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

B. How the American States Adopted New Rules

Twelve of the fourteen states (including Vermont) adopted constitutions between independence and the composition of the federal Constitution. (Connecticut and Rhode Island, whose royal charters were uncommonly democratic, were satisfied to modify them.) This Part III.B reviews those state constitutions ratified between 1776 and 1778. In the aggregate, they reflect two trends: (1) increasing popular control over money bills and (2) the division of the "money bill" concept into components.

The only state constitutions adopted between 1776 and 1778 that did not augment lower house control over money bills were those of New York and North Carolina. In North Carolina it seems to have been hardly necessary, since the new state senate was but a smaller image of its house of commons. (176) Of the remaining ten constitutions from that era, those of Georgia, Pennsylvania, and Vermont chose the most radical course: They abolished their upper houses altogether. (177) This helps explain why at the Constitutional Convention, Pennsylvania president Benjamin Franklin openly suggested unicameralism as an answer to origination issues. (178)

Virginia's 1776 constitution created a state senate, but prescribed that all bills, financial or not, originate in the house of delegates. The senate could amend most bills--but not "money-bills." (179) New Jersey adopted the putative British rule by banning upper house amendment of any "money bills." (180) The Massachusetts legislature's proposed 1778 constitution, disapproved by the voters, would have fit the same pattern. (181)

Four states limited upper house control over financial measures, but split the "money bill" concept into component parts. Those states were Delaware, Maryland, South Carolina, and New Hampshire.

Delaware was the home of John Dickinson when he was not working in Philadelphia. Its constitution was drafted and adopted in September 1776 by a convention chaired by Dickinson's friend (and, subsequently, Constitutional Convention colleague), George Read. The document provided:
   All Money-Bills for the Support of Government shall originate in
   the House of Assembly, and may be altered, amended or rejected
   by the Legislative Council. All other Bills and Ordinances
   may take Rise in the House of Assembly or Legislative
   Council, and may be altered, amended or rejected by either. (182)


As we have seen, "money-bills for the support of government" encompassed both taxes and spending, and that is how the Delaware legislature construed it. (183) The term did not en compass regulatory measures. It is unclear whether it encompassed fees-for-service such as tolls.

Two months later, Maryland (perhaps coincidentally, Dickinson's birthplace and early family home) adopted a refined origination clause worth reproducing at length:
   Art. X. That the house of delegates may originate all money
   bills....

   XI. That the senate may be at full and perfect liberty to exercise
   their judgment in passing laws, and that they may not be compelled
   by the house of delegates either to reject a money bill which the
   emergency of affairs may require, or to assent to some other act of
   legislation, in their conscience and judgment injurious to the
   public welfare; the house of delegates shall not on any occasion,
   or under any presence, annex to, or blend with a money bill, any
   matter, clause, or thing, not immediately relating to, and
   necessary for the imposing, assessing, levying, or applying the
   taxes or supplies, to be raised for the support of government, or
   the current expenses of the state; and to prevent altercation about
   such bills, it is declared, that no bill imposing duties or customs
   for the mere regulation of commerce, or inflicting fines for the
   reformation of morals, or to enforce the execution of the laws, by
   which an incidental revenue may arise, shall be accounted a money
   bill; but every bill assessing, levying, or applying taxes or
   supplies for the support of government, or the current expenses of
   the state, or appropriating money in the treasury, shall be deemed
   a money bill.

   XXII. That the senate may originate any other, except money bills,
   to which their assent or dissent only shall be given, and may
   receive any other bills from the house of delegates, and assent,
   dissent or propose amendments. (184)


Like the Delaware instrument, therefore, the Maryland constitution included taxes and spending in the origination rule, but excluded regulatory levies and was unclear on the subject of local fees-for-service. The Maryland constitution also responded to a history of fierce parliamentary disputes by outlawing the practice of "tacking."

South Carolina's 1776 and 1778 constitutions likewise forbade upper house amendment of "money bills for the support of government" (taxes and spending) but excluded from the ban regulatory impositions and, at least by prevailing interpretation, fees-for-services such as tolls. (185) On the other hand, the 1776 New Hampshire Constitution split the "money bill" concept another way: It required that "all bills, resolves, or votes for raising, levying and collecting money originate in the house of Representatives" --language that included taxes, fees-for-services such as tolls, and perhaps regulatory levies, but excluded spending. (186)

C. How the American Rules Continued to Evolve

As we have seen, reforms in the British Parliament during the 1780s began to sever the "money bill" concept into appropriations (which became much more detailed) and revenue. Similarly, we have seen that in America, revolutionary rhetoric and state constitution writers began to divide the "money bill" concept into its component parts.

State legislative journals reveal the same trend. (187) Before independence, American lawmakers, like their British counterparts, adopted "supply bills" consisting of mixed taxes and appropriations. After independence, mixed bills were rare: There were tax bills, appropriation bills (which might be called "supply bills"), (188) regulatory measures, and (less frequently) borrowing and local fee-for-service bills. (189) Each category was becoming the "single subject" it represents in most state legislatures today. But I have found no evidence of further subdivision: State legislatures continued to pass sweeping tax measures (190) and omnibus appropriation bills. (191)

A concomitant development was the refinement of state origination rules. As we shall see, this development was reflected in state constitutions adopted after 1778, but it began earlier. It took two forms: (1) Constricting the scope of the term "money bill" to fewer than all of its traditional components and (2) granting the upper chamber power to amend.

Refinement of state origination rules was encouraged by a series of inter-chamber disputes in states with such rules. In Britain, the Crown could resolve such disputes by dissolving or proroguing Parliament, but American chief executives had no comparable power. (192) Inter-chamber contention could, therefore, continue for some time.

The 1776 and 1778 South Carolina constitutions both confined the house origination requirement to taxes and appropriations, and prescribed that the upper house could not amend such measures. (193) The legislative council, as the 1776 constitution called the upper chamber, proved prickly about its dignity, (194) and notwithstanding the constitutional ban insisted on amending money bills. (195) The general assembly initially acquiesced, (196) but it soon began to reject all the legislative council's amendments--even those with which it agreed. The general assembly then restored each amendment it favored by amending the bills itself. (197)

Under the 1778 constitution, the senate, instead of amending directly, transmitted "schedules" (lists) of money-bill amendments to the house of representatives, expecting the House to consider them on third reading. (198) On September 2, 1779, the house of representatives issued a letter to the senate labeling the senate's procedure "unparliamentary" (improper). (199) There was a further exchange of tart notes over the next few days. (200) Meanwhile, the house struck all senate amendments to a borrowing ordinance on the ground that the measure was an "Ordinance ... for a supply for the support of Government," which the senate had no power to amend. (201)

The struggle continued in this vein for about a week, (202) with the senate continuing to act on tax bills simultaneously with the House rather than waiting for the house to complete its own procedures first. (203) On September 9, the house adopted a formal resolution that, while acknowledging it had previously acquiesced to some senate amendments, stated it would no longer do so. (204) That appeared to have sealed a victory for the house.

In February 1780, the house adopted, without senate amendment, a large tax increase. (205) The bill was then sent to the Senate. (206) Before the upper chamber could take action, however, British troops rescued South Carolina's taxpayers by invading the state and scattering the legislature. (207)

Although one might censure the conduct of the South Carolina legislative council and senate for trying to amend bills without authority to do so, those chambers were responding to a serious practical inconvenience. An advantage of bicameralism is that one chamber may identify technical problems in a bill that the other chamber has not noticed. The South Carolina origination rule prevented the upper house from offering even amendments of that nature through normal legislative channels.

It is understandable, therefore, why three of the four delegates representing South Carolina at the Constitutional Convention vocally opposed any federal origination rule. Charles C. Pinckney, (208) Pierce Butler, (209) and John Rutledge (210) all pointed out that their state's proscription of senate amendment had provoked severe legislative disputes. (211) These were disputes the South Carolina delegation had witnessed personally: Pinckney and Butler were each members of the legislature at the time, their younger colleague Charles Pinckney was serving as senate president, and Rutledge had been state president (governor).

In Virginia, similar conflict eroded the 1776 constitution's ban on senate amendment of money bills. (212) During 1777 and 1778, a battle raged between the senate and the house of delegates over whether an appropriation was a kind of money bill. (213) The appropriation in question was small: The house of delegates had passed a bill authorizing reimbursement for the expenses of one Thomas Johnson. The senate sought to amend it. The house claimed it was a money bill. The senate claimed it was not, arguing that money bills were limited to taxation and revenue measures.

Thomas Jefferson, then a member of the house, supported the position of his own chamber in a highly learned paper surveying British parliamentary precedent. (214) The senate then responded with a paper of its own. (215)

Although Jefferson won the intellectual debate, he lost the political debate. Immediately after a joint conference, the house of delegates responded with a device used by the South Carolina house of representatives: Rather than adopt Senate amendments, it drafted its own bill incorporating their substance. (216) Thereafter, however, the house waived its objections to senate amendment of appropriations, and the post-July 1778 legislative journals disclose senators frequently amending appropriations with the acquiescence of the delegates. (217) Only on revenue bills did the delegates remain firmly opposed to amendments. (218) Just as the troubles in South Carolina induced its Constitutional Convention delegates to oppose an origination rule, so did the disputes in Virginia induce James Madison to do likewise. (219)

The New Jersey Constitution prescribed the black letter version of the British rule: "[T]he Council [upper house]... shall not prepare or alter any Money Bill, which shall be the Privilege of the Assembly." (220) Accordingly, tax bills and appropriations ("bills for the support of government") were prepared and passed first by the assembly. (221) When approving such a bill, the council announced that it was doing so without amendments; (222) when rejecting a bill, the council rejected it as a whole. (223)

Yet New Jersey also failed to adhere firmly to the British origination rule. Not long after the state constitution was ratified, the council amended bills that proposed regulatory levies and single purpose appropriations. (224) Furthermore, in 1778 the assembly itself conceded an appropriation for supervising prisoners was not a money bill of the kind that foreclosed council amendment. (225) When the assembly finally objected to the Council amending appropriations in 1780, the upper house responded with a long list of precedents in which its power over such measures had gone unchallenged. (226) Apparently, its amendment prerogative was not questioned again.

The Maryland Constitution explicitly excluded regulatory measures from its definition of "money bills," and it specifically banned tacking. (227) This did not prevent conflict between the legislative chambers on financial issues. Although both chambers sometimes refrained from provoking each other, (228) on other occasions the temptation to fight prevailed. The house of delegates apparently engaged in tacking despite the state constitutional ban, provoking angry protests from the senate. (229) The senate further responded by amending money bills to delete tacked language. Sometimes the house of delegates simply denied that challenged material was a tack, (230) or reaffirmed its privilege against senate amendments (231) and refused to consider those amendments. (232) When the house objected to senate alterations, the senate retorted that the house's decision to tack was a waiver of its privilege. (233) The senate also interpreted its own privileges expansively. (234) At the Constitutional Convention, two Maryland delegates cited their state's experience as part of their arguments against U.S. House origination. (235)

The history in South Carolina, Virginia, New Jersey, and Maryland helps explain why several post-1778 state constitutions explicitly permitted the upper house to amend money bills. The 1780 Massachusetts charter provided that money bills were to originate in the state house of representatives, but that "the Senate may propose or concur with amendments, as on other bills." (236) When New Hampshire replaced its earlier constitution in 1784, it adopted the Massachusetts formula. (237) In 1790, Pennsylvania scrapped its unicameral system and adopted language tracking the new federal Constitution. (238)

D. The Scope of "Amendment" in American Practice

In America, as in Britain, the words "amend" and "amendment" ordinarily communicated a sense closely akin to "mend." Thus, the 1788 American edition of William Perry's Royal Standard English Dictionary defined "amend" as "to correct, to grow better," and it defined an amendment as "a change for the better." (239) In America, as in Britain, one could refer to faulty roads being "amended." (240)

To see whether American legislative practice tracked the dictionary definition of "amend," I examined legislative journals and similar records from the Continental and Confederation Congresses and from Vermont and the other thirteen states. (241) The records show that in American, as in British, practice, the word was used in a broader sense than that reflected by the dictionaries: "Amend" frequently meant merely to "alter." (242) In America, as in Britain, how the word was used did not hinge on the nature of the item being amended. Most amendments were small, (243) even if cumulatively the changes they wrought could become great. (244) A few individual amendments were very significant, as when the Virginia senate sought to replace the entire house preamble to the famous bill "for establishing religious freedom." (245) I found no amendments irrelevant to the subject matter of their original bills, assuming that revenue is considered a single subject. (246)

On the other hand, the American records, unlike those in Britain, do report complete substitutes being offered as amendments. Outside of Massachusetts, these appear in the records only rarely, but that might reflect the fact that legislative journals did not report the content of most amendments.

In a complete substitute, all the language in a bill or resolution after the enacting clause (or after some other clause very early in the text) was removed and replaced with new language. In the Virginia legislature, an amendment was offered on June 8, 1780, that would strike everything after the phrase "resolved that" and insert new material. (247) The amendment failed, but it was not held to be out of order. On December 19 of the same year, a Virginia house committee offered a resolution addressing the alleged financial peccadillos of one of Virginia's congressional delegates, Meriwether Smith. The resolution stated: "Resolved, that it is the opinion of this committee, That the said Meriwether Smith, is guilty of a misapplication of the public money, and that he ought to be forthwith recalled from Congress to answer for such misapplication." (248) An amendment was offered as follows:
   to strike out from the word "resolved," to the end of the
   resolution; and to insert "that the accounts, of Meriwether Smith,
   Esq. appear to be unsatisfactory, inasmuch as the sum of 8,0001.
   and upwards remains thereby unaccounted for. And the Speaker of
   this House is desired to write to the said Meriwether Smith, Esq.
   and to require of him a full and explicit settlement of his
   accounts with the Commonwealth, as a delegate of this State in
   Congress; and that the same be laid before the next session of
   Assembly." (249)


This amendment was approved.

In New Jersey, a substitute was offered during proceedings on whether the state would participate in the 1780 Philadelphia Price Convention, an interstate gathering targeted at the problem of wartime inflation. (250) One of the resolutions offered by the relevant committee was:
   That it is the Opinion of this Committee, that the Act for the
   Limitation of Prices, and to prevent the with-holding the
   Necessaries of Life from Sale, already agreed to be gone into
   at this Sitting, will be sufficient to enable the Purchasers for
   the Army to procure all the Flour which this State will be
   able to furnish. (251)


The journal tells us that:
   [o]n considering the second Paragraph, an Amendment was
   moved in these Words, "That it is the Opinion of this Committee,
   that the Laws now in Force in this State, and those
   now under Consideration of the Legislature, will be sufficient
   to enable the Purchasers for the Army to procure all
   the Flour which this State will be able to furnish ..." (252)


And that "the Question being put, Whether the House agree to the said Amendment? It passed in the Affirmative." (253)

In October 1781, the New Jersey assembly heavily amended a bill to supplement "trading with the enemy" rules by replacing its title and one of its sections. (254)

The North Carolina records also disclose occasional use of complete substitutes as amendments. In May 1777, the state house of commons sent to the senate a compensation proposal for the state treasurers as follows:
   This House have resolved that the Treasurers of this State be
   allowed after the rate of five hundred pounds each per annum
   during their continuance in office for the ensuing year
   in lieu and satisfaction of all services as Treasurers. (255)


The senate responded with complete substitute:
   This House have rec'd your message and resolve respecting
   the allowance to the Treasurers, and would propose the following
   resolve instead of that adopted by you.

