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The founders' origination clause and implications for the Affordable Care Act.

This Article is the first comprehensive examination of the original legal force of the Constitution's Origination Clause, drawing not merely on the records of the 1787-90 constitutional debates, but on Founding-Era British and American legislative practice and other sources. This Article defines the bills governed by the Origination Clause, the precise meaning of the House origination requirement, and the extent of the Senate's amendment power.

For illustrative purposes, the Article tests against its findings the currently-litigated claim that the financial penalty for failure to acquire individual health insurance under the Patient Protection and Affordable Care Act is invalid as a Senate-originated "tax." The Article concludes that this "tax" was a valid Senate amendment to a House-adopted revenue bill. The Article also concludes, however, that the amendments that added the PPACA's regulatory provisions and appropriations were outside the Senate's amendment power.
INTRODUCTION

I.   THE UNLOVED CLAUSE? SURVEY OF THE
     CONSTITUTIONAL CONVENTION AND
     RATIFICATION DEBATES
     A. The Constitutional Convention
     B. The Ratification Debates
     C. Non-Conclusions
II.  FOUNDING-ERA LEGISLATIVE PRACTICE: THE
     BRITISH PARLIAMENT
     A. How Parliamentary Practice Influenced
        the Founders
     B. Parliament and the Power of the Purse
        1. The Scope of the Term "Money Bill"
        2. Hotch-Potch Bills and Tacking
        3. The Dispute Over Amendments by
           the Lords
        4. What Was An "Amendment?"
     C. Summary of British Practice
III. FOUNDING-ERA LEGISLATIVE PRACTICE:
     AMERICAN CONSTITUTIONS AND
     LEGISLATURES
     A. American Constitution-Drafting:
        Background Information
     B. How the American States Adopted New
        Rules
     C. How the American Rules Continued to
        Evolve
     D. The Scope of "Amendment" in American
        Practice
     E. Summary of American Practice
IV.  WHAT THE CONSTITUTIONAL DEBATES TELL US
     ABOUT THE REASONS FOR HOUSE ORIGINATION
     AND THEIR SIGNIFICANCE
     A. The Policies Behind House Origination
     B. Significance of the Policies Behind House
        Origination
V.   WHAT THE CONSTITUTIONAL DEBATES TELL US
     ABOUT THE SCOPE OF AN "AMENDMENT"
     A. The Policies Served By the Amendment
        Qualifier
     B. How Broad Was the Amendment
        Qualifier?
VI.  CONCLUSION: THE ORIGINATION CLAUSE AND
     SOME IMPLICATIONS FOR THE PPACA


INTRODUCTION

This Article reconstructs the original legal force of the Origination Clause. The original legal force of a document or provision in a document is how the courts would have applied it immediately following its adoption. This Article relies on Founding-Era interpretive methods to recover the original legal force. (2)

The Origination Clause is one of several conditions for valid enactment appearing in the same section of the Constitution. (3) Besides House origination of revenue bills, the conditions include passage by both the Senate and the House of Representatives, presentment to the President, and either the President's signature or a subsequent two-thirds approval, on roll call votes, by each chamber of Congress. (4) It is clear from the text that a bill not complying with these procedures is not a valid law. In considering the Origination Clause, the Supreme Court has said as much. (5)

The Origination Clause is immediately relevant because of litigation ensuing from the Supreme Court's decision to sustain as a revenue-raising "tax" (6) the financial penalty for failing to comply with the individual insurance mandate of the Patient Protection and Affordable Care Act (PPACA). (7) Several challengers to the penalty contend that the PPACA effectively arose in the Senate by reason of a substitute bill, (8) rather than in the House, thereby rendering the penalty-tax void for non-compliance with the Origination Clause. (9) In defending the law, the government has responded that substitution of this kind is common within the legislative process and within the Senate's power to amend. (10)

This Article is not designed primarily to address the validity of the PPACA but to define the rules the Founders' Origination Clause imposed on congressional procedures. After the rules are defined, the Article briefly examines their implications for the PPACA controversy.

There has been no comprehensive treatment of the Founders' Origination Clause. Indeed, only a handful of scholars have examined its original meaning, (11) usually as an introduction to later jurisprudence or current issues. Most of their discussion of original meaning has been limited to summary examinations of the views of the Framers and a few other Founders. (12) This approach to originalist research is always problematic but particularly so in the case of the Origination Clause, which has very deep roots in prior history and in legislative practice. As shown by Part I of this Article, the constitutional debates divorced from the larger context tell us very little.

Most prior treatments also suffer from methodological problems common among legal writers untrained in historical method. (13) Perhaps the most serious of these is a form of anachronism: using sources dating from well after the Founding Era as evidence of the constitutional bargain. (14) To avoid anachronism, this Article generally avoids sources arising after May 29, 1790, the day Rhode Island became the thirteenth state to approve the Constitution.

