .......cont. — Henry Holzer, Wed Jan 21 14:59