   Resolved that the two Treasurers of this State hereafter chosen
   be allowed the sum of five hundred pounds each per
   annum for the ensuing year, in lieu and satisfaction of all
   services as Treasurers. (256)


Later the same year, the house offered amendments to a bill regulating state tobacco inspection that were so extensive that the changes bordered on qualifying as a complete substitute. (257)

The North Carolina ratifying convention followed the same practice of employing substitutes. In that state, ratification of the Constitution proceeded in two stages. The convention met initially in July and August of 1788, but adjourned without approving the instrument. (258) In November of the following year it reconvened. (259) The committee of the whole recommended this resolution:
   Whereas the General Convention which met in Philadelphia,
   in pursuance of a recommendation of Congress, did recommend
   to the citizens of the United States a constitution or
   form of government, in the following words, viz: [setting
   forth the Constitution in its entirety]

   Resolved, That this Convention, in behalf of the freemen, citizens
   and inhabitants of the State of North Carolina, do adopt
   and ratify, the said Constitution and form of government. (260)


In response, opponents moved to amend so that the "whole of the report from the word 'whereas' be struck out, and that the following amendments to the Constitution or plan of government for the United States, previous to the adoption, be inserted in place thereof [setting forth certain constitutional amendments]." (261) The convention addressed this motion, but defeated it by a vote of 187-82. The convention then proceeded to ratify the Constitution, subsequently recommending amendments as well. (262)

I have been able to find one substitute amendment in Pennsylvania. The original was a proposed resolution for the appointment of a committee "to bring in a bill directing the commissioners of the city and several counties in this state" to make out an assessment roll. The substitute directed the assessment roll to be prepared "by each county within this state" and included a few other technical changes. (263)

The amendment qualifier in the Origination Clause derived from the Massachusetts constitution, so practice in that commonwealth may be of particular interest. Only one volume of the Massachusetts legislative journals has been published for the period between the adoption of the state constitution in 1780 and the ratification of the U.S. Constitution. (264) It does reveal scrupulous adherence to the rule that money bills "originate" in the lower chamber: (265) Inter-house committees could cooperate in drafting, (266) but a money bill was introduced first in the lower house. Only if approved by that body was the bill "sent up" to the senate. (267) The Massachusetts senate might amend it and "send it down" to the house. (268) Heavily amended bills apparently were routinely replaced with substitutes. In the hHouse journal the phrase repeatedly recurs, "Read and concurred, as taken into a new draft." (269)

I have not been able to identify substitute amendments in the records of the Continental and Confederation Congresses, but the power to amend seems to have been very broad. When discussing proposed instructions to diplomats, for example, one member (Meriwether Smith, in fact) moved "to strike out all that follows the words, 'expectations of Congress,'" thereby gutting the instructions. (270) The amendment was defeated, but apparently deemed in order.

On the other hand, every complete substitute I found addressed the same topic addressed by the original bill--and, indeed, addressed it quite closely. The practice regarding substitutes also reflected the American tendency to treat the components of the traditional "money bill" concept as separate subjects. Thus, I found no substitutes that attempted to add regulatory or appropriations measures onto revenue bills, or otherwise mixed any of the accepted categories.

As is true of the British records, the early American documents are incomplete, so it is theoretically possible that hand searches of hard copy legislative folders in state archives would uncover evidence that some legislatures more closely limited the scope of permissible amendments, or applied different definitions of "amendment" to different categories of measures, or permitted substitutes unrelated to their originals. The evidence adduced so far, however, certainly places the burden on those who believe such variations existed to produce samples of them.

There is further evidence that the word "amendment" was assumed to encompass only alterations germane to the subject of the underlying original bill. This evidence consists of rules adopted by several legislative bodies. For example, in 1781 the New Hampshire house of representatives adopted a rule that limited motions to those to amend, to postpone, or to commit the matter before the house. (271) A necessary assumption behind the rule was that was that an "amendment" had to be relevant to its underlying motion; otherwise the provision would have been nugatory. The New Hampshire rule was reaffirmed in 1784, (272) 1785, (273) and in slightly modified form, in 1786, 1787, and 1788. (274) In 1789, it was tightened to provide that "when a motion is regularly before the House, no new one shall be received unless to postpone commit or amend it--And no new motion shall be admitted under colour of amendment as a Substitute of the motion under debate." (275)

The use of the phrase "under colour of" is revealing. While the phrase can be consistent with good faith in modern usage, (276) this was not true during the Founding Era. In the eighteenth century, the phrase carried strong associations of pretext, concealment, and falsehood. (277) A "new motion ... under colour of amendment as a Substitute" necessarily communicated the view that a substitute-by-way-of-amendment unrelated to the original bill was not a true amendment: It was a pretext--a lie.

The same year, the New Hampshire house of representatives adopted its initial limit on the scope of motions, the Confederation Congress provided, "No new motion or proposition shall be admitted under colour of amendment as a substitute for the question or proposition under debate until it is postponed or disagreed to." (278) Similarly, in 1784 the unicameral Pennsylvania legislature adopted the following rule:
   When any motion is regularly before the House, the debate
   and decision thereon, shall not be interrupted by the admission
   of any other motion, except it be for the previous question,
   or for amending, postponing, or committing the original
   motion or subject in debate; nor shall any new proposition or
   motion be admitted by way of amendment, or substitute for
   such original motion while the same is depending. (279)


The following year, however, the rule was altered to read only:
   No business, regularly before the House, shall be interrupted,
   but by motion for the previous question, postponement,
   commitment, or amendment. (280)


The reason for the change is not clear. Although the records divulge a substitute amendment that year, it was germane to the original motion. Perhaps the limitation of interruptions to "previous question, postponement, commitment, or amendment" was deemed sufficient, since the word "amendment" implied no alteration in the business before the house.

In 1789, the second session of the North Carolina ratifying convention adopted a standard similar to the initial New Hampshire rule, (281) and the North Carolina senate adhered to it the following year. (282) Also, in 1789, when the new federal House of Representatives met, it installed the Confederation Congress rule to govern its own proceedings. (283)

These regulations may have been a reaction to attempted abuse of the amendment process, although I have not been able to find such abuse in the records. Perhaps lost or unavailable records show efforts to introduce new legislation under the guise of amendment. The rules demonstrate, at least, that Founding-Era lawmakers did not consider unrelated substitutes to be genuine amendments. The Americans, like the British, drew a line between an amendment and an unrelated motion. (284)

E. Summary of American Practice

The drafters of most of the initial state constitutions believed that "democratic" lower houses should enjoy more power over financial matters than "aristocratic" upper houses. Those drafters experimented with ways of putting this belief into action. Three states--Georgia, Pennsylvania, and Vermont--adopted constitutions that provided for no upper chambers at all. The Virginia and New Jersey constitutions required that "money bills" originate in the lower house and be accepted or rejected by the upper with no power of amendment. South Carolina applied the same rule to "money bills for the support of government." New Hampshire, Delaware, and Maryland adopted less rigorous origination rules.

Experience led to modifications. The Virginia legislature informally excluded appropriations from the definition of "money bills," thereby permitting senate amendment. The 1780 Massachusetts Constitution permitted senate amendment of all money bills, as did the second New Hampshire and Pennsylvania constitutions ratified in 1784 and 1790, respectively.

In post-independence America, the traditional components of "money bills"--revenue/taxes, appropriations, regulatory exactions, and local fee-for-service such as tolls--generally were treated as different subjects addressed by separate bills. The category of revenue and taxes was placed under the most direct popular control. Even states that abandoned house origination for some money bills retained it for revenue bills. In most states, therefore, tax measures had to be first introduced in, and adopted by, the lower house before being transmitted to the state senate.

An amendment apparently had to be germane to its underlying bill. Although American lawmakers, unlike their British counterparts, occasionally amended by complete substitute, amendments by substitute also addressed the same subject matter as the underlying bill. (285) Several legislative bodies adopted rules that implicitly reflected the germaneness principle.

IV. WHAT THE CONSTITUTIONAL DEBATES TELL US ABOUT THE REASONS FOR HOUSE ORIGINATION AND THEIR SIGNIFICANCE

A. The Policies Behind House Origination

Part I explained that debate over the Origination Clause was largely ancillary to the issue of representation in Congress, and that during the ratification debates, whether a participant characterized House origination and the amendment qualifier as important usually was dictated by whether he was a Federalist or Anti-Federalist, and whether he was addressing a large-state audience or a small-state audience. This is the sort of disagreement that critics of originalist methods cite when they argue that it is impractical to recover the Founders' understanding of constitutional phrases. (286)

Very often, however, the records of such disagreements actually clarify a provision's meaning and purpose. One reason is that the debate may have been based on shared assumptions. (287) A good illustration is the debate over the Origination Clause, for it proceeded from a common understanding of its meaning. Participants knew what it meant for a bill to "originate" in the House of Representatives. They knew that "Bills for raising Revenue" were tax bills. They knew that there had been good and bad experiences from different origination rules, and that any particular version would operate differently in America than in Britain. The fact that opposing sides could creditably characterize the amendment power as both broad and limited (288) suggests that the public understood that there was truth in both characterizations.

There was also general agreement about the policies underlying House origination. The principal dispute was over the weight of those policies and the extent to which the Clause furthered them. Because advocates of House origination ultimately prevailed, however, we can legitimately infer that the ratifiers found the advocates' case more persuasive than opponents'. In other words, the ratifiers agreed with the policies behind the Clause, believed they were important, and believed the Clause promoted them.

We next turn to the issues of what the policies underlying the Clause were and how central they were to the constitutional scheme. We begin again at the Constitutional Convention. The two delegates most responsible for assuring that the Clause became part of the Constitution were Edmund Randolph of Virginia and John Dickinson of Delaware.

Although less known today than they should be, both of these men were central actors in the constitutional drama. While still in his early 30s, Randolph had been elected governor of the nation's largest state. He was the first substantive speaker at the convention when, on May 29, 1787, he introduced the Virginia Plan. (289) In July, he was elected to the Committee of Detail, a stellar group chosen to prepare the first draft of the Constitution. The committee assigned Randolph the task of making an initial outline for that draft. The outline provided that "powers belonging peculiarly to the representatives are those concerning money-bills," and assigned other powers to "the senate peculiarly." (290) After the convention had defeated House origination several times, it was Randolph who raised the subject yet again, (291) and it was he who suggested limiting House origination to revenue bills. (292)

Dickinson was a gifted statesman whom some have compared, at least politically, to Edmund Burke. (293) He was about twenty years older than Randolph, and had served as chief executive of two states--Pennsylvania and Delaware. (294) Like Randolph, he believed in a strong upper house. He argued for tying Senators to territorial units (the states) because this might offer some of the advantages provided by the British House of Lords. (295) His initial sketch of the upper house contemplated senators at least thirty years old, apportioned equally by states, elected by state legislatures, and serving staggered seven year terms. (296) In other words, Dickinson's initial vision was strikingly similar to the plan that the convention eventually adopted. He also believed that this upper chamber should be checked by granting the lower house the exclusive prerogative of originating money bills.

On August 13, Madison took the floor to deliver technical and closely-reasoned arguments against lower house origination and against the Randolph compromise. (297) During his discourse Madison made the tactical error of belittling in Dickinson's presence the latter's celebrated pre-Revolutionary distinction between revenue and tax bills and other financial measures. (298) This triggered the response that was Dickinson's most memorable speech at the Convention. Just as Dickinson had preceded Burke in defending the American cause, now Dickinson anticipated Burke by underscoring the wisdom often embedded in tradition:
   Experience must be our only guide. Reason may mislead us. It was
   not Reason that discovered the singular & admirable mechanism of
   the English Constitution. It was not Reason that discovered or ever
   could have discovered the odd & in the eye of those who are
   governed by reason, the absurd mode of trial by Jury. Accidents
   probably produced these discoveries, and experience has given a
   sanction to them. This is then our guide. And has not experience
   verified the utility of restraining money bills to the immediate
   representatives of the people^] Whence the effect may have
   proceeded he could not say; whether from the respect with which
   this privilege inspired the other branches of Govt, to the H. of
   Commons, or from the turn of thinking it gave to the people at
   large with regard to their rights, but the effect was visible &
   could not be doubted[.] Shall we oppose to this long experience,
   the short experience of 11 years which we had ourselves, on this
   subjectf?]--As to disputes, they could not be avoided any way....
   [A]ll the prejudices of the people would be offended by refusing
   this exclusive privilege to the H. of Repress, and these prejudices
   shd. never be disregarded by us when no essential purpose was to be
   served. When this plan goes forth, it will be attacked by the
   popular leaders. Aristocracy will be the watchword; the Shibboleth
   among its adversaries. Eight States have inserted in their
   Constitutions the exclusive right of originating money bills in
   favor of the popular branch of the Legislature. Most of them
   however allowed the other branch to amend. This he thought would be
   proper for us to do. (299)


When Dickinson had finished, Randolph rose again to reinforce his colleague's arguments. (300)

Dickinson and Randolph lost the immediately ensuing vote, but they won the war. One key to their success lay in the amendment qualifier. It mollified fears of legislative disputes (301) of the kind that had flared in Britain, Virginia, Maryland, and South Carolina. (302)

Another key to their success was restricting the Clause to "Bills for raising Revenue." Despite Madison's doubts, this categorization was well defined and easily defended. Recent history, both in Britain and America, had formed in the public mind a distinction between revenue, regulation, and appropriation (303)--a distinction also reflected in other parts of the Constitution. (304) Recent history in America, moreover, had created a perceived identity between taxes and revenue and a perception that this was a more dangerous power than the others and should be subject to greater check and popular control. The latter perception was very much in evidence during the ratification debates: The Constitution's grant to Congress of authority to tax was far more controversial than any of its regulatory grants. (305)

Several other factors contributed to Dickinson's and Randolph's success. Randolph pointed out that lower house initiation of revenue bills would check the appetite for war. (306) Dickinson, as noted earlier, had observed that adding lower-house origination to the Constitution would render the instrument more consistent with Anglo-American custom and therefore more acceptable and saleable to the American people. (307) Some of their success also derived from their reminders about British experience: Lower-house origination had enabled the British people to check the Crown and the Lords and to fashion the freest and most successful major nation in the world.