Part I recounts the constitutional debates of 1787-90. This Part covers some of the same ground covered by prior writers, but in richer detail. Part I renders it obvious that even a detailed examination of the constitutional debates, when performed in isolation, leaves key questions unanswered. This is because our record of those debates leaves many of the Founders' assumptions unstated. We can clarify those assumptions only by exploring the Founders' understanding of history and their own experiences.

Part II explains that British parliamentary practice heavily influenced the Founding generation, and investigates how Parliament dealt with issues of origination and amendment. Part III then examines relevant history in America: the pre-Revolutionary constitutional controversies that defined for Americans "Bills for raising Revenue" and the American legislative practice that confirmed the parliamentary meaning of "originate" and of "Amendments." Equipped with this context, Part IV turns once again to the constitutional debates. It identifies the policies behind House origination and the precise meaning and scope of the requirement that "Bills for raising Revenue ... originate in the House of Representatives." Part V does the same for the amendment qualifier: "but the Senate may propose or concur with Amendments as on other Bills."

In addition to defining the meaning of the Origination Clause, Parts I-V demonstrate that the Origination Clause serves as a fixed rule of balance between the chambers of Congress imposed to promote good government and to protect individual liberty. The power of each house to adopt its own internal rules (15) did not include authority to alter the balance between the houses. (16) Finally, the Article's Conclusion summarizes the lessons of the Article and their implications for the constitutionality of the PPACA.

I. THE UNLOVED CLAUSE? SURVEY OF THE CONSTITUTIONAL CONVENTION AND RATIFICATION DEBATES

A. The Constitutional Convention

The Origination Clause almost did not make it into the Constitution. Neither the Virginia Plan nor the New Jersey Plan contained origination language. This is understandable because the former envisioned both legislative chambers being apportioned by population and the latter envisioned a unicameral legislature. Yet resistance to House origination continued throughout most of the Constitutional Convention.

On June 13, 1787, after the delegates had been in full session for over two weeks, (17) Elbridge Gerry of Massachusetts moved to "restrain the Senatorial branch from originating money bills." (18) His apparent goal was to encourage larger states to recede from their demand that representation in both legislative chambers be based on population or on property.

Gerry's proposal ran into a buzzsaw of opposition from the convention's "nationalists." These delegates supported a very strong national government and, by extension, proportionate representation in both chambers. Pierce Butler and Charles Cotesworth Pinkney of South Carolina, James Madison of Virginia, Rufus King of Massachusetts, and even the moderate Roger Sherman of Connecticut all spoke against the proposal. (19) Not only did they reject House origination as compensation, but some claimed it was useless or even harmful. (20) Gerry's motion was trounced, seven states to three.

Nevertheless, proposals for an exclusive House privilege to initiate money bills recurred several times, usually as appendages to the issue of legislative representation. On July 5, 1787, an ad hoc committee appointed to resolve the issue of legislative representation offered its report. The committee had reached a compromise whereby the lower chamber--or, as it was commonly called early in the proceedings, the "first branch"--was to be based primarily on population while the upper chamber, the "second branch", was to be based on equal representation of states. As compensation to the larger states for agreeing to equal state representation in the Senate, the committee report provided for exclusive House origination of money bills. (21) The report proposed that:
   all bills for raising or appropriating money, and for fixing
   the Salaries of the Officers of the Governt. of the U. States
   shall originate in the 1st branch of the Legislature, and shall
   not be altered or amended by the 2d branch: and that no
   money shall be drawn from the public Treasury, but in pursuance
   of appropriations to be originated in the 1st branch. (22)


The committee language largely mirrored common depictions of British parliamentary practice. (23)

Because the advocates of proportionate representation were holding out for proportionate representation, they were not interested in compensation. Arguing against the committee report were several of the previous opponents, now joined by Gouverneur Morris and James Wilson, both of Pennsylvania. Supporters, such as Virginia's George Mason and Delaware's Gunning Bedford, Jr., had little to say on the merits, preferring to appeal primarily to the need for compromise. The convention opted to retain the House-origination part of the committee report, but the vote was equivocal: five states in favor, three opposed, with three delegations evenly divided. (24)

In late July, the convention sent its list of formal resolutions to the Committee of Detail so that committee could prepare the first draft of a constitution. (25) The committee presented its draft on August 6. (26) In accordance with the convention's vote for the July 5 compromise, the committee draft provided that "All bills for raising or appropriating money, and for fixing the salaries of the officers of the Government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate." (27) On August 8, however, by a tally of seven states to four the convention approved a motion from South Carolina's Charles Pinckney to strike this provision. (28)

The following day, Virginia Governor Edmund Randolph (29) "expressed his dissatisfaction" with the prior day's vote "concerning money bills, as endangering the success of the plan [the Constitution], and extremely objectionable in itself; and gave notice that he should move for a reconsideration of the vote." (30) On August 11, Randolph formally added an amendment to the House origination proposal limiting it to revenue bills only, and qualifying it with a senatorial power to amend. (31)

