To the People of the State of New York:

A FIFTH class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States:

1. “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 a legal 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. ”

The prohibition against treaties, alliances, and confederations makes a part of the existing articles of Union; and for reasons which need no explanation, is copied into the new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible.

The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority.

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On September 22, the Congressional Research Service issued a report that asserted that a bill voted on by the House of Representatives on September 17 to defund ACORN was possibly unconstitutional as a prohibited “bill of attainder.”  However, as the Heritage Foundation demonstrates in a new WebMemo  , that legal analysis is wrong.

 The Defund ACORN Act does not meet the legal definition of a bill of attainder.  There is no valid reason why the courts would not defer to the legislative judgment of Congress as to the regulatory purposes of the statute.  Congressional concern over an organization that receives taxpayer funds engaging in numerous violations of the law is more than enough justification to meet any test applied by a court trying to determine the reasonableness and rational basis for such legislation. Even the CRS recognizes the tenuousness of its claim of unconstitutionality when it admits that a “court would most likely be able to discern a rational, non-punitive purpose for [the Act]: a desire to prevent federal funds being used for activities that violate federal or state laws.” 

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