Dickinson and Randolph predicted that claims of "aristocracy" would be launched against the Constitution. Perhaps their colleagues recognized that they were correct. In any event, their prophecy was fully borne out. Warnings of aristocracy turned out to be central to the Anti-Federalist attack. (308) The Origination Clause proved a powerful defensive weapon. (309)

On the merits, these concerns about aristocracy were entirely legitimate. Anyone reading the Constitution could see that the Senate would be a very different and far more "aristocratic" branch than the House. (310) Senators would be selected from a group required to meet stiffer age and citizenship qualifications than Representatives. (311) At a time of heavy immigration and shorter life expectancy, the pool of potential Senators was significantly smaller than the pool of potential Representatives. The allocation of Senators would be less reflective of population than the House. (312) Although Representatives would be directly elected for two-year terms, Senators would be indirectly elected for terms three times as long. (313) In all but the smallest states, Senate districts would be much larger than House districts, thereby making it difficult for local or minority interests to be heard in the Senate. The Senate's intimate size would render it more susceptible to corruption--both in terms of illegal conduct and placing special interest over the general interest. (314)

Higher qualifications, indirect election, longer terms, and larger districts would generate Senators with higher social status, better education, and greater wealth than Representatives. Senators would be more tied to the national capital. They might well have less knowledge of the people's needs and abilities, (315) and would share less "sympathy" with them. (316) The Senate would thereby be much less "representative" of the people than would the House. But had not the Revolution been fought under the slogan, "No taxation without representation"?

There was more. The Constitution granted this unrepresentative and exclusive Senate crucial prerogatives denied to the House--most importantly a share in the executive power though participation in executive and judicial appointments and treaties. (317)

Now consider the practical implications of all this: Senators' long terms and other prerogatives would enable them to advance their preferred financial policies over and over again, patiently suffering rejection until, by chance or otherwise, they obtained a compliant House. (318) Even if sentiment in the House remained unaltered, Senators' greater experience, political acumen, and personal connections might enable them to overwhelm the simpler people in the other chamber. As George Mason observed, "An aristocratic body, like the screw in mechanics, working its way by slow degrees, and holding fast whatever it gains, should ever be suspected of an encroaching tendency--the purse strings should never be put into its hands." (319)

Once the balance was tipped in favor of the Senate, it was likely to tip further, especially if, as many believed, the Senate secured the President as an ally. Eventually, the Senate might assume the leading role in government, with the House reduced to the insignificance of the Parliament of Paris, a mere registry for laws really created elsewhere. (320) Nor would this be a benign preeminence: Because the Senate would be malapportioned and relatively remote from the people, it would have little "sympathy" with them or knowledge about them. Over time, its measures would become more ill-tuned to the real world and more oppressive, and its spending more extravagant. (321)

For such reasons, men like Mason, Dickinson, and Randolph believed that the Senate, while a necessary check on the excesses of democracy, really did pose a risk of aristocracy or oligarchy. House origination was a needed corrective. (322) House origination was a structural device designed to protect freedom, promote democratic values, and ensure more knowledgeable government.

B. Significance of the Policies Behind House Origination

It is clear, therefore, that the policies behind lower-house origination were not of marginal concern. They served some of the core purposes recited in the Preamble. House origination would "promote the general Welfare" through a more informed and less warlike government. (323) It would "secure the Blessings of Liberty" by promoting democracy and checking aristocracy. (324) It also would increase the chances that the public would ratify the Constitution and continue to find it congenial thereafter. For a Constitution must suit the spirit of a people, and, as Dickinson observed, "all the prejudices" (325) of Americans would be offended by the lack of House origination.

V. WHAT THE CONSTITUTIONAL DEBATES TELL US ABOUT THE SCOPE OF AN "AMENDMENT"

A. The Policies Served By the Amendment Qualifier

Opponents raised several arguments against the Origination Clause--and thus for greater power in the Senate--that did not prove strong enough to omit or alter the Clause. Among these arguments were:

* The Senate would be less remote than the House of Lords. (326)

* The greater skills of Senators would be appropriate for the exacting task of drafting financial bills. (327)

* The Senate might be less "extravagant" (wandering, immoderate) (328) than the House. (329)

* Smaller chambers are better for deliberation and larger ones better for deciding on pre-set proposals. (330)

* Experience "proved that [House origination] had no effect," (331) and therefore the House's veto power on Senate legislation would be sufficient to preserve popular liberty. (332)

* If both chambers could initiate, they would offer competing plans and the people could choose between them. (333)

* Good men would not run for the Senate unless they enjoyed substantial power. (334)

* Possibly the least appealing argument of all--advanced by Gouverneur Morris: "[T]here never was, nor ever will be a civilized Society without an Aristocracy. [My] endeavor was to keep it as much as possible from doing mischief...." (335)

There were two anti-origination arguments that proved more compelling because they were backed by recent experience. The amendment qualifier responded to each of them.

The first was that the origination power would encourage the House to resort to "tacking" and other forms of extortion to overpower the Senate. (336) This contention was supported by pre-1702 history in Britain and by more recent history in Maryland and other states. Events in Maryland had demonstrated that a mere constitutional ban on tacking was not sufficient. (337) The amendment qualifier provided a more dynamic way to prevent tacking. (338) It did so by enabling the Senate to cut non-financial terms from revenue bills--that is, to limit bills to the single broad subject of revenue. (339) Of course, the same result could have been achieved by granting the Senate plenary power over revenue bills. But limiting the Senate's power to amending also prevented the Senate from adding extraneous matters and attempting to force them on the House. In other words, it prevented "reverse tacking."

The second compelling argument against origination was that the traditional origination rules created a practical inconvenience. Members of the upper house had to employ extra-parliamentary channels to suggest even uncontroversial, technical amendments. (340) This argument was supported by history in Britain, Maryland, Virginia, and South Carolina. (341) The amendment qualifier responded to the inconvenience by allowing the Senate to offer its proposals through normal legislative channels.

B. How Broad Was the Amendment Qualifier?

As noted in Part I.B, during the ratification debates the Federalists, especially in large states, emphasized the importance of House origination and depicted the amendment qualifier as consistent with it. These representations certainly implied that "Amendment" was a limited concept; otherwise House origination would not have been important.

Large state Anti-Federalists argued that the amendment qualifier was nearly tantamount to permitting the Senate to originate, but the way they phrased their arguments also implied that "Amendment" was a limited concept. Even their most extravagant claims about the breadth of possible amendments cited only amendments that dealt with the same subject as their underlying bills. Illustrative is the assertion by Elbridge Gerry of Massachusetts that "[I]f the Senate should have the power of proposing amendments, they may propose that a bill originated by the House to raise one thousand should be increased to one hundred thousand pounds." (342) In Gerry's example, the underlying bill addressed only revenue, and Gerry's hypothetical amendment did so as well.

Similarly, at the Virginia ratifying convention, Anti-Federalist William Grayson, who had served both in his state legislature and as acting president of Congress, (343) contended that "[t]he Senate could strike out every word of the bill, except the word whereas, or any other introductory word, and might substitute new words of their own." (344) Grayson was no doubt thinking of amendments-by-way-of-substitution in the Virginia legislature. (345) In both recorded cases, however, the substitute had addressed the same subject matter as the initial motion. (346)

Treating the amendment power as broad but limited to accepted subject matter categories may be the only way to reconcile, at least partially, three of Madison's contemporaneous comments about the amendment qualification. In a letter to George Washington written about a month after the federal convention, Madison described the Senate's amendment power as "paltry." (347) This suggests a narrow scope for amendment. Yet at the Virginia ratifying convention the following year, he defended the amendment qualification against Grayson by asserting that "[t]he honorable member says that there is no difference between the right of originating bills and proposing amendments. There is some difference, though not considerable." (348) This suggests a broad scope for amendment.

Yet these two statements may be ascribed merely to Madison's peering through opposite ends of the same telescope. One of his comments at the federal convention clarifies his thinking:
   The words amend or alter, form an equal source of doubt &
   altercation. When an obnoxious paragraph shall be sent down from
   the Senate to the House of Reps it will be called an origination
   under the name of an amendment. (349) The Senate may actually couch
   extraneous matter under that name. In these cases, the question
   will turn on the degree of connection between the matter & object
   of the bill and the (alteration or) amendment offered to it. Can
   there be a more fruitful source of dispute, or a kind of dispute
   more difficult to be settled? (350)


In other words, an amending chamber, like an originating chamber, could propose very broad alterations in the status quo, but an amending chamber's freedom was confined by the "matter & object" of the underlying bill. A valid (as opposed to pretextual) amendment could not be "extraneous" because a "degree of connection" was necessary. The Senate's prerogative to amend included broad authority over revenue bills, but that authority was still narrower in scope than that enjoyed by the House.

VI. CONCLUSION: THE ORIGINATION CLAUSE AND SOME IMPLICATIONS FOR THE PPACA

Although some framers were skeptical about the Origination Clause, they eventually decided to include it the Constitution. They did so because the Clause assisted the case for ratification and because, as pointed out in Part IV.C, it genuinely served core constitutional goals. The Clause promoted liberty and good government by ensuring that taxation was connected to representation and to popular desires. It promoted democratic values by checking an unrepresentative, exclusive, and powerful Senate. Any provision serving policies as central as these certainly deserves protection from efforts to weaken or gut it. That is one reason we must understand exactly what the Clause does, and does not, mean.

A "Bill[] for raising Revenue" as the Constitution employs the phrase is a tax. A "tax" is an exaction with no constitutional basis other than raising revenue--that is, with no enumerated power to support it other than the Taxation Clause. (351) The rule that a tax bill must "originate in the House of Representatives" means that it must be passed by the House before the Senate may act on it. Levies that can be justified independently under Congress's Commerce Power, (352) for example, are not "taxes" as the founders understood the term, and therefore not subject to the Origination Clause. The historical record tells us that the origination principle applies to all changes in tax laws, whether revenue positive, revenue negative, or revenue neutral. (353)

Once a revenue measure passes the House, it is transmitted to the Senate. The Senate may pass it unaltered, defeat it, ignore it, or offer "Amendments." Such an "Amendment[]" may take the form of a partial change or of a complete substitute, but to qualify as an "Amendment" it must address the same subject as the original bill. For constitutional purposes, all taxes are within the same subject. Thus, if the House passes a pure tax bill, the Senate may replace its content entirely with taxes of its own. Regulations and appropriations are subjects different from taxes, however. If the Senate alters a pure tax bill by adding regulations or appropriations, that alteration is not germane to the underlying bill. It thereby exceeds the scope of "Amendment" as the Origination Clause uses the word.

Founding-Era history shows why these rules make sense. Experience in both Britain and America had discredited the practice of "tacking"--that is, the practice by which one legislative chamber attempted to coerce the other chamber by adding non-revenue measures to revenue bills. One reason the Constitution granted the Senate the power to alter tax bills was to enable it to protect itself against House tacking. Similarly, the Constitution's limitation on the Senate's alteration power to germane "Amendments" enabled the House to protect itself against tacking by the Senate.

Application of these rules to the legislative history of the PPACA demonstrates their effect. H.R. 3590 initially was introduced in the House of Representatives. It was a six-page measure designed, according to its title, "To amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes." (354) The "other purpose^" was to accelerate temporarily estimated tax payments by certain corporations, apparently to generate revenue to offset the money lost due to the expanded credit. (355)

H.R. 3590 was a "Bill for raising Revenue" as the Constitution uses that term. It reduced taxes for certain taxpayers and effectively raised them for others. Even if it had done only one or the other, it still would have been a "Bill for raising Revenue." As such, it was properly introduced first in the House.

The House passed H.R. 3590 and sent it to the Senate. That chamber altered the bill completely. The Senate (1) struck all matter after the enacting clause, (2) inserted the 2076-page PPACA, and (3) replaced the bill's title. This substitute included the penalty (tax) challenged in federal court as exceeding the Senate's amendment power. (356) The substitute also contained various revenue-generating taxes, explicitly denominated as such. (357)

Adding these taxes was within the Senate's power to amend, because all taxes comprise a single subject. Founding-Era courts almost certainly would have upheld an amendment replacing some taxes with others.

To be sure, the PPACA's penalty for failing to purchase qualifying insurance was not really a "tax" as the Constitution uses that term. (358) But for our purposes, it is a tax because the Supreme Court has so ruled. (359) Only because the Supreme Court held the penalty to be a tax was it a valid Senate "Amendment" to a "Bill for raising Revenue." (360)

The Senate's substitute H.R. 3590 also added non-revenue provisions. These included regulations on insurance companies, employers, and health care providers, (361) as well as various appropriations. (362) These, however, are subjects distinct from revenue. Adding them exceeded the Senate's power to amend.

The challengers in the PPACA Origination Clause litigation, therefore, have been attacking the wrong part of the law. Under modern Commerce Power and Spending Clause jurisprudence, (363) the regulatory and appropriation portions of the PPACA would have been within the power of the Senate to originate. But they were not germane to H.R. 3590 as it emerged from the House, and thus not within the scope of the Senate's power to amend. Whether the PPACA's valid taxes (including the penalty for not purchasing insurance) can be severed from the invalid portions of the PPACA is another issue entirely.

(1.) Bibliographical Note: This footnote collects those sources cited more than once, including prior published research by the author.

Convention Proceedings

The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., 2d ed. 1836) [hereinafter Elliot's Debates]; The Records of the Federal Convention of 1787 (Max Farrand ed., 1937) [hereinafter FARRAND'S RECORDS].

Dictionaries (all unpaginated)

John Ash, The New and Complete Dictionary of the English Language (1775) [hereinafter ASH]; N. BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (25th ed. 1783) [hereinafter BAILEY]; FREDERICK BARLOW, The COMPLETE English Dictionary (1772-73) [hereinafter Barlow]; Alexander Donaldson, An Universal Dictionary of the English Language (1763) [hereinafter Donaldson]; Thomas Dyche & William Pardon, A New General English Dictionary (16th ed. 1777) [hereinafter DYCHE & PARDON]; SAMUEL JOHNSON, A Dictionary of the English Language (8th ed. 1786) [hereinafter Johnson]; William Kenrick, A New Dictionary of the English Language (1773) [hereinafter Kenrick]; William Perry, The Royal Standard English Dictionary (1st ed. 1788) [hereinafter PERRY]; THOMAS SHERIDAN, A COMPLETE DICTIONARY of the English Language (3d ed. 1789) [hereinafter Sheridan].

Legislative and other Governmental Publications

British: WILLIAM COBBETT, Parl. HIST. ENG. (vols. 13-28, 1803-16) [hereinafter COBBED]; Journals of the house of Commons [hereinafter H.C. Jour.]; journals of the House of Lords [hereinafter H.L. Jour.]; The Parliamentary Register; or History of the Proceedings and Debates of the House of Commons [hereinafter Parliamentary Register] (mult. vols.).

Federal: JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789 (1904-37) [hereinafter J. Conte Cong.].

Connecticut: 1-5 The Public Records of the State of Connecticut (Charles J. Hoadly & Leonard Woods Labaree eds. 1894-1943) [hereinafter CONNECTICUT RECORDS].

Massachusetts: A Journal of the Honorable House of Representatives of the Commonwealth of Massachusetts. Begun and field at boston in the County of Suffolk, on Wednesday the Twenty-Sixth Day of May, Anno Domini, 1784 [hereinafter Mass. h.r. jour.].

Maryland: The Senate and House of Delegates Journals are dted Md. H.D. JOUR, and MD. SEN. JOUR. Each session is free standing with its own pagination.

New Hampshire: EARLY STATE PAPERS OF NEW HAMPSHIRE (Albert Stillman Batchellor ed., 1891-92) [hereinafter N.H. PAPERS],

New Jersey: Votes and Proceedings of the General Assembly of the State of NEW-JERSEY [hereinafter N.J. PROCEEDINGS].