The debate over the Randolph proposal displayed a far more able defense of House origination than mounted heretofore. It included thoughtful speeches by Randolph, Virginia's George Mason, and Delaware's John Dickinson. (32) Still, Randolph lost, seven states to four. (33)

On August 15, Caleb Strong of Massachusetts proposed origination language during a discussion of the Treaty Clause, only to see the issue postponed. (34) On September 5, another ad hoc committee appointed to mediate differences recommended origination language incorporating Randolph's proposal: "All bills for raising revenue shall originate in the House of Representatives, and shall be subject to alterations and amendments by the Senate." (35) After another postponement, (36) the convention returned to the topic on September 8. (37) The delegates replaced "and shall be subject to alterations and amendments by the Senate" with language from the 1780 Massachusetts constitution. (38) The convention voted for the final Origination Clause by a count of nine states to two. (39)

B. The Ratification Debates

More determinative of the original legal force than the Framers' debates is the understanding of the Constitution's 1,648 ratifiers. (40) The Origination Clause was the topic of considerable discussion both among the ratifiers and among the orators, pamphleteers, and essayists who sought to influence them. At first appearance, however, the extant material seems less helpful than such material often is. (41)

One reason the extant material initially seems unhelpful is that participants in the ratification process--even those on the same side--exhibited markedly different views about the importance of the Origination Clause. Federalists and Anti-Federalists not only differed from each other, but they differed among themselves. The differences seem to have been rooted largely in political expediency. In general, the debate on the Origination Clause displayed the following pattern:

First: Federalists promoting the Constitution to the ratifying public in more populous states (for example, Virginia, (42) Penn sylvania, (43) Massachusetts (44)) represented House origination as a valuable addition to the authority of the House of Representatives, the legislative chamber in which populous states would enjoy more influence. (45) Illustrative is the comment of "Valerius," a Virginia supporter of the Constitution:
   The senate has the power of originating all bills, except revenue
   bills, in common with the house of representatives, and no bill can
   pass into a law without the approbation of two thirds of both
   houses. From this exclusion of the senate with respect to money
   bills, it is plain that this body does not possess such extensive
   legislative power, as the house of representatives. (46)


In addition to touting House origination, large state Federalists deprecated the significance of the amendment qualifier. Virginia Federalist James Madison labeled it "paltry." (47)

Second: Large state Anti-Federalists minimized the value of House origination or criticized the allegedly wide scope of the amendment qualification. (48) Thus, one group of Virginia Anti

Federalists argued that the Senate should have no power to amend at all. (49) Other large state Anti-Federalists contended that the amendment qualifier left any benefits from House origination uncertain. For example, a Massachusetts Anti-Federalist wrote:
   The Senate have [sic] the power of altering all money bills, and of
   originating appropriations of money, and the salaries of the
   officers of their own appointment ... although they are not the
   Representatives of the people, or amenable to them.--These, with
   their other great powers (viz. their powers in the appointment of
   Ambassadours, and all publick officers, in making treaties, and in
   trying all impeachments) their influence upon and connection with
   the Supreme Executive from these causes, their duration of office,
   and their being a constant existing body almost continually
   setting, joined with their being one compleat [sic] branch of the
   Legislature, will destroy any balance in the government, and enable
   them to accomplish what usurpations they please upon the rights and
   liberties of the people. (50)


Third: In small states (Maryland, Delaware, and New Jersey) the roles were reversed. Small state Federalists wished to demonstrate that the Senate, where their states would enjoy equal representation, would be an important part of the government, so they deemphasized House origination while emphasizing the Senate's amendment authority. Maryland's James McHenry, who had attended the Constitutional Convention, told his state's house of delegates that, "The Larger States hoped for an advantage by confirming this [origination] priviledge [sic] to that Branch where their numbers predominated, and it ended in a compromise by which the Lesser States obtained a power of amendment in the Senate ...," (51)

Fourth: Small-state Anti-Federalists denigrated House origination. They argued that the Senate contribution to revenue bills should not have been limited to amendments--meaning that the Senate should have been given full origination power. Luther Martin, the bibulous but durable attorney general of Maryland, (52) was a disgruntled delegate at the framing convention. During the ratification debates he attacked the alleged insignificance of the Senate:
   [T]he Senate--the members of which will, it may be presumed, be the
   most select in their choice, and consist of men the most
   enlightened, and of the greatest abilities, who, from the duration
   of their appointment and the permanency of their body, will
   probably be best acquainted with the common concerns of the States,
   and with the means of providing for them--will be rendered almost
   useless as a part of the legislature; and that they will have but
   little to do in that capacity except patiently to wait the
   proceedings of the House of representatives, and afterwards examine
   and approve, or propose amendments. (53)


There were a few exceptions to the foregoing patterns. John Dickinson was a Delaware Federalist who praised the House's origination power in his Fabius essays. (54) Perhaps this was because he addressed a national audience. Madison uncharacteristically wandered. In Philadelphia, he opposed House origination as either harmful or useless. (55) During the ratification fight, he acted more like a typical large state Federalist--praising House origination and belittling the amendment qualifier. (56) During the Virginia ratifying convention, he conceded that the Senate's power to amend was very broad: narrower than a power to originate, but not "considerably]" so. (57)

C. Non-Conclusions

Though interesting, the foregoing account of the framing and ratification tells us little about the meaning, scope, and purpose of the Origination Clause. From that account, the Clause appears to be merely a sop from small states to large states. Discussion on the merits of the Clause seems contradictory and driven solely by political expediency. Key portions of the Clause--Bills for raising Revenue, originate, Amendments--all remain undefined.

The constitutional debates are only fruitful in light of the larger context. That is why the larger context is so important. (58) Only after exploring that context can we return fruitfully to the constitutional debates. (59)

II. FOUNDING-ERA LEGISLATIVE PRACTICE: THE BRITISH PARLIAMENT (60)

A. How Parliamentary Practice Influenced the Founders

American political leaders knew something of the British Parliament. During the colonial era, Parliament produced much of the law affecting British America, and Parliament's overreach provoked the Revolution. Some American leaders learned about Parliament from direct experience. Starting in 1757, Benjamin Franklin served as a colonial agent in London for many years. (61) John Dickinson studied in the Middle Temple, one of the four Inns of Court for training barristers. His letters from London to his father are filled with reflections on parliamentary politics. (62) Six other Framers (63) and several major ratification figures (64) were also members of an elite coterie of American lawyers educated at Inns. (65) Among the latter was Virginia's William Grayson, (66) whom we shall meet again. (67) Many Founders who had not spent time in London were exposed to parliamentary institutions and procedures from popular writings (68) and from service in, or observation of, American colonial and state legislatures.

During the eighteenth century, Parliament consisted of the Crown and two legislative chambers: the House of Commons and the House of Lords. The House of Commons was elected every seven years, unless sooner dissolved by the Crown, (69) while the House of Lords was mostly hereditary. (70) Before independence, the governments of Britain's American colonies mimicked that structure: they featured colonial governors, usually appointed by the Crown; popularly elected lower chambers; and less democratic upper chambers. After independence, the bicameral structure remained intact (71) in all states except Georgia, Pennsylvania, and the independent state of Vermont. (72)

Colonial and state legislative procedures also mimicked those of Parliament. (73) Although it is not strictly relevant to our investigation, we might note that those procedures later became pervasive in the federal Congress and remain so in American legislative bodies even today. (74)

B. Parliament and the Power of the Purse

1. The Scope of the Term "Money Bill"

One of the more celebrated aspects of parliamentary practice pertained to "money bills"--a term whose contours are discussed below. (75) As commonly stated, parliamentary practice was as follows:

* Only the House of Commons could originate money bills. This meant that each money bill had to be introduced in the Commons by a member of that chamber, considered by a committee of that chamber (which might be the committee of the whole), perhaps suffer amendments in the same body, and then win a majority vote therein--all before being sent to the Lords. (76)

* The House of Lords could approve or reject any money bill. (77)

* The Lords could not offer amendments to money bills; the Lords were required to accept or reject each as an entirety. (78)

* Once the Lords had approved a money bill, it was presented to the King or Queen for royal approval. (79)

These rules were the basis of the saying that the House of Commons held the "power of the purse."

Reality was more complicated. Parliamentary historian David W. Hayton, writing of the late seventeenth and early eighteenth century, observed, "The Commons' exclusive control over fiscal legislation was a perennial source of friction." (80) One area of friction was the scope of the phrase "money bill." Most everyone agreed that the term included all alterations in the tax laws, (81) whether they raised or reduced (82) taxes. Beyond that, the definitions varied somewhat. William Blackstone defined a money bill as
   [any] bill[], by which money is directed to be raised upon
   the subject [meaning citizen], for any purpose or in any
   shape whatsoever; either for the exigencies of government,
   and collected from the kingdom in general, as the land tax;
   or for private benefit, and collected in any particular district,
   as by turnpikes, parish rates, and the like. (83)


Roger Acherley's 1759 work, The Brittanic Constitution, so described a "money bill" as to reserve to the Commons:
   [t]he sole Right and power over the Monies and Treasures of
   the People, and of Giving and Granting, or Denying Aids or
   Monies for Publick Service, and ... not only of all Laws for
   Imposing Taxes, and Levying and Raising Aids or Money upon
   the People, for the Defence and Support of the State and
   Government; But also of all Laws, touching the Taking from
   any Man his Property; and should have power to Inquire into,
   and Judge of the Uses and Occasions for which Monies
   are to be Demanded and Given; and to Appropriate the
   same to those Uses ..., (84)