New York VOTES AND PROCEEDINGS OF THE ASSEMBLY OF THE STATE OF NEW YORK, from 1780 through 1790 [hereinafter N.Y. ASSEM. JOUR.] & JOURNAL OF THE Senate of the State OF New York [hereinafter N.Y. Sen. Jour.], both available at the Gale Database, Eighteenth Century Collections Online.

North Carolina: THE STATE RECORDS OF NORTH CAROLINA (Walker Clark ed., 18951905) [hereinafter N.C. RECORDS].

Rhode Island: 8-10 Records of the State of Rhode Island and Providence Plantations IN NEW England (John Russell Bartlett ed., 1863-65) [hereinafter R.I. RECORDS].

South Carolina: Journals of the General Assembly and House of Representatives 1776-1780 (William Edwin Hemphill, Wylma Anne Wates & R. Nicholas Olsberg eds, 1970) [hereinafter S.C. H.R. JOUR. (1776-80); JOURNAL OF THE HOUSE OF REPRESENTATIVES OF SOUTH Carolina, Jan. 8, 1782-Feb. 26, 1782 (A.S. Salley, Jr. ed., 1916) [hereinafter S.C. H.R. JOUR. (1782)].

Pennsylvania: Minutes of the General Assembly of the Commonwealth of Pennsylvania (1784-89) [hereinafter PA. GEN. ASSEM. MIN.].

Virginia: JOURNAL OF THE HOUSE OF DELEGATES OF THE COMMONWEALTH OF VIRGINIA (1827) [hereinafter Va. H.D. Jour.]; JOURNAL OF THE Senate OF THE Commonwealth OF VIRGINIA (1785-90) (Thomas W. White 1827-28) [hereinafter Va. Sen. JOUR.].

Other Works

Roger Acherley, The Brittanic Constitution (1759) [hereinafter Acherley]. Jean-Louis De Lolme, The Constitution of England (David Lieberman ed., 2007) (1771) [hereinafter De Lolme].

John Dickinson, Letters from a Farmer in Pennsylvania, reprinted in Empire AND NATION 1 (Forrest McDonald ed., 2d ed. 1999) [hereinafter DICKINSON].

The documentary History of the Ratification of the Constitution (Merrill Jensen, John P. Kaminski, & Gaspare J. Saladino eds., 1976-2012) [hereinafter DOCUMENTARY HISTORY].

Paul Einzig, The Control of the Purse: Progress and Decline of Parliaments Financial Control (1959) [hereinafter Einzig].

Sydney George Fisher, The Evolution of the Constitution of the United States (1897) [hereinafter FISHER].

Alexander Hamilton, James Madison & John Jay, The Federalist (George W. Cary & James McClellan eds., 2001) [hereinafter THE FEDERALIST].

John Hatsell, Precedents of Proceedings in the House of Commons (2d ed, 1785) (3 vols.) [hereinafter HATSELL],

David W. Hayton, Introduction, The History of Parliament: the house of COMMONS 1690-1715 (D. Hayton, E. Cruickshanks & S. Handley eds., 2002), available at http://www.histparl.ac.uk/volume/1690-1715/survey/business-house [http://perma.cc/ 8E7N-J4NM] [hereinafter HAYTON].

Thomas Jefferson, A Manual of Parliamentary Practice for the Use of the Senate of the United States (1801) [hereinafter Jefferson's Manual].

Ronald J. Krotoszynski, Jr., Reconsidering the Nondelegation Doctrine: Universal Service, The Power to Tax, and the Ratification Doctrine, 80 IND. L.J. 239 (2005) [hereinafter Krotoszynski, Reconsidering],

Rebecca M. Kysar, The "Shell Bill" Game: Avoidance and the Origination Clause, 91 WASH. U. L. Rev. 659 (2014) [hereinafter Kysar, Shell Bill],

Paul Mason, Mason's Manual of Legislative Procedure (2010) [hereinafter Mason's Manual].

Robert G. Natelson, The Constitution and the Public Trust, 52 BUFF. L. Rev. 1077 (2004) [hereinafter Natelson, Trust],

Robert G. Natelson, The Constitutional Contributions of John Dickinson, 108 PENN. St. L. Rev. 115 (2003) [hereinafter Natelson, Dickinson],

Robert G. Natelson, The Founders' Hermeneutic: The Real Original Understanding of Original Intent, 68 OHIO St. L.J. 1239 (2007) [hereinafter Natelson, Founders' Hermeneutic],

Robert G. Natelson, The Original Constitution: What It Actually Said and Meant (2d ed. 2011) [hereinafter NATELSON, ORIGINAL CONSTITUTION].

Robert G. Natelson, The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. KAN. L. REV. 1 (2003) [hereinafter Natelson, General Welfare],

Supplement to Max Farrand's The Records of the Federal Convention of 1787 (James H. Hutson ed., 1987) [hereinafter HUTSON, SUPPLEMENT],

Priscilla H.M. Zotti & Nicholas M. Schmitz, The Origimtion Clause: Meaning, Precedent, and Theory from the 12th to the 21st Century, 3 Br. J. Am. LEG. STUDIES 71 (2014) [hereinafter Zotti & Schmitz].

(2.) See generally Natelson, Founders' Hermeneutic, supra note 1.

(3.) U.S. Const, art. I, [section] 7.

(4.) Id.

(5.) United States v. Munoz-Flores, 495 U.S. 385, 397-401 (1990).

(6.) Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2600 (2012).

(7.) Patient Protection and Affordable Care Act, Pub. L. No. 111-148, [section] 1501(b), 124 Stat. 119, 244 (2010).

(8.) Cf. Thomas L. Jipping, Comment, TEFRA and the Origination Clause: Taking the Oath Seriously, 35 Buff. L. Rev. 633 (1986). Jipping criticized a similar substitution procedure in the passage of the Tax Equity and Fiscal Responsibility Act of 1982, arguing that the Origination Clause was violated because the Senate substituted a 400+ page tax increase for the text of a 25 page House-passed bill that made only minor, technical changes in the tax code. Id. at 686-87.

As pointed out below, however, even small tax bills--including those that cut taxes--qualify as "Bills for the raising of Revenue" as the Constitution uses the term. See infra Part II.B.l (defining money bills to include denial of revenue and reporting Common rejection as a breach of privilege).

The controversial substitution of TEFRA (400 pages for 25) was dwarfed by the substitution of the PPACA (2076 pages for 6).

(9.) There are several cases based on this theory making their way through the federal courts, none of which have been successful thus far. See Association of American Physicians and Surgeons v. Sebelius, 746 F.3d 468, 470-71 (D.C. Cir. 2014) (holding that claim was waived); Hotze v. Sebelius, 991 F. Supp. 2d 864, 882, 885 (S.D. Tex. 2014) (dismissing claim on the merits); Sissel v. U.S. Dept, of Health and Human Servs., 951 F. Supp. 2d 159, 169 (D.D.C. 2013) (same), affirmed, 760 F.3d 1, 10 (D.C. Cir. 2014).

(10.) Def.'s Reply Mem. in Supp. of Mot. to Dismiss at 8, Sissel, 951 F. Supp. 2d 159 (No. l:10-cv-01263 (BAH)).

(11.) The most thorough treatment of the original meaning is probably Zotti & Schmitz, supra note 1. Other treatments are, in reverse chronological order, as follows: Kysar, Shell Bill, supra note 1; Rebecca M. Kysar, On the Constitutionality of Tax Treaties, 38 YALE J. INT'L L. 1 (2013); Sean R. Gard, Revival of the Origination Clause in Patent Law: Old Clause Trumps New Practice, 16 U. BALT. INTELL. PROP. L.J. 61 (2008); Krotoszynski, Reconsidering, supra note 1; Erik M. Jensen, Origination Clause, in The Heritage Guide to the Constitution 85-86 (2005); Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. Chi. L. REV. 361 (2004). Marie T. Farrelly, Special Assessments and the Origination Clause: A Tax on Crooks?, 58 FORDHAM L. REV. 447 (1989); Jipping, supra note 8.

(12.) See, e.g., Kysar, Shell Bill, supra note 1, at 665-71, 691. Professor Kysar's analysis, the latest contribution to the literature, is representative in this regard. Professor Kysar notes the ancient roots of the origination rule, id. at 665-66, but does not explore them. Most of her discussion addresses jurisprudence subsequent to the founding.

(13.) See NATELSON, ORIGINAL CONSTITUTION, supra note 1, at 37-41 (discussing common faults of constitutional interpretation).

(14.) See, e.g., Kysar, Shell Bill, supra note 1, at 687 (citing nineteenth century events, apparently as evidence of original meaning).

(15.) U.S. CONST, art. I, [section] 5, cl. 2 ("Each House may determine the Rules of its Proceedings ...

(16.) Cf. New York v. United States, 505 U.S. 144 (1992) (holding that an attempt by state and federal politicians to alter the federal-state balance of power was invalid). But see Dames & Moore v. Regan, 453 U.S. 654 (1981) (upholding cancellation of debts though executive agreements with foreign powers because of long usage and congressional acquiescence).

Professor Rebecca Kysar has argued that the boundaries of the Clause were designed to fluctuate according to the legislative rules, Kysar, Shell Bill, supra note 1, at 689-90, but I could find no reliable evidence to support that view.

(17.) The convention had obtained a quorum for business on May 25. FARRAND'S RECORDS, supra note 1, at 1.

(18.) Id. at 233. The various definitions of "money bill" are discussed infra Part II.B.1.

(19.) Id. supra note 1, at 233-34.

(20.) See id. (reporting editor's own remarks).

(21.) The idea of including it in the report apparently was Benjamin Franklin's. Id. at 526 (editor's note).

(22.) Id. (internal quotation marks omitted).

(23.) See infra Part II.B.

(24.) FARRAND'S Records, supra note 1, at 547.

(25.) Id. at 178.

(26.) Id. at 177.

(27.) Id. at 178.

(28.) Id. at 224.

(29.) Randolph's pivotal role in the Constitution's adoption has been unfairly neglected. He presented the Virginia Plan and helped bridge gaps between small-state delegates and nationalists. To retain his political flexibility, he refused to sign the Constitution; but that flexibility enabled him to demand a bill of rights while simultaneously acting as the Constitution's lead spokesman during the Virginia ratifying convention.

(30.) Farrand's Records, supra note l, at 230.

(31.) Id. at 273.

(32.) Id. at 273-80 (reproducing Madison's account of the debate). Dickinson has been even more underappreciated than Randolph. See generally Natelson, Dickinson, supra note 1. This debate is discussed further infra Part TV.A.

(33.) Farrand's RECORDS, supra note 1, at 280.

(34.) Id. at 297-98.

(35.) Id. at 508-09.

(36.) Id. at 509-10.

(37.) Id. at 552-53 (Madison, Sept. 8, 1787).

(38.) Id. MASS. CONST, of 1780, ch. 1, [section] 3, art. 7 (providing "All money bills shall originate in the house of representatives; but the senate may propose or concur with amendments, as on other bills.") (emphasis added).

(39.) Id. at 552-53.

(40.) Natelson, Founders' Hermeneutic, supra note 1, at 1288-89.

(41.) See, e.g., Robert G. Natelson, Proposing Constitutional Amendments by Convention: Rules Governing the Process, 78 TENN. L. REV. 693, 723-32 (2011) (showing a unified Founding-Era understanding as to the limitability of an Article V "Convention for proposing Amendments"); Robert G. Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 CASE W. Res. L. REV. 243, 296-312 (2004) (discussing almost complete consistency among the representations from proponents of the Necessary and Proper Clause).

(42.) An American, To Richard Henry Lee II, Jan. 3, 1788, reprinted in 15 Documentary History, supra note 1, at 175:
   You tell us the president & Senate have all the executive & two
   thirds of the legislative powers in their hands. Surely, Sir, this
   is very wrong in the degree for as the Senate cannot originate
   bills to raise a revenue (a most important matter) they do not hold
   so great a share of legislative power as the house of
   representatives....


See also THE Federalist No. 58, supra note 1, at 300, 303 (James Madison):

[A] constitutional and infallible resource still remains with the larger States, by which they will be able at all times to accomplish their just purposes.
   The House of Representatives cannot only refuse, but they alone can
   propose, the supplies requisite for the support of government.
   They, in a word, hold the purse--that powerful instrument by which
   we behold, in the history of the British Constitution, an infant
   and humble representation of the people gradually enlarging the
   sphere of its activity and importance, and finally reducing, as far
   as it seems to have wished, all the overgrown prerogatives of the
   other branches of the government.... Those who represent the
   dignity of their country in the eyes of other nations, will be
   particularly sensible to every prospect of public danger, or of
   dishonorable stagnation in public affairs. To those causes we are
   to ascribe the continual triumph of the British House of Commons
   over the other branches of the government, whenever the engine of a
   money bill has been employed.


In that passage Madison, a Virginian, was addressing an audience in New York, a medium-sized state with large-state aspirations. Hamilton, a New Yorker, took the same tack:
   [T]he most popular branch of every government, partaking of the
   republican genius, by being generally the favorite of the people,
   will be as generally a full match, if not an overmatch, for every
   other member of the Government. But independent of this most active
   and operative principle, to secure the equilibrium of the national
   House of Representatives, the plan of the convention has provided
   in its favor several important counterpoises to the additional
   authorities to be conferred upon the Senate. The exclusive
   privilege of originating money bills will belong to the House of
   Representatives.


The FEDERALIST NO. 66, supra note 1, at 342, 344 (Alexander Hamilton).

(43.) See, e.g., One of the People, Pa. GAZETTE, Oct. 17, 1787, reprinted in 2 DOCUMENTARY HISTORY, supra note 1, at 191 ("The government which is offered to you is truly republican, and unites complete vigor and the most perfect freedom; for the people have the election of the Representatives in Congress ... and in the House of Representatives must all money bills originate."), see also An American Citizen II, On the Federal Government, Phila Independent Gazetteer, Sept. 28, 1787, reprinted in 13 DOCUMENTARY HISTORY, supra note 1, at 265 (stating that the Senate "may restrain the profusion or errors of the house of representatives, but they cannot take the necessary measures to raise a national revenue); cf. An American Citizen III, reprinted in 2 id. at 145 (emphasizing importance of the House, although not dealing directly with the Origination Clause). "An American Citizen" was Tench Coxe, a Pennsylvania Federalist and highly influential essayist.

(44.) See, e.g., Cassius VI, MASS. GAZETTE, Dec. 18, 1787, reprinted in 5 DOCUMENTARY History, supra note 1, at 480:
   Sect. 7 provides, that all bills for raising revenues shall
   originate in the house of representatives. Here again must the
   anti-federalists appear weak and contemptible in their assertions,
   that the senate will have it in their power to establish themselves
   a complete aristocratick [sic] body; for this clause fully evinces,
   that if their inclinations were ever so great to effect such an
   establishment, it would answer no end, for being unable to levy
   taxes, or collect a revenue, is a sufficient check upon every
   attempt of such a nature.


(45.) See, e.g., Americanus II, Va. INDEPENDENT CHRONICLE, Dec. 19, 1787, reprinted in 8 Documentary History, supra note 1, at 248:
   That taxation and representation are inseparable, and that each
   should bear an exact ratio to the other are self-evident truths....
   The house of representatives, which has the exclusive right of
   originating Bills of taxation, is composed of members elected
   directly by the people in the most exact proportion.