One distinction between Blackstone's and Acherley's definitions is that Acherley seemed to include exactions for purposes of regulation ("all Laws, touching the Taking from any Man his Property") while Blackstone did not. (85) Controversy was quite heated over this topic. Some in the Lords contended that purely regulatory exactions never qualified as money bills. (86) Some members of the Commons argued that any measure imposing duties, even if imposed purely to regulate commerce, was a money bill. (87) Each House, however, contained a spectrum of opinion on the matter. Illustrative is a 1779 Commons debate on the Lords' amendments to a militia bill, a debate that centered on whether the Commons should reject the amendments as impermissible alterations in a money bill. Ultimately, the Commons decided to accept the amendments. (88)

Another difference between the Acherley and Blackstone definitions is that Acherley, unlike Blackstone, included appropriations within the scope of "money bill." To modern eyes, this would seem to be a major difference, but in the eighteenth century it was not. During the years before the drafting of the U.S. Constitution, Parliament generally handled revenue and appropriations together. The Commons would initiate a "supply bill" (89) creating or re-authorizing one or more levies and earmarking the levy or levies for a particular purpose. (90) For example, the bill funding the "civil list" for a new monarch's reign--that is, support for the sovereign's household and for most of the civil service--earmarked for that purpose hereditary Crown revenue supplemented by new or renewed excise taxes and customs duties. (91) Other supply bills imposed named taxes (such as land taxes), often time-limited, for funding a designated activity, such as fighting a war. (92) Except for bills for the support of the army, supply bills seldom appropriated funds in detail as modern legislatures do. Allocation within the permitted purpose was the task of the executive branch. (93) Not until adoption of Edmund Burke's (94) 1782 reform legislation did Parliament begin to appropriate non-military expenses in detail. (95) Not until 1787 did Parliament create the Consolidated Fund, an account analogous to a modern state general fund, fed by many revenue bills and appropriated for many purposes. (96)

In the Parliament known to the Founders, therefore, "supply"--consisting of both revenue and spending--was an accepted legislative category. To employ the modern legislative term, supply was a single subject. (97) This was true even of omnibus financial bills containing multiple sources of revenue for multiple purposes, including but not limited to the civil list bill. (98)

2. Hotch-Potch Bills and Tacking

Although a chamber of Parliament originating a bill was not bound by a single subject rule, the usual bill was limited to some accepted legislative category. The relatively rare exception was the "hotch-potch bill." (99) A hotch-potch bill was one, often introduced late in the session, encompassing matters in disparate categories. (100)

During the seventeenth century and very early eighteenth century, the Commons sometimes created a hotch-potch by combining non-financial matter into a money bill. This was done when opposition in the Lords to the non-financial matter was expected, but the Commons hoped the Peers would be sufficiently desperate for revenue to approve the measure. The practice of throwing non-financial provisions into hotch-potch with financial provisions was called tacking, (101)

Unsurprisingly, the Peers objected to tacking. In 1702 they adopted a House of Lords standing order (rule) by which they automatically rejected any money bill onto which the Commons had tacked non-financial provisions. (102) The Peers were sufficiently firm about this rule (103) that by the time of the American founding efforts to tack were rare.

3. The Dispute Over Amendments by the Lords

I have found no instances in which even the staunchest member of the House of Lords disputed the exclusive privilege of the Commons to originate money bills. (104) But there was great controversy over whether the Peers could amend them. (105) In a 1778 floor speech, Lord Shelburn argued that they could:
   I shall never submit to the doctrines I have heard this day
   from the woolsack [the Chancellor], that the other House are
   the only representatives and guardians of the people's
   rights. I boldly maintain the contrary. I say this House are
   equally the representatives of the people. They hold the balance;
   and if they should perceive two of the branches of the
   legislature unite in oppressing and enslaving the people, it is
   their duty to interpose to prevent it.

   The noble and learned lord on the woolsack, in the debate
   which opened the business of the day, asserted, that your
   lordships were incompetent to make any alteration in a
   Money Bill, or a Bill of Supply. I should be glad to see the
   matter fairly and fully discussed, and the subject brought
   forward and argued upon precedent, as well as all its collateral
   relations. I should be pleased to see the question fairly
   committed, were it for no other reason but to hear the sleek,
   smooth contractors from the other House of Parliament,
   come to that bar and declare, that they, and they only, could
   frame a Money Bill; and they, and they only, could dispose
   of the property of the peers of Great Britain.... [U]ntil the
   claim, after a solemn discussion of this House, is openly and
   directly relinquished, I shall continue to be of opinion, that
   your lordships have a right to alter, amend, or reject a money
   Bill.... (106)


The House of Lords made recurrent efforts to amend money bills. Most of the time the Commons' response was hostile. Thus, in 1772 the Lords offered an amendment to a corn bill--not to impose, but to remove a charge. Several indignant speakers rose in the Commons to denounce the perceived insult, including former Massachusetts colonial governor Thomas Pownall (the bill's sponsor) and a particularly outraged Edmund Burke. The Speaker of the Commons added that "he would do his part in the business, and toss the Bill over the table." He proceeded to do so, and other members of the House kicked it on their way out. (107)