(46.) Valerius, To the Honorable RICHARD HENRY LEE, member of Congress for the state of Virginia, Va. INDEPENDENT CHRONICLE, Jan. 23, 1788, reprinted in 8 DOCUMENTARY History, supra note 1, at 316 (internal quotation marks omitted).

(47.) Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 8 DOCUMENTARY history, supra note 1, at 76, also reprinted in 13 DOCUMENTARY HISTORY, supra note 1, at 408 (referring to "the paltry right of the Senate to propose alterations in money bills"). See also Brutus, VA. J. (Dec. 6, 1787), reprinted in 8 DOCUMENTARY HISTORY, supra note 1, at 214. This was a Virginia Federalist, not to be confused with the more famous New York Anti-Federalist "Brutus." He wrote of the Senate's amendment power:
   [I]t is giving them the power of doing good, almost without the
   possibility of doing harm.... the House of Representatives will
   discuss, form and send it up--the Senate will have it in their
   power to deliberate, debate upon it, and propose amendments, if
   necessary; but they can go no further, the House of Representatives
   must concur with their amendments or they have no effect....


Id.

See also Theophilus Parsons, Speech at the Mass. Ratifying Convention (Jan. 23, 1788), 2 ELLIOT'S Debates, supra note 1, at 92-93 (arguing that the Senate's amendment power did not add much to what the Senate could do privately in any case).

(48.) See George Mason's Objections to the Constitution of Government formed by the Convention (Oct. 7, 1787) reprinted in 8 DOCUMENTARY HISTORY, supra note 1, at 43 ("The Senate have the Power of altering all Money-Bills, and of originating Appropriations of Money, & the Sallerys of the Officers of their own Appointment in Conjunction with the President of the United States; altho' they are not the Representatives of the People, or amenable to them."); James Bowdoin to James de Caledonia, Phila. Independent Gazetteer, Feb. 27, 1788, reprinted in 16 Documentary HISTORY, supra note 1, at 240 (fictional letter about how Federalists are creating an aristocracy, assisted by the power of the Senate to alter money bills); Cincinnatus IV, To fames Wilson, Esquire, N.Y.J. (Nov. 22, 1787), reprinted in 19 DOCUMENTARY HISTORY, supra note 1, at 283-84:
   And lastly, the right of altering or amending money-bills, is a
   high additional power given them as a branch of the legislature,
   which their analogous branch, in the English parliament, could
   never obtain, because it has been guarded by the representatives of
   the people there, with the most strenuous solicitude as one of the
   vital principles of democratic liberty....

   In point of number therefore and the weight derived from it, the
   representative proposed by the constitution is remarkably feeble.
   It is farther weakened by the senate being allowed not only to
   reject, but to alter and amend money-bills.


See also A Federal Republican, A Review of the Constitution (Nov. 28, 1787), reprinted in 14 DOCUMENTARY History, supra note 1, at 272 (a Pennsylvania Anti-Federalist) ("That our boasted republic will ere long wear the face of an aristocracy may easily be seen.... There is another idea to be suggested, that in just policy no money bill should be altered or amended in any way by the senate."); William Grayson, Speeches at the Va. Ratifying Convention (June 14, 1788), 3 ELLIOT'S DEBATES, supra note 1, at 375-78 (arguing that Senate should not have the power to amend, which was tantamount to the power to originate).

(49.) The Society of Western Gentlemen Revise the Constitution, VA. INDEPENDENT Chronicle, (Apr. 30, 1788), reprinted in 9 Documentary History, supra note 1, at 769, 775 (suggesting an amendment to the Constitution to require that all bills begin in the house, with the Senate being able to amend other bills but not bills for raising revenue).

(50.) Mass. Centinel (Nov. 21, 1787), reprinted in 4 DOCUMENTARY HISTORY, supra note 1, at 288. See also James Monroe, Some Observations on the Constitution, reprinted in DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION Digital Edition 869 (John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber & Margaret A. Hogan eds., 2009), available at http:// rotunda.upress.virginia.edu/founders/RNCN-02-09-02-0003-0076 [http://perma.cc/ Z2R7-5JLJ],
   This is a check of great importance in the English constitution,
   and indeed the preservation of the democracy, but the construction
   and principles of the two governments are so radically different,
   that ... the same effects are not to be expected from it, at least
   not to the same extent in this, that are experienced in that.


Monroe, the future President, was then a Virginia Anti-Federalist.

(51.) James McHenry's Speech to Maryland House of Delegates (Nov. 29, 1787), reprinted in 14 Documentary HISTORY, supra note 1, at 279, 282-83.

(52.) He was still attorney general in 1819 and argued McCulloch v. Maryland, 17 U.S. 316 (1819) on behalf of his state before the Supreme Court. See id. at 372-77 (reporting Martin's argument).

(53.) Luther Martin, Genuine Information, BALTIMORE MD. GAZETTE (Dec. 28, 1787), reprinted in 1 ELLIOT'S DEBATES, supra note 1, at 367. See also Luther Martin's Speech Before the Maryland House of Delegates (Nov. 29, 1787), reprinted in 14 DOCUMENTARY HISTORY, supra note 1, at 289-90 ("It was contended that the Senate derived their powers from the People and therefore ought to have equal priviledges [sic] to the Representatives....").

(54.) Fabius II, Pa. MERCURY (Apr. 15, 1788), reprinted in 17 DOCUMENTARY HISTORY, supra note 1, at 124 (stating, "These representatives will also command the public purse, as all bills for raising revenue, must originate in their house."). Moreover, Dickinson had close ties with Pennsylvania as well as Delaware.

(55.) 1 Farrand'S RECORDS, supra note 1, at 527 (arguing that it was useless); 2 FARRAND'S RECORDS, supra note 1, at 224 (arguing that it could be harmful).

(56.) Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 8 Documentary History, supra note 1, at 76; reprinted in 13 Documentary History, supra note 1, at 408 (referring to "the paltry right of the Senate to propose alterations in money bills"). See also THE FEDERALIST No. 58, supra note 1, at 300, 303.

(57.) James Madison, Speech to the Virginia Ratifying Convention, 3 ELLIOT'S DEBATES, supra note 1, at 377 ("The honorable member [William Grayson] says that there is no difference between the right of originating bills and proposing amendments. There is some difference, though not considerable."). Another exception was the Federalist who signed his survey of the Constitution, "A Native of Virginia":
   In this the Constitution is an improvement upon that of England:
   There all money bills must not only originate but must be perfected
   in the House of Commons: Here though the Senate cannot originate
   such bills, yet they have the power of amending them, and by that
   means have an opportunity of communicating their ideas to the House
   of Representatives upon the important subject of taxation.


A Native of Virginia, Observations upon the Proposed Plan of Federal Government (Apr. 2, 1788), reprinted in 9 DOCUMENTARY HISTORY, supra note 1, at 668.

(58.) See infra Parts II & III.

(59.) See infra Parts IV & V.

(60.) This Part reports the results of searches, largely but not exclusively digitized, into modern scholarship and eighteenth-century materials. The eighteenth century materials include (1) leading treatises, as cited in the footnotes; (2) the official journals for both the House of Commons and the House of Lords; (3) William Cobbett's PARLIAMENTARY HISTORY, a collection of floor debates, with some commentary; and (4) the Parliamentary Register, another collection of floor debates.

To avoid anachronism (discussed supra in the Introduction, section B), I selected as the time frame the fifty-year stretch ending on May 29, 1790. This period offers the advantage of covering all the years any of the leading founders were in London. A caveat; eighteenth century parliamentary records must be used with caution. They arose in a context with which most American constitutional writers are unfamiliar, they are incomplete, and they are skewed toward the comments of those MPs willing to provide their speeches to reporters.

(61.) J. A. Leo Lemay, Benjamin Franklin (1706-1790), OXFORD DICTIONARY OF NATIONAL BIOGRAPHY (stating that Franklin served as agent for four colonies: Pennsylvania, Massachusetts, New Jersey, and Georgia).

(62.) See John Dickinson, A Pennsylvania Farmer at the Court of King George: John Dickinson's London Letters, 1754-1756, Pa. Mag. HIST. & BIOGRAPHY, 417-20 (H. Trevor Colboum ed., 1962) (setting forth the content of Dickinson's letters from London to his parents).

(63.) E. Alfred Jones, American Members of the Inns of Court 21-22, 61-63, 102, 104, 134-36, 170-71 (1924) (including, besides Dickinson, John Blair, William Houston, Jared Ingersoll, William Livingston, Charles Pinckney, and Charles Cotesworth Pinckney).

(64.) See, e.g., id. at 124 (citing Henry Lee, a Federalist speaker at the Virginia ratifying convention); id. at 216 (listing Alexander White, a leading Federalist spokesman in the same state).

(65.) Charles Warren, A History of the American Bar 18 (1911) (stating that between 1750 and 1775, four colonies, Maryland, Pennsylvania, South Carolina, and Virginia, had nearly 150 lawyers educated at the Inns).

(66.) K. R. Constantine Gutzman, William Grayson, AMERICAN NATIONAL BIOGRAPHY Online.

(67.) See infra Part V.C.

(68.) See, e.g., De LOLME, supra note 1. Popular in America were the books by the Whig historian Catherine Macaulay. See, e.g., Letter from Benjamin Rush to Catherine Macaulay, Jan. 18, 1769, reprinted in 2 The Founders' Constitution 375-76 (Philip B. Kurland & Ralph Lemer eds., 1987). Rush was a signer of the Declaration of Independence, a member of Congress, America's leading physician, and a delegate to the Pennsylvania ratifying convention.

(69.) 1 William Blackstone, Commentaries *182.

(70.) Certain peers from the northern part of the country were elected by other Lords, l William Blackstone, Commentaries *163, reprinted in 2 The Founders' CONSTITUTION 374 (Philip B. Kurland & Ralph Lerner eds., 1987).

(71.) The least democratic chamber was probably the Maryland senate. Md. CONST, of 1776, arts. XIV & XV (providing for indirect election of senators every fifth year).

(72.) GA. CONST, of 1777, art. II; PA. CONST, of 1776; [section] II; Vt. CONST, of 1777, ch. II, [section] II.

(73.) S. M. Pargellis, The Procedure of the Virginia House of Burgesses (pt. 1), 7 WM. & MARY C. Q. Hist. Mag. 73, 74 (1927) (observing that "the historic procedure of the house of commons ... was copied in nearly every important detail by the house of burgesses"); S.M. Pargellis, The Procedure of the Virginia House of Burgesses (pt. 2), 7 WM. & MARY C. Q. Hist. Mag. 143, 156 (1927) (noting the House of Burgesses' "remarkable adherence to English forms and practices"); Joan de Lourdes Leonard, The Organization and Procedure of the Pennsylvania Assembly 1682-1776, 72 PA. Mag. HIST. & Biography 215, 239 (1948) (noting similarity between rules of the Pennsylvania Assembly and the House of Commons); Jack P. Greene, The Role of the Lower Houses of Assembly in Eighteenth-Century Politics, 27 J. S. HIST. 451, 466 (1961) (pointing out that lower houses of colonial legislatures often justified their actions by claiming that they were "agreeable to the practice of the House of Commons").

(74.) See generally JEFFERSON'S MANUAL, supra note 1 (discussing Senate procedures and relying heavily on parliamentary citations); MASON, supra note 1, by far the most frequently-used procedural manual among American state legislative chambers, explains: "Parliamentary law consists of the recognized rules, precedents and usages of legislative bodies by which their procedure is regulated. It is that system of rules and precedents that originated in the British Parliament and that has been developed by legislative or deliberative bodies in this and other countries." Mason's Manual, supra note 1, at 29.

(75.) See infra Part II.B.1.

(76.) De LOLME, supra note 1, at 58 (outlining the procedure).

(77.) Id.

(78.) Id. at 80 ("any alteration that may be made in it, in the other House, is sure to be rejected"); 1 WILLIAM BLACKSTONE, COMMENTARIES *164.

(79.) DE Lolme, supra note 1.

(80.) HAYTON, supra note 1.

(81.) Giles Jacob, Lex Constitution^; or, the Gentleman's Law 145 (1737) (stating, "The Commons in Making and Repealing of Laws have equal Power with the Lords; and for laying of Taxes on the Subject, the Bill is to begin in the House of Commons ... [which] will not permit any Alterations to be made by the Lords in a Bill concerning Money.").

(82.) 1 William Blackstone, Commentaries *169 (stating "[the Commons] ... will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill").

(83.) 1 William Blackstone, Commentaries *169.

(84.) ACHERLEY, supra note 1, at 45-46. Of the origination privilege, Acherley wrote:
   That the sole Right and Power over the Peoples Monies and
   Treasures, and of Giving, and Granting, or Denying Monies, and
   Imposing Taxes for the Publick Service should be Vested in [the
   Commons] and that all Motions and Laws Relating thereto, should be
   First Propounded, and have their Rise, Commencement and Progress in
   their House...."


Id. at 49.

(85.) Id. at 46.

(86.) See, e.g., 23 COBBETT, supra note 1, at 139-44 (reproducing remarks by the Earl of Shelburne in the Lords, July 3, 1782); PARLIAMENTARY REGISTER, supra note 1, Fifteenth Parliament, Second Session, at 347 July 3, 1782) (reproducing remarks by the Duke of Richmond); but see id. at 348-49 (reporting remarks by Lord Stormont).

(87.) PARLIAMENTARY Register, supra note 1, Fifteenth Parliament, Third Session, at 1-2 (May 8, 1783) (reporting remarks by the Speaker).

(88.) See 20 COBBETT, supra note 1, at 1008-18 (July 2, 1779) (reproducing the Commons debate on the Lords' amendment to the militia bill, illustrating disagreement about what was and was not a money bill and complaints about the Lords having gutted the militia bill, which ultimately passed).

(89.) HAYTON, supra note 1 ("Supply bills always began in the Lower House, while most private estate bills originated in the Upper."); cf. DE LOLME, supra note 1, at 58 ("All Bills for granting Money must have their beginning in the House of Commons....").

(90.) EINZIG, supra note 1, at 137-38. See also 3 HATSELL, supra note 1, at 87 (referring to "granting and appropriating" as components of supply); id. at 88 (providing an example of earmarking levied funds for shipbuilding).

(91.) Id. at 118-19, 132, 142. Until the latter part of the eighteenth century, the king generally had a free hand in administering civil list funds. Id. at 151. A shift did not begin until 1777. Id. at 153, 163. As the century progressed, moreover, Parliament funded increasing shares of the civil service with supply bills other than the civil list bill. Id. at 153.

(92.) Id. at 164 (noting the prevalence of earmarked taxes in 1785).

(93.) Id., at 120, 160, 164-65.

(94.) Burke, of course, was one of the most dazzling characters in an age of dazzling characters: a moderate Whig, leading parliamentarian, friend of the American colonies, enemy of the French Revolution, noted philosopher, and widely accounted as the founder of modern conservatism. See generally RUSSELL KIRK, Edmund Burke: A Genius Reconsidered (1967).

(95.) EINZIG, supra note 1, at 164-65 (describing the Civil Establishment Act of 1782).