The incident illustrates that the Commons generally defined a "money bill" to include not merely rate increases but all changes in levies, including reductions. (108) The incident does not illustrate, however, the consistent response of the Commons to amendments from the Lords. The second edition of John Hatsell's authoritative study of parliamentary practice, published in 1785, listed 85 incidents in which the Peers had attempted to send money bills back to the Commons with amendments. (109) Hatsell's list shows that the Commons acquiesced to the Lords' amendments in 22 of these cases, and agreed to conferences or otherwise deliberated over the amendments in three others. (110) In many, but not all, of the instances in which the Commons approved the amendments, they added provisos asserting their privilege and/or noting that the amendments were "small" or remedied prior mistakes. There seems to have been a gradual reduction over time in Commons acquiescence to Lords amendments. But Hatsell listed amendments accepted by the Commons as late as 1750 and taken into honest consideration as late as 1772. (111)

This willingness to bend reflects the reality that Peers' opinion on financial legislation was often valuable. Even Charles James Fox, a leader of the liberal forces in the Commons, (112) said he thought the right of the Lords to participate in money bills "was often too strictly construed." (113)

To his list of Lords amendments, Hatsell appended two comments that cannot be reconciled. In the first, he wrote that "the Commons have vigorously and uniformly opposed the attempt" of the Lords to interfere in matters of supply. (114) In the second, just a few pages later, he backed away from that characterization and attempted to synthesize the cases. He concluded that (1) the Lords could correct mistakes in revenue bills and (2) they could offer any kind of amendment in bills imposing exactions for regulatory purposes if they did not "make any alteration in the quantum of the toll or rate, in the disposition or duration of it, or in the persons, commissioners, or collectors appointed to manage it." (115) Whether Hatsell's synthesis was entirely accurate is less important than the fact that the state of the record induced him to believe it was tenable. That record shows that, whatever the correct theory was, in practice much depended on tug-of-war between the chambers, inter-house conference committees, (116) and the efficacy of conciliation. (117) There is every reason to believe that leading founders were aware that the rules were not entirely settled in Britain. (118)

4. What Was An "Amendment?"

The Origination Clause states that "the Senate may propose or concur with Amendments as on other Bills." In other words, the Constitution's definition of an "Amendment" of a revenue bill is the same as the general definition of a legislative amendment. (119) Thus, in seeking the Founding-Era definition of "Amendment," one may consult how that term was used in both revenue and non-revenue bills.

"Amendment" is, of course, a noun that corresponds to the verb "amend." Etymologically, the verb is closely related to "mend"--that is, to correct or repair. Eighteenth century dictionaries reflect this etymology by defining "amend" in the sense of to "correct" or "make better." (120) For example, Francis Allen's dictionary defined "amendment" as "an alteration which makes it better, a correction." (121) In modern speech we preserve this connection between amending and mending through the idiom, "to make amends."

Within Parliament, members frequently used the words "amend" and "amendment" so as to render explicit the connection to "mend." (122) To repair roads, for example, was to "amend" them. (123) MPs sometimes distinguished between an "amendment/' which made things better, and an "alteration," which could make them worse. (124) On other occasions they might use "amend" merely as a synonym for "alter." (125) However, they seem not to have varied their usage according to the nature of the item amended--that is, whether that item was a bill from the same house, a bill from the other house, a resolution, a report, or a prior law. (126)

MPs sometimes did draw a line between amending a bill and changing its essence. In 1742, the Earl of Elay argued that a particular bill was:
   one as cannot be amended, without first erasing it to its very
   foundation.... If it appears to be such a Bill as cannot be
   fully amended in the committee, without altering its nature,
   and making it in a great measure a new Bill; we ought not to
   send it to a committee, because every Bill, by our forms of
   proceeding, ought to be twice read and considered in the
   House before its being committed, which, I am sure, can
   never be said of a Bill so moulded in the committee as to
   make it quite a new Bill." (127)


The parliamentary journals and debate collections do not reproduce the text of most amendments, but judging by those that are reproduced, the overwhelming majority worked only modest changes in the underlying bills. (128) However, the cumulative effect of a series of amendments could alter a proposal greatly. (129) In 1789, MP Richard Brinsley Sheridan (130) observed that "all the ministers [sic] revenue bills were hotch-potch bills; for, if they were not so when first brought in, they had so many things altered, amended, and added, before they went through, that the original bill was hardly to be traced." (131)

On relatively rare occasions even a single amendment could work great alteration. (132) One MP spoke of "radical amendments" (133)--that is, changes that went to the root (radix) of a proposal. Members in an originating chamber sometimes grumbled about how the amending chamber had gutted a bill under the guise of amendment, but the originating chamber might adopt the changes nevertheless. (134) Members also advanced amendments designed to discredit the underlying bill. (135) There was more license for this sort of foolery when an originating chamber was amending its own bill than when it was amending a bill from the other chamber. If one House lacerated the other's bills, the other would likely call a joint conference. (136)

To illustrate the great latitude of amendments permitted, John Hatsell's treatise cited a handful of incidents. (137) In one notorious episode, a resolution criticizing the ministry for spending money on a military action by the Duke of Aremberg was successfully amended to one that praised the ministry for the same action. (138) Yet incidents of this kind were rare and some stretched far back in history. Hatsell dug back over a century (to 1678) to report a dispute between the Houses over Lords' amendments to a money bill for disbanding the army. (139) Rather than agree to the amendments, the Commons inserted the substance of the original bill into another bill, to which the Lords felt constrained to assent. (140)

Much more recent, in 1779, was the complaint of Lord Stormont that a particular
   [a]mendment was not a correction of a few words of the
   Address [of Thanks to the Crown], which he had ever considered
   to be the sort of amendment warranted by parliamentary
   usage; but the substituting of entire new matter, totally
   foreign to the address, and equally foreign to the whole
   business of the day. (141)


As these incidents demonstrate, amendments occasionally replaced key language in a bill or resolution. On the other hand, complete substitutes--the gutting of a bill and replacement with new language--may have been unknown. My review of parliamentary records, both journals and debates, did not uncover a single example of a complete substitute offered as an amendment, either within or between chambers. Daniel Smyth, an independent researcher, reviewed all editions of Cobbett's Parliamentary History for the period 1688 through 1789 and found none. (142)

Moreover, I found no amendments that altered the subject matter of an original motion. Even the amendment that reversed the sentiment expressed on the Duke of Aremberg's military action did not change the resolution's subject matter. (143) Similarly, the amendment of which Lord Stormont complained did not change the topic of the underlying motion: It was an address to the Crown before amendment, and it remained one after. (144)

Most American legislative bodies today require that an amendment be "germane" to the underlying measure. (145) Mason's Manual, the most popular book of legislative procedure, states, however, that "[t]o be germane, the amendment is required only to relate to the same subject. It may entirely change the effect of or be in conflict with the spirit of the original motion or measure and still be germane to the subject." (146) Eighteenth-century parliamentary records do not use the term "germane" to describe the necessary connection between the subject of a bill and its amendment, but they support the conclusion that the germaneness rule of Mason's Manual was already in place. (147) Use of the term "amend" may have strayed from the word's connection to "mend," but in parliamentary practice it still bore a sense different from complete erasure or repeal. (148) There was merit to the distinction that Burke drew in 1790 when he spoke of foolish public policies undertaken in "a spirit well calculated to overturn states, but perfectly unfit to amend them." (149)

At least one commentator, relying principally on a passage in Jefferson's Manual of Parliamentary Practice, has maintained that completely unrelated substitutes-as-amendments were permitted in Parliament. (150) In the passage relied on, Jefferson cited Hatsell's treatise for the proposition that an "amendment" could include a complete substitute that might "totally alter the nature of the proposition." (151) In fact, however, Hatsell does not go so far: He reports no incidents in which an amendment worked a complete replacement and no amendments that altered the subject of the original bill. Hatsell reports only rare incidents in which the wording of a resolution was altered to change its political thrust. (152)

Jefferson also cited Antichell Grey's Debates to conclude that in Parliament, "[a] new bill may be ingrafted by way of amendment, on the words 'Be it enacted, &c.'" (153) Grey is, however, not much of a source for Founding-Era practice, since he covered only the period from 1667 through 1694, a seventeen-year stretch ending nearly a century before the Constitution was ratified. Further, the cited pages of Grey do not support Jefferson's conclusion. To the extent they are coherent, they appear only to report dissatisfaction in the Commons with amendments to a bill added by the Lords and vague suggestions that the Commons respond aggressively. I have reproduced the relevant passages in the footnote, so one may judge for oneself. (154)

C. Summary of British Practice

An American founder reasonably familiar with British parliamentary practice would have noted the following: All money bills were introduced first in the House of Commons and had to be passed by that chamber before being sent to the Lords. (155) That was the meaning of the term "originate." The typical money bill created or extended one or more taxes or other revenue sources and earmarked them to fund designated spending. The "money bill" category also included fees-for-service such as tolls and, in the view of many, exactions for regulatory purposes.

An originating chamber enjoyed the prerogative of initiating "hotch-potch bills." But the Lords resisted "tacking," the addition of non-financial terms to money bills. The effect of the Lords' resistance was to limit money bills to the subject of money.

The Commons took the constitutional position that the Lords could not proffer amendments to money bills, but could only accept or reject them entirely. Some Peers disagreed, and claimed for their chamber full power to propose amendments. Sometimes the Lords did offer amendments, only to see the Commons contemptuously discard them as a breach of privilege. On rarer occasions, the Commons acceded to the Lords' amendments or negotiated over them.