(96.) Id. at 138, 163.

(97.) See MASON'S MANUAL, supra note 1, at 225.

(98.) See 38 H.L. JOUR., supra note 1, (Aug. 30, 1789), available at http:// www.british-history.ac.uk/report.aspx7compidM16866 [http://perma.cc/RFD9VJ4C] (placing into a committee a single bill granting and applying money for various purposes); 3 HATSELL, supra note 1, at 96-97 (reporting an incident of a single bill altering various financial duties). Cf. 28 COBBETT, supra note 1, at 270 (July 10, 1789) (reporting the comment by MP Richard Brinsley Sheridan that "all the ministers [sic] revenue bills were hotch-potch bills," meaning omnibus revenue bills); 30 H.L. JOUR., supra note 1, at 381 (Mar. 28, 1763) (reporting the Lords' rejection of dissenters' argument that a bill was improper because it contained several different kinds of revenue-raisers).

(99.) Both Johnson's and Sheridan's dictionaries defined "hotchpotch," as one unhyphenated word: "a mingled hash, a mixture." JOHNSON, supra note 1; SHERI DAN, supra note 1 (both unpaginated). The word did not appear in most other dictionaries.

(100.) See, e.g., PARLIAMENTARY REGISTER, supra note 1, Fifteenth Parliament, Second Session, at 275-76 (June 27, 1782) (reporting discussion in the Commons on a hotch-potch bill); id. Sixteenth Parliament, Sixth Session, at 377 (July 10, 1789) (reporting remarks of William Pitt).

(101.) 3 HATSELL, supra note 1, at 220-24 (describing and criticizing tacking); FINZIG, supra note 1, at 196-98 (relating the history of tacking).

(102.) The Lords' standing order is mentioned at 23 COBBETT, supra note 1, at 144-45 (speech by Lord Loughborough, July 3, 1782). See also DE LOLME, supra note 1, at 261.

(103.) See Parliamentary Register, supra note 1, Fifteenth Parliament, Second Session, at 346 (July 3, 1782) (reporting remarks by the Lord Chancellor); id. at 348 (July 3, 1782) (reporting remarks by Lord Stormont); id. at 351 (reproducing remarks by Lord Loughbrough).

(104.) For the origins and evolution of the Commons privilege, see EINZIG, supra note 1, at 111-14.

(105.) EINZIG, supra note 1, at 195.

(106.) 19 COBBETT, supra note 1, at 1032, 1048-49 (Apr. 8, 1778). As an admonition to his fellow members of the Commons, Edmund Burke cited this speech in his own oration of June 14, 1784. 24 COBBETT, supra note 1, at 955; see also PARLIAMENTARY REGISTER, supra note 1, Fourteenth Parliament, Fourth Session, at 375 (Apr. 7, 1778) (containing similar assertions by the Duke of Richmond and the Earl of Effingham on the Lords' privilege to fully consider and amend); id. at 428-29 (June 2, 1778) (reproducing further statements by the Duke of Richmond); 19 COBBETT, supra note 1, at 1239 June 2, 1778) (paraphrasing the Lord Chancellor in the House of Lords, who in contrast to his statement on April 7, said, "He said he never could agree, that the Lords, by either amending or rejecting a money Bill, thereby invaded the province of the other House"); 23 COBBETT, supra note 1, at 1028 (June 18, 1783), paraphrasing Earl Ferrers:
   How it ever should have been understood, that their lordships were
   not empowered to make alterations in money bills, he could not
   conceive, or from what principle the other House had assumed to
   themselves the right of framing taxes which they were to give their
   consent to as a matter of course, without being at liberty to judge
   whether they were proper and equitable, or partial and unjust, or
   to make an alteration, which might be of the greatest advantage to
   the nation at large.


(107.) 17 COBBETT, supra note 1, at 512-15 (Jane 3, 1772). Einzig relates this incident and another like it. EINZIG, supra note 1, at 196.

(108.) See also supra note 86 and accompanying text (defining money bills to include denial of revenue).

(109.) 3 HATSELL, supra note 1, at 110-47.

(110.) Id.

(111.) Id.

(112.) On Charles James Fox, see FOX, Hon. Charles James (1749-1806), of Wimbledon, Surr., The History OF Parliament Trust, available at http:// www.historyofparliamentonline.org/volume/1754-1790/member/fox-hon-charlesjames-1749-1806 [http://perma.cc/3RB6-6UXY].

(113.) Parliamentary Register, supra note 1, Fifteenth Parliament, Third Session, at 2 (May 8, 1783) (reporting remarks by Charles James Fox).

(114.) 3 HATSELL, supra note 1, at 147.

(115.) 3 Hatsell, supra note 1, at 153-55. Cf. Parliamentary Register, supra note 1, Fourteenth Parliament, Fifth Session, at 540 (July 2, 1779) (reporting a similar attempt to synthesize the cases by Sir Grey Cooper).

(116.) Hayton, supra note 1 ("If the two Houses did not agree, the differences between them would have to be settled by a conference or conferences.").

(117.) See, e.g., 14 COBBETT, supra note 1, at 1234-35 (Feb. 25, 1752) (reporting that the Commons rejected an amendment from the Lords because the amendment added a tax, and the Lords were denying any inability to amend money bills, so to assuage the Lords, the Commons advanced other reasons for rejection, and the Lords receded from their amendments) (Editor's discussion). See also 27 COBBETT, supra note 1, at 652 ("The Bill being returned to the Commons, and some of the amendments being thought to trench on the privileges of that House, the consideration of the said amendments was postponed for three months. A new bill was immediately brought in, which passed both Houses.") (Editor's summary of debate of June 30, 1788).

(118.) As James Wilson put it, "The point is still sub judice in England." 1 FARRAND'S Records, supra note 1, at 546 (Madison, July 6, 1787) (reporting remarks by Wilson).

(119.) Kysar, Shell Bill, supra note 1, at 685, 690-92, argues that the phrase "as on other Bills" implies that Congress may change the Constitution's amendment rule for revenue bills as it may alter rules on other subjects. Id. at 685, 690-92. One difficulty with this interpretation is that it would enable Congress to eliminate a constitutional check inserted for reasons exogenous to its internal operations. See infra Part IV, V. This would be comparable to enforcing an agreement between Congress and a weak President to abolish the presidential veto.

(120.) ASH, supra note 1 ("To grow better, to alter for the better"); BAILEY, supra note 1 ("to reform"); BARLOW, supra note 1 ("to alter for the better."); DONALDSON, supra note 1 ("to grow better; to advance in any good"); JOHNSON, supra note 1 ("To grow better; to increase in any good; to be changed for the better"); PERRY, supra note 1 ("to improve; to grow better"); SHERIDAN, supra note 1 ("to grow better").

(121.) ALLEN, supra note 1. Cf. JOHNSON, supra note 1 ("1. A change from bad for the better. 2. Reformation of life. 3. Recovery of health."); PERRY, supra note 1 ("to correct; grow better").

(122.) 17 COBBETT, supra note 1, at 389 (Mar. 2, 1772):
   The Lord Chancellor said, that he confessed he had had a share in
   drawing this Bill, and should be unworthy of the situation he was
   in if he could not defend every clause, every sentence, every
   syllable, every word, and every letter in it; that he would defend
   every part of it, and was free to confess that he would not consent
   to any amendment whatsoever; that if the Bill was to be altered, it
   were better to throw it out; that it could not be mended....


See also 19 COBBETT, supra note 1, at 50 (Feb. 17, 1777) (reporting a speech by Solicitor General Alexander Wedderburn in Commons using the phrase "mended or unamended").

(123.) 37 H.C. JOUR. 30 (Dec. 7, 1778) (stating, "nor the Roads effectually widened, amended, and kept in Repair").

(124.) 14 COBBETT, supra note 1, at 410 (Mar. 3, 1749) (presenting the editor's summary of debate: "[T]hey have made a most dangerous encroachment upon the civil power in all his majesty's plantations; therefore this may be called an alteration, but it cannot be called an amendment.").

(125.) 13 COBBETT, supra note 1, at 793 (Apr. 27, 1744) (reporting Chancellor Hardwick as contending, "for every alteration, though it be for the same purpose with those offered by the Commons, must be called an amendment."). See also Philips, Lex Parliamentary: Or, A Treatise of the Law and Custom of Parliaments 328 (3d ed. 1748) (apparently using the words "Amendment" and "Alteration" interchangeably).

(126.) One reviewer suggested I distinguish between amendments to bills and amendments to resolutions, or between amendments to bills arising in the same house and amendments to bills reported from the other house. I could not find sufficient evidentiary justification for such distinctions.

(127.) 13 COBBETT, supra note 1, at 91-92 (Mar. 11, 1742). See also 13 COBBETT, supra note 1, at 699 (Apr. 3, 1744) (quoting the Parliamentary Journal of the Hon. Philip York as stating, "Moves an Amendment or rather total alteration of the question ...."); 16 COBBETT, supra note 1, at 1052 (Nov. 13, 1770) (quoting William Dowdeswell as stating in Commons, "As no proposal has been made to amend the Address, I conclude that it cannot be amended; that it is not faulty in particular part, but is uniformly and totally wrong: this is my reason for proposing no amendment"); 16 COBBETT, supra note 1, at 266 (Dec. 10, 1766) (reporting editor's composite of speeches in Lords: "[N]or do I see that such an alteration would be an amendment of the constitution; I think it would destroy it, to the very foundation."); 28 COBBETT, supra note 1, at 714 (Apr. 26, 1790) ("Mr Curwen observed, that being perfectly convinced that the bill was so defective that it could not by any amendment which it might receive in the committee be rendered unobjectionable, he should oppose the motion.").

(128.) In the interest of space, a sample of several kinds of amendments must suffice. 25 H.C. JOUR. 138-39 (Apr. 28, 1746) (reproducing Commons committee amendments to a Commons bill); 31 H.C. JOUR. 168 (Feb. 19, 1767) (reproducing Commons committee's amendments to Lords bill); 33 H.C. JOUR. 972 (May 11, 1770) (reproducing Lords amendments to Commons bill); 34 H.C. JOUR. 349 (May 29, 1773) (reproducing an approved amendment from the floor); 37 H.C. JOUR. 697 (Mar. 7, 1780) (reporting a successful amendment that expunged five of eight lines in a motion for an accounting in favor of a longer, more precise description of how the accounting was to be conducted).

(129.) 13 COBBETT, supra note 1, at 806 (Apr. 27, 1744) (reporting remarks of Lord Talbot):
   It is well known, my lords, that the Bill now before us was sent up
   from the Commons in another form, and that it has received so many
   alterations in this House, that its original intention is almost
   forgotten, and the first plan almost hidden by the additions which
   one proposition after another has produced. The Bill thus amended
   must now pass under the inspection of the Commons, and our
   alterations must be confirmed by their suffrages.


See also 15 COBBETT, supra note 1, at 32 (May 14, 1753, editor's comments) ("[T]he [Clandestine Marriage] Bill was almost entirely altered by the addition of new clauses and alteration of every one of the old."). Yet, the editor also reported that "The House proceeded to take into consideration the Amendments made by the Commons to the said Bill: and the said Amendments being read twice by the clerk, were agreed to." Id. at 86 (June 6, 1753). See also 26 COBBETT, supra note 1, at 80 (June 2, 1786) (reporting Charles James Fox as stating in the Commons, "The Bill which they have framed, has been renewed and amended, until it scarcely bears the resemblance of the original form.").

(130.) Sheridan was a brilliant literary figure. See generally Sheridan, Richard Brinsley, (1751-1816), of Harrow, Mdx., The HISTORY OF PARLIAMENT TRUST, http://www.historyofparliamentonline.org/volume/1754-1790/member/sheridanrichard-brinsley-1751-1816 [http://perma.cc/98SM-LL88].

(131.) 28 COBBETT, supra note 1, at 270 duly 10, 1789).

(132.) 19 COBBETT, supra note 1, at 640 (Feb. 4, 1778):
   Lord Camden spoke in reply to lord Mansfield, and began with
   observing, that had the noble earl early in the debate given his
   sentiments on the irregularity of quashing the motion, by moving an
   amendment totally foreign to the purport of it, he should have been
   exceedingly happy, as it might have assisted their lordships
   materially, by bringing on a debate on the question really before
   the House, and which was of too important a nature to be taken up
   hastily, or by the bye, as the noble earl had done.


(133.) 28 COBBETT, supra note 1, at 368 (Feb. 9, 1790) (quoting Richard Sheridan as stating in the Commons, "For such an evil, when proved, what remedy could be resorted to, but a radical amendment of the frame and fabric of the constitution itself?"). The same day, he repeated the expression, "In hoping, however, that that government might be radically amended ... ."Id. at 369.

(134.) 20 COBBETT, supra note 1, at 1008-18 (July 2, 1779) (reporting proceedings in Commons on a Militia Bill).

(135.) 25 COBBETT, supra note 1, at 89 (Feb. 21, 1785) (quoting Edward Bearcroft in the Commons, describing Richard Sheridans's amendment to a Lords bill).

(136.) HAYTON, supra note 1 (stating, "In the case of legislation a conference would usually be called if one House amended to an unacceptable extent a bill produced by the other.").

(137.) 2 HATSELL, supra note 1, at 70 (citing examples on Feb. 24, 1728, and on Mar. 12, 1728, in which the sense and meaning of questions were totally altered by amendments). See id. at 75-76 (discussing the Duke of Aremberg incident mentioned in the text); id. at 73 ("But as it often happens that questions are moved, upon which the House do not wish to give any opinion, they avoid it ... by making such amendments to the question as change the nature of it, and make it inadmissible even by those who proposed it.").

(138.) 13 COBBETT, supra note 1, at 701 (Apr. 3, 1744). The amendment changed the words describing the action from "a dangerous misapplication of public money, and destructive of the rights of parliament" to "necessary for putting the said troops in motion, and of great consequence to the common cause."

(139.) 2 Hatsell, supra note 1, at 84.

(140.) Id.

(141.) 20 COBBETT, supra note 1, at 1037 (Nov. 25, 1779) (reporting speech in Lords by Lord Stormont).

(142.) Daniel Smyth, The Origination Clause III; ObamaCare's a Good Amendment to Die Hard, http://www.americanthinker.com/articles/2013/ll/the_origination_clause_iii_ obamacares_a_good_amendment_to_die_hard.html [http://perma.ee/C6DY-J58M].

(143.) 13 COBBETT, supra note 1, at 701.

(144.) Id.

(145.) Cf. Flint v. Stone Tracy Co., 220 U.S. 107, 143 (1911) (upholding a Senate amendment against an Origination Clause challenge in part because the amendment was germane to the subject of the original bill).

(146.) MASON'S MANUAL, supra note 1, at 272.

(147.) The use of the word "germane" to mean "relevant" or "pertinent" dates to the early seventeenth century. OXFORD ENGLISH DICTIONARY ONLINE, http://www. oed.com. weblib.lib.umt.edu:8080/view/Entry/77863?redirectedFrom=germane#eid [http://perma.cc/7JR3-2PV3], but its use to indicate a necessary connection between an original bill and a proposed amendment seems not to have arisen until the nineteenth century. MASON'S MANUAL, supra note 1, at 272 (discussing the germaneness requirement, and citing sources dating no earlier than the nineteenth century).