The amendment power was broad and an amendment could even reverse the political thrust of the underlying bill. But amendment was limited to the subject-matter of the original. In other words, it had to address matters within the same accepted categories. Only an originating chamber could designate the general subject(s) of a bill or create a hotch-potch. The amending chamber could not add a new subject, change the subject, or create a hotch-potch. Amendment practice in Parliament probably did not extend to complete substitutes, even if germane.

III. FOUNDING-ERA LEGISLATIVE PRACTICE: AMERICAN CONSTITUTIONS AND LEGISLATURES

A. American Constitution-Drafting: Background Information

Political leaders in Britain's North American colonies generally were familiar with parliamentary procedures, including the practices prevailing (and the practices contested) pertaining to money bills. (156) In fact, colonial legislatures imitated Parliament by adopting "supply bills" comprised of taxes earmarked for designated spending. (157) Many Americans had long wished for an origination rule in the colonies: (158)
   [T]he colonists always insisted that [the power of origination
   of money bills] belonged to them in all their [lower house]
   legislative bodies as a matter of course because they were
   free-born Englishmen. In Pennsylvania, especially, they contended
   for it against their proprietors and deputy-governors
   with the greatest persistency, and insisted on the right in its
   fullest extent,--namely, that money-bills should not only
   originate in the lower house of assembly, but should also be
   either accepted or rejected by the council or upper house
   without any attempt to amend them. (159)


In the years immediately before the Revolution, however, the origination issue was overshadowed by Parliament's imposition of financial exactions on America. Some of these took the form of restrictive tariffs as part of a scheme for regulating commerce among units of the British Empire. Other exactions were imposed to raise revenue. Most American opinion-molders conceded that Parliament (or, in the argument of James Wilson, the Crown) (160) had authority to impose the former. They agreed that the colonists had consented to central regulation for the general welfare of the Empire. (161) However, they maintained that they had never consented to exactions for raising revenue. (162)

In phrasing their objections, the colonists argued that they had never consented to be taxed by anyone but themselves, and that it was the right of Englishmen not to be taxed without their consent. Contemporaneous dictionaries defined "tax" to include regulatory exactions, (163) but Americans developed a more specific usage: A tax was a levy adopted to raise money rather than to regulate.

This usage was refined by John Dickinson, author of the explosive series newspaper essays entitled Letters from a Farmer in Pennsylvania (1767-68). (164) "To the word 'tax,'" Dickinson wrote, "I annex that meaning which the constitution and history of England require to be annexed to it; that is--that it is an imposition on the subject, for the sole purpose of levying money. " (165) He noted that a resolve of the 1765 Stamp Act Congress had stated, "ALL supplies to the crown, being free gifts of the people, it is unreasonable, and inconsistent with the principles and spirit of the British constitution, for the people of Great Britain to grant to his Majesty the property of the colonies." (166) He then added, "Here is no distinction made between internal and external taxes.... This language is clear and important. A 'TAX' means an imposition to raise money." (167)

Dickinson's identification of taxes with revenue had been foreshadowed in the work of Richard Bland, (168) and later colonial pamphleteers adopted it, including John Adams and James Wilson. (169) Six years after Dickinson published the Farmer essays, the First Continental Congress (1774) adopted the same distinction when it complained of taxes imposed, "for the express purpose of raising a Revenue." (170)

The identity between taxes and revenue-raising was fundamental to the American cause during the Revolution, exemplified by the famous slogan: "No taxation without representation." Note that the slogan said nothing of regulatory exactions or appropriations. This identity, qualified by a recognition that a tax could regulate behavior incidentally without losing its character as a tax, also survived the Revolution to influence the Constitution and the constitutional debates: It was the assumption behind motions by Pennsylvania's George Clymer and Virginia's George Mason at the Constitutional Convention, (171) and it surfaced again during the ratification debates. (172) Within the text of the Constitution, it is reflected in the framers' decision to separately itemize a "Tax" and a "Duty." (173) This was because a duty might be imposed either for revenue or for regulation: If it was a purely regulatory exaction, it did not qualify as a tax. (174) This usage influenced state constitutions as well. (175)

In sum, three background facts necessary for understanding early post-independence legislative practice in the early American states are as follows:

* Leading founders were generally familiar with parliamentary procedure;

* many wished to extend money-bill origination rules to America; and

* among "money bills," they considered revenue raisers (taxes) as a distinct, particularly important, subcategory.
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Title Annotation:Introduction through III. Founding-Era Legislative Practice: American Constitutions and Legislatures A. American Constitution-Drafting: Background Information, p. 629-669
Author:Natelson, Robert G.
Publication:Harvard Journal of Law & Public Policy
Date:Mar 22, 2015
Words:7445
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