(148.) 18 COBBETT, supra note 1, at 656-57 (reporting Lord Camden as stating that "no amendment, nor any thing [sic] short of a total repeal of it, would be sufficient.") (May 17, 1775).

(149.) 28 COBBETT, supra note 1, at 357 (Feb. 9, 1790).

(150.) Kysar, Shell Bill, supra note 1, at 686.

(151.) Jefferson's Manual, supra note 1, at 61. Jefferson's Rule 35.3 provides as follows:
   Amendments may be made so as totally to alter the nature of the
   proposition; and it is a way of getting rid of a proposition, by
   making it bear a sense different from what was intended by the
   movers, so that they vote against it themselves. 2 Hats. 79, 4, 82,
   84. A new bill may be ingrafted by way of amendment, on the words
   "Be it enacted, &c." 1 Grey 190, 192.


(152.) The only examples he provides appear at 2 HATSELL, supra note 1, at 79 & 85, although he does state that evasive amendments are an option for the House of Commons when it wishes to avoid giving an opinion on a question. Id. at 82.

(153.) Jefferson's Manual, supra note 1, at 61 (citing 1 Grey 190, 192).

(154.) The text is in two fragments, as follows:
   Sir Nicholas Carew. Would have a new Bill sent up to the Lords, but
   not retain this Viper to destroy us all.

   Sir Robert Howard. One line only to be grafted upon in this Bill,
   viz. "Be it enacted by the Lords and Commons." Suppose their
   Privilege and ours taken away by this Bill, yet they retain them by
   the Proviso.


Id. at 190.
   Mr Sollicitor Finch. Not safe, nor useful, to throw out, or keep,
   this Bill--Unless to have one neither like this, nor what we sent
   up--Since they have taken this way not to amend ours, he would have
   this sent up by way of amendment, and upon conference we may show
   them how shameful it is we should have this sent us; and at a
   conference may be informed, whether the Privilege they mention in
   their Bill be such as is known by Law, or any new unknown one. By
   this Bill any man may settle a trust in a Peer, and the party avoid
   justice. If a man have a decree, how can it be executed?

   Sir Thomas Meres. Neither fears to be dissolved, nor desires
   it--Would have it read a second time, the 10th of February, that
   the House may be full.

   Sir Thomas Littleton. To send up a second Bill, would be to have a
   second foil--Would have us rest upon our votes--Would have it laid
   aside, with this consideration entered in the Journal, "That this
   shall not tend to the hindrance of any intercourse between the two
   Houses."

   Mr Swynfin. Proper reason for not reading a Bill a second time, is,
   when no part of it can be mended. In the enacting Clause, viz. that
   no cause of original complaint shall be tryed, &c. it is a plain
   owning, assuming, and now enacting, that nothing shall be taken
   from the Lords, but what is in express words taken by this Act; we
   are content not to be troubled with civil Causes, tryable in any
   other Court, but reserve still a power--That word "lower House" was
   never used but in Henry VUIth's time, when the House of Commons was
   much imposed upon--This breaks off our intercourse only as to this
   business, but nothing else; you may send up any vote, or reasons,
   why you lay it aside.


Id. at 192.

(155.) ACHERLEY, supra note 1, at 45-46 (asserting that the power of origination grants to the Commons, "the First Commencement and Consideration, and the sole Modeling in their House"); De LOLME, supra note 1, at 67 (stating, "All Bills for granting Money must have their beginning in the House of Commons: the Lords cannot take this object into their consideration but in consequence of a bill presented to them by the latter").

(156.) See supra Part II.A; FISHER, supra note 1, at 133. Fisher's book is a classic exposition of the Constitution's roots in earlier documentary history.

(157.) E.g., An Act for the Supply of the Treasury (Mass., May 13, 1753), available at Eighteenth Century Collections Online (imposing various kinds of levies and appropriating funds). For discussion of a Maryland colonial supply bill, see "A FRIEND to Maryland," An Answer to the Queries on the Proprietary Government of Maryland Inserted in the Public Ledger (1764). See especially id. at 61-63 (containing a letter from the upper house to the lower discussing the bill and alluding to the colonial-era power of the upper house to amend).

(158.) FISHER, supra note 1, at 133. Zotti and Schmitz cite and quote language requiring popular consent in the colonies for taxation and they see therein precedents for lower house origination, but I do not read any of that language as requiring lower house origination. Zotti & Schmitz, supra note 1, at 70-82

(159.) FISHER, supra note 1, at 133.

(160.) James Wilson, Considerations on the Nature and the Extent of the Authority of the British Parliament 33-34 (1774).

(161.) E.g., DICKINSON, supra note 1, at 7 (stating, "The parliament unquestionably possesses a legal authority to regulate the trade of Great Britain, and all her colonies. Such an authority is essential to the relation between a mother country and her colonies; and necessary for the common good of all") (italics in original).

(162.) Id.

(163.) See, e.g., JOHNSON, supra note 1 (unpagingated) (defining "tax" as "an impost; a tribute imposed; an excise; a tallage," without distinguishing the purpose as regulatory, revenue-raising, or both).

(164.) Dickinson, supra note 1.

(165.) Id. at 21 (italics in original).

(166.) Id. at 23.

(167.) Id. at 23-24.

(168.) Richard Bland, An Inquiry Into the Rights of the British Colonies (Earl Gregg Swem ed., 1922).

(169.) John Adams, Novanglus, Or A History of the dispute with America (1774) reprinted in The Works of John Adams, Vol. IV, 11-177 (Charles C. Little & James Brown eds., 1851); JAMES WILSON, CONSIDERATIONS ON THE NATURE AND THE Extent of the Authority of the British Parliament (1774) reprinted in Collected Works of James Wilson (Kermit L. Hall & Mark David Hall eds., 2007).

(170.) 1 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789 at 84 (Worthington C. Ford ed., 1904).

(171.) 2 FARRAND'S RECORDS, supra note 1, at 363 (reporting that Clymer "moved as a qualification of the power of taxing Exports that it should be restrained to regulations of trade, (by inserting after the word "duty" Sect 4 art VII the words) 'for the purpose of revenue.'"); id. at 344 (reporting Mason's unsuccessful effort to enumerate congressional authority to enact sumptuary laws in addition to the taxation power and Oliver Ellsworth's rejoinder that the tax power sufficed because taxes could affect behavior "As far as the regulation ... can be reasonable"). See also Robert G. Natelson, What the Constitution Means by "Duties, Imposts, and Excises"--and "Taxes" (Direct or Otherwise) (forthcoming) (discussing the difference between "impositions" and "taxes" during the Founding and the recognition that taxes could affect behavior incidentally).

(172.) E.g., Americanus II, VA. INDEPENDENT CHRONICLE, Dec. 19, 1787, reprinted in 8 Documentary History, supra note 1, at 244, 248 (stating, "The house of representatives, which has the exclusive right of originating bills of taxation, is composed of members elected directly by the people in the most exact proportion.") Note how the word "taxation" is used as a proxy for "Bills for the raising of Revenue". See also The State Soldier I, VA. INDEPENDENT CHRONICLE, Jan. 16, 1788, 8 DOCUMENTARY HISTORY 303, 305 (same).

Accord Zotti & Schmitz, supra note 1, at 100-01.

(173.) U.S. CONST, art. I, [section] 9, cl. 1 ("a Tax or duty may be imposed on such Importation") & cl. 5 ("No Tax or Duty shall be laid on Articles exported from any State."). See also Natelson, supra note 171.

(174.) However, the duties, imposes, and excises authorized by U.S. CONST, art. I, [section] 8, cl. 1 apparently were those designed to raise revenue; see NATELSON, ORIGINAL CONSTITUTION, supra note 1, at 88-89.

(175.) See Part III.B (particularly the material on the Maryland constitution of 1776).

(176.) Both were elected to annual terms. N.C. CONST, of 1776, arts. II & III. The New York senate was a more remote body, elected for staggered four-year terms in large districts. N.Y. CONST, of 1777, art. XI.

(177.) Ga. Const, of 1777, art. H; Pa. CONST.of 1776, [section] II; VT. CONST, of 1777, ch. II, [section] ii.

(178.) 1 FARRAND'S Records, supra note 1, at 546 (quoting Franklin as saying, "As to the danger or difficulty that might arise from a negative in the 2d. [house] where the people wd. not be proportionally represented, it might easily be got over by declaring that there should be no such Negative: or if that will not do, by declaring that there shall be no such branch at all.").

(179.) Va. CONST, of 1776 (unnumbered) ("All laws shall originate in the House of Delegates, to be approved of or rejected by the Senate, or to be amended, with consent of the House of Delegates; except money-bills, which in no instance shall be altered by the Senate, but wholly approved or rejected.").

(180.) N.J. CONST, of 1776, art. VI:
   That the Council shall also have power to prepare bills to pass
   into laws, and have other like powers as the Assembly, and in all
   respects be a free and independent branch of the Legislature of
   this Colony; save only, that they shall not prepare or alter any
   money bill--which shall be the privilege of the Assembly....


(181.) FISHER, supra note 1, at 134 ("Excepting bills and resolves levying and granting money or other property of the State, which shall originate in the house of representatives only, and be concurred or non-concurred in whole by the senate.").

(182.) Del. CONST, of 1776, art. 6 (italics added).

(183.) Minutes of the Council of the Delaware State, from 1776 to 1792, 616-17 (1886) (Feb. 12, 1781). The council had sent the assembly an appropriation bill, whereupon the assembly: "Resolved, That the same, being a money bill for the support of Government, ought to have originated in the House of Assembly, agreeable to the sixth section of the Constitution of this State, and that House cannot proceed upon the bill aforesaid." The council acquiesced in this determination after the assembly initiated a duplicate bill. Id.

(184.) Md. const, of 1776, arts. X, XI & XXII.

(185.) S.C. CONST, of 1776, art. 7 ("All Money Bills for the support of government shall originate in the General Assembly, and shall not be altered or amended by the Legislative Council, but may be rejected by them."); S.C. CONST, of 1778, art. XVI ("all money bills for the support of government shall originate in the house of representatives, and shall not be altered or amended by the senate, but may be rejected by them.").

See also S.C. H.R. JOUR. (1782), supra note 1, at 117, 119, 120 (Feb. 24-25, 1782) (negotiating with Senate over that body's amendment of amercement bill); S.C. H.R. JOUR. (1776-80), supra note 1, at 185 (Aug. 31, 1779) (reporting Senate initiation of bill raising ferry rates); id. at 205 (Sept. 7, 1779) (reporting House passage); id. at 209 (Sept. 8, 1779 (reporting Senate passage). The 1782 measure occurred after the House had successfully asserted the privilege against Senate amendment of other money bills and the 1779 measure at the time it was doing so. See infra notes 193-207 and accompanying text.

(186.) N.H. Const, of 1776.

(187.) Zotti & Schmitz, supra note 1, at 85-91, summarize state constitutional origination requirements before 1790, but do not reflect the differences in the content of those requirements nor their evolution in subsequent legislative practice.

(188.) E.g., N.Y. ASSEM. JOUR. 60, supra note 1, (Feb. 28, 1786) (so calling an appropriation bill).

(189.) For examples from one state, see e.g., S.C. H.R. JOUR. (1776-80), supra note 1, at 211 (Sept 8, 1779) (tax bill); 160 (Oct. 17, 1776) (appropriation for "watch companies" (teams for night duty)); 198 (Sept. 5, 1779) (borrowing bill); 205 (Sept. 7, 1779) (ferriage bill). On local fee-for-service as a money bill, see 1 WILLIAM BLACKSTONE, COMMENTARIES at *169 ("[money] for private benefit, and collected in a particular district; as by turnpikes, parish rates [local taxes], and the like").

(190.) E.g., N.Y. ASSEM. JOUR., supra note 1, at 91-92 (Mar. 25, 1778) (referencing a bill containing different kinds of taxes); N.Y. Sen. Jour., supra note 1, at 99-100 (Mar. 28, 1778) (same). Thus, a broad New York revenue measure considered by the 1786 legislature was entitled merely "an Act for Raising Monies by Tax." N.Y. ASSEM. JOUR., supra note 1, at 31 (Feb. 4, 1786) (reporting house order "That a bill be prepared and brought in, for the raising the sum of [blank] by tax, within this State); id. at 80 (Mar. 13, 1786) (referring to the measure as "An act for raising monies by tax").

(191.) E.g., 1780 N.J. Proceedings, supra note 1, at 55 (Dec. 12, 1780).

(192.) See 1 FARRAND'S RECORDS, supra note 1, at 546 & 2 FARRAND'S RECORDS, supra note 1, at 274-75.

(193.) S.C. CONST, of 1776, art. VII; S.C. CONST, of 1778, art. XVI.

(194.) See S.C. H.R. JOUR. (1776-80), supra note 1, at 21 (Apr. 2, 1776) (sending back house message for insufficiently dignified address).

(195.) S.C. H.R. JOUR. (1776-80), supra note 1, at 25 (Apr. 3, 1776) (reproducing a legislative council note stating it was not a mistake for it to have amended an appropriation bill).

(196.) S.C. H.R. JOUR. (1776-80), supra note 1, at 29-30 (Apr. 3, 1776) (adopting appropriations measure the senate had amended).

(197.) S.C. H.R. JOUR. (1776-80), supra note 1, at 160 (Oct. 17, 1776). It is unclear whether the amendments then immediately added had been those inserted by the legislative council. The council did, however, accede to the lower house bill. Id. at 162.

(198.) E.g., S.C. H.R. JOUR. (1776-80), supra note 1, at 187 (reproducing senate president's note of Sept. 1, 1779). For another use of "schedule" to describe a list of proposed amendments, see, for example, S.C. H.R. JOUR. (1782), supra note 1, at 82 (Feb. 14, 1782).

(199.) E.g., S.C. H.R. JOUR. (1776-80), supra note 1, at 189 (Sept. 2, 1779).

(200.) S.C. H.R. JOUR. (1776-80), supra note 1, at 191 (Sept. 2, 1779) (reproducing note of senate president Charles Pinckney); id. at 192 (Sept. 3, 1779) (reproducing note of house speaker Thomas Farr).

(201.) S.C. H.R. JOUR. (1776-80), supra note 1, at 198 (Sept. 5, 1779). This session was held on a Sunday, a phenomenon I had not seen before within the Founding-Era records. It may reflect the seriousness of the military situation.

(202.) S.C. H.R. JOUR. (1776-80), supra note 1, at 202-03 (Sept. 6, 1779) (reproducing letter of senate president Charles Pinckney).

(203.) S.C. H.R. JOUR. (1776-80), supra note 1, at 211 (Sept. 8, 1779) (reporting Senate action on tax bill).

(204.) S.C. H.R. JOUR. (1776-80), supra note 1, at 214 (Sept. 9, 1779) (reporting House resolution).

(205.) S.C. H.R. JOUR. (1776-80), supra note 1, at 293 (Feb. 11, 1780).

(206.) S.C. H.R. JOUR. (1776-80), supra note 1, at 279 (Feb. 5, 1780) (reporting origin of a "tax for the publick service," by Rep. David Ramsey). See also id. at 283, 287-90, 292-93 (various dates) (reporting later proceedings in the bill).

(207.) S.C. H.R. JOUR. (1776-80), supra note 1, at xvi (editors' introduction).

(208.) 1 FARRAND'S RECORDS, supra note 1, at 23 (reporting claim by Charles C. Pinckney that in South Carolina the rule "has been a source of pernicious disputes" and that as a practical matter, the Senate gives "informal schedules of amendments" to the House).

(209.) Id. at 233 (indicating Butler's contempt for tacking).

(210.) 2 Farrand'S Records, supra note 1, at 279-80 (reporting remarks by John Rutledge).

(211.) Id. at 279-80 (reporting remarks by John Rutledge).

(212.) Va. CONST, of 1776 (unnumbered) ("All laws shall originate in the House of Delegates, to be approved of or rejected by the Senate, or to be amended, with consent of the House of Delegates; except money-bills, which in no instance shall be altered by the Senate, but wholly approved or rejected.").

(213.) The proceedings are reported in Va. H.D. JOUR, at 10 (Nov. 3, 1777) (reproducing petition by Johnson to the House), 20 (Nov. 11, 1777) (reproducing the House committee report recommending payment to Johnson), 32 (Nov. 18, 1777) (announcing that the Senate has agreed to the Johnson bill with an amendment), 52 (Dec. 1, 1777) (mentioning the Senate amendments to the Johnson bill), 54-55 (Dec. 4, 1777) (reproducing Jefferson's reasons against Senate amendment power and his willingness to go to conference), 56 (Dec. 4, 1777) (stating that the Senate agrees to go to conference with the House on the Johnson amendments), 70-71 (Dec. 9, 1777) (reproducing the Senate argument that money bills do not include appropriations), 108-11 (Jan. 9, 1778) (reproducing Jefferson's detailed reasons against a Senate power to amend), 131 (Jan. 23, 1778) (reproducing Jefferson's report that the House had delivered its reasons against Senate amendment to the Senate).

See also Va. H.D. JOUR., supra note 1, at 15 (May 21, 1778) (reproducing the House committee report recommending payment to Johnson), 29 (May 30, 1778) (reporting House tabling of the Senate amendment to Johnson bill), 34-35 (June 1, 1778) (stating that the House rejected the effort by the Senate to amend, and that the House adjourns after agreeing to a conference).

(214.) Thomas Jefferson, Report of Committee of House of Delegates on Right of Senate to Alter Money Bills, The Papers of Thomas Jefferson Digital Edition (Barbara Oberg & J. Jefferson Looney ed.) http://www.rotunda.upress.virginia.edu/founders/ default.xqy?feys=TSJN-index-21-14-672-2-3 [http://perma.cc/3K73-6RXK]. This document is instructive reading for anyone who thinks Jefferson was merely a revolutionary firebrand rather than a careful lawyer.

(215.) Editorial Note: The Petition of Thomas Jefferson, FOUNDERS ONLINE, NATIONAL ARCHIVES, http://foundersarchives.gov/documents/lefferson01-02-02-0032-0001 [http:// perma.cc/7D37-WFX2].

(216.) Va. Sen. Jour., supra note 1, at 12 (May 30, 1778), 18 (May 30 & June 1, 1778) (apparently signifying that the House and Senate reached a deal on the Johnson bill whereby the House passed a new bill incorporating the Senate amendments, and the Senate objected but accepted).

There had been two conferences, and apparently the parties agreed for the future to avoid this procedure by allowing the Senate to amend appropriation bills.

(217.) E.g., Va. SEN. Jour, at 30, supra note 1, (Nov. 18, 1778) (reporting House approval of Senate appropriation amendments).

(218.) E.g., VA. H.D. JOUR, at 34, supra note 1, (Nov. 26, 1783):
   The House proceeded to consider the amendments of the Senate, to
   the bill "declaring tobacco, hemp, flour or deer skins, a payment
   of certain taxes;" and the same were read.

   The first amendment being read a second time;

   A motion was made, and the question being put, that it is the
   opinion of this House, that the said bill being a money bill, the
   Senate hath no power to amend or alter, but must wholly approve or
   reject the same,

   It was resolved in the affirmative.

   On a motion made,

   Resolved, That this House doth disagree to the amendments of the
   Senate to the said bill.


(219.) See 2 Farrand'S Records, supra note 1, at 276-77 (reporting remarks by James Madison).

(220.) N.J. CONST, of 1776, art. VI.

(221.) 1776 N.J. PROCEEDINGS, supra note 1, at 198 (Oct. 9, 1777) (referencing "an Act to raise a Fund by general Taxation for defraying the necessary Expences [sic] of the State"); 1780 N.J. PROCEEDINGS, supra note 1,. at 55 (Dec. 12, 1780) (appropriations bill).

(222.) 1777 N.J. PROCEEDINGS, supra note 1, at 32 (Nov. 27, 1777) (reporting "A Message from the Council" by a Mr. Cooper); id. (stating Council had passed tax bill "without any Amendment").

(223.) 1776 N.J. PROCEEDINGS, supra note 1, at 39 (Oct. 8, 1776) (reporting Council rejection of "support of government" bill as a whole); 1782 id. at 70-71 (Dec. 21, 1782) (reporting a sample tax bill for 1783), 85 (Dec. 24, 1782) (reporting Council rejection of tax bill), 88 (Dec. 26, 1782) (reporting another Council rejection just before end of session).

(224.) E.g., 1776 N.J. PROCEEDINGS, supra note 1, at 44 (Nov. 21, 1776) (reporting that Assembly passed amendments made by Council to bill setting fees to be collected for commissions), 46 (Nov. 22, 1776) (reporting that Assembly agreed to 8 of 9 Council amendments), 47-48 (Nov. 25, 1776) (reporting that Assembly agreed to conference report on last amendment), 110 (Mar. 15, 1777) (reporting that Council amended bill to give salary to secretary in lieu of fees on commissions). See also 1778 N.J. PROCEEDINGS, supra note 1, at 58 (Dec. 11, 1778) (setting forth an example of Council amendment of money bill, although amendments were rejected by Assembly):
   The Bill, intitled, An Act for the Relief and Support of maimed and
   disabled Officers and Soldiers, and of the Widows and Children of
   such as fall in Battle, or otherwise lose their Lives in the
   military Service, was read, with the Amendments made thereto by the
   Council; and the said Amendments being again read in their Places,
   on the Question, Whether the House agrees to the said Amendments?
   It passed in the Negative.

   Ordered,

   That Mr. Cripps and Mr. Ford do carry back to the Council the said
   Bill, with their Amendments, and acquaint them that this House doth
   not agree to the said Amendments, but do adhere to their Bill.


(225.) 1778 N.J. PROCEEDINGS, supra note 1, at 52 (Dec. 9, 1778) (reporting that "The Bill, intitled, An Act for appointing a Commissary of Prisoners for the State of New-Jersey, and vesting him with certain Powers, was read the second Time; On the Question, Whether the said Bill is a Money-Bill, and therefore improper to be originated in Council? It was carried in the Negative....").

(226.) 1780 N.J. PROCEEDINGS, supra note 1, at 57-58 (Dec. 13, 1780) (reproducing "A Message from the Council"). The houses went to conference on the issue, id. at 58 (Dec. 14, 1780), but it appears that the Council prevailed.

(227.) MD. CONST, of 1776, art. XI.

(228.) See 1780 MD. H.D. JOUR., supra note 1, at 99 (Jan. 26, 1781) (reporting that the House resolved not to consider whether a measure is a money bill so as to avoid disputes among the chambers); 1782 MD. H.D.J. at 49-50 (Dec. 11, 1782) (reporting message from the Senate stating that an appropriation bill may be considered by the House as a money bill that it cannot amend, so it merely refused assent and sent its reasons in a separate letter); 1782 MD. H.D.J. at 87-88 (Jan. 12, 1783) (reproducing letter from House to Senate saying that funding the civil list was a money bill, but that the House agreed to a Senate amendment and would send a separate bill for that purpose).

(229.) See, e.g., 1777 MD. H.D. JOUR., supra note 1, at 69 (Apr. 3, 1777) (reporting Senate refusal to approve a bill because of an alleged tack); 1779 MD. H.D. JOUR, at 176-79 (May 16, 1780) (reproducing a Senate remonstrance against adding tender law onto a money bill, and claiming it was an "unconstitutional tack").

(230.) E.g., 1779 MD. H.D. JOUR., supra note 1, at 151 (May 6, 1780).

(231.) E.g., 1779 Md. H.D. JOUR., supra note 1, at 154 (May 8, 1780).

(232.) E.g., 1782 MD. H.D. JOUR., supra note 1, at 80 (Jan. 9, 1783) (reporting House refusing to consider Senate amendments on the ground that a defense funding bill was a money bill).

(233.) 1782 Md. H.D. JOUR., supra note 1, at 84 (Jan. 10, 1783).

(234.) 1785 Md. H.D. JOUR., supra note 1, at 187-88 (Mar. 9, 1786) (reproducing message from the Senate referring to the inconvenience of the ban on amendments, and that a bill for regulation of poor is not a money bill); see also id. at 188 (adding in the letter that only bills that assess taxes and provide for "the general support of government" were money bills, excluding regulation of commerce and morals, and concluding that bills for raising money on the inhabitants of a particular county for that county or local purpose were not money bills).

(235.) 2 FARRAND'S RECORDS, supra note 1, at 280 (reporting remarks by Charles Carroll and James McHenry).

(236.) Mass. Const, of 1780, ch. I, [section] 3, art. VII.

(237.) N.H. CONST, of 1784, Part II, "The Form of Government" ("ALL money bills shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills.").

(238.) PA. CONST, of 1790, art. I, [section] 20 ("All bills for raising revenue shall originate in the house of representatives; but the senate may propose amendments, as in other bills.").

(239.) PERRY, supra note 1 (unpaginated) (defining "amend" and "amendment").

(240.) E.g., 1 CONN. Records, supra note 1, at 76 (Nov. 19, 1776); 8 R.I. RECORDS, supra note 1, at 460 (Oct. 26, 1778); 9 R.I. RECORDS, supra note 1, at 277 (July 7, 1777).

(241.) A caveat: The legislative journals for most of the states are incomplete. The problem is especially acute in the South, due in part to the ravages of the 1779-81 British invasion. See supra note 1 for sources surveyed for Connecticut, Massachusetts, Maryland, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, South Carolina, and Virginia. Other resources used were as follows:

Delaware: Minutes of the Council of the Delaware State, from 1776 to 1792 (1886).

Georgia: 1 & 2 The Revolutionary Records of the State of Georgia (1908).

Pennsylvania: Pa. Gen. Assem. Min., supra note 1; 10-11 Pa. ARCHIVES (1854-55) and 14-15 MINUTES OF THE SUPREME EXECUTIVE COUNCIL OF PENNSYLVANIA (1853).

Vermont: 3 STATE PAPERS OF VERMONT (1924) (covering the period 1778-81).

(242.) E.g., 8 R.I. RECORDS, supra note 1 at 193-94 (General Assembly Proceedings, April 17, 1777) ("It is voted and resolved, that Jonathan Arnold, Henry Ward and Daniel Mowry, Esqs., be, and they are hereby, appointed a committee to revise, alter and amend an act for the relief of tender consciences ....").

(243.) E.g., 2 The Revolutionary Records of the State of Georgia 297 (1908) (reporting a small insertion by way of amendment); 1 CONN. RECORDS, supra note 1, at 532-33 (Feb. 12, 1778) (reproducing general assembly's recommendation of amendments to the proposed Articles of Confederation); 21 N.H. PAPERS, supra note 1, at 368 (Dec. 30, 1788) (reproducing a senate amendment changing the period of a tax from four to three years).

(244.) See, e.g., VA. H.D. JOUR., supra note 1, at 106 (Jan. 5, 1785) (listing extensive amendments to a bill "for enabling British merchants to recover their debts from the citizens of this Commonwealth"); id. at 96-97 (Dec. 17, 1785) (listing extensive amendment to an election bill).

(245.) Va. H.D. JOUR., supra note 1, at 117 (Dec. 29, 1785). VA. SEN. JOUR., supra note 1, at 61 (Dec. 23, 1785) (reporting an amendment that read, "Strike out the whole of the first page, and to the end of the 22d line of the second page," and then inserting new matter).

(246.) However, an amendment to a revenue measure might have a regulatory effect. See, e.g., 3 STATE PAPERS OF VERMONT 118-19 (1924) (recording a Vermont measure amending a statute [rather than a pending bill] to exempt those who supported "some sort of religious worship" from paying taxes for the support of town-designated denominations).

(247.) Va. H.D. JOUR., supra note 1, at 36 (June 6, 1780) (reporting first a small amendment being made, and then a substitute.):

Mr. Page reported, according to order, the resolutions agreed to yesterday by the committee of the whole House on the state of the Commonwealth; and he read the same in his place, and afterwards delivered them in at the clerk's table, where the same were again read, and are as followeth:
   Resolved, that it is the opinion of this committee, That ample and
   certain funds ought to be established, for sinking the quota of the
   continental debt due from this State in ten years.

   Resolved, that it is the opinion of this committee, That certain
   funds ought to be established for furnishing to the continent the
   quota of this State, for the support of the war for the current
   year.

   Resolved, that it is the opinion of this committee, That a specific
   tax ought to be laid for the use of the continent, in full
   proportion to the abilities of the people,

   And the first resolution being read a second time, the amendment
   following was proposed to be made thereunto:

   To strike out the word "ten," and insert "fifteen."

   And the question being put, that the House do agree to the said
   amendment,

   It was resolved in the affirmative.

   The amendment following, was also proposed to be made to the said
   resolution:

   To strike out from the word "that," to the end of the resolution,
   and to insert "the act of Congress of the 18th of March last, ought
   to be adopted, that this Commonwealth will take upon itself its due
   proportion of the one hundred and eighty millions of dollars,
   issued by Congress, and recommended to be speedily called in by
   taxes or otherwise; and that the General Assembly will redeem or
   call in the same, and also establish certain funds for the
   redemption of this Commonwealth's due proportion of the new money
   to be issued in lieu thereof, in the manner and time proposed by
   Congress, as far as the circumstances of this Commonwealth will
   admit."

   And the question being put, that the House do agree to the said
   amendment,

   It passed in the negative.

   Ayes 25. Noes 59.


(248.) Va. H.D. Jour., supra note 1, at 58 (Dec. 19, 1780).

(249.) Id.

(250.) On this and other Founding-Era conventions, see Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution's "Convention for Proposing Amendments," 65 FLA. L. REV. 615 (2013).

(251.) 1779 N.J. Proceedings, supra note 1, at 48 (Nov. 26, 1779).

(252.) Id.

(253.) Id.

(254.) 1781 N.J. PROCEEDINGS, supra note 1, at 28-29 (Oct. 5, 1781).

(255.) 12 N.C RECORDS, supra note 1, at 62 (May 2, 1777).

(256.) Id. at 63.

(257.) Id. at 189-90 (Dec. 9, 1777).

(258.) John C. Cavanagh, Convention of 1788, Encyclopedia of North Carolina (2006), available at ncpedia.org/govemment/Convention-1788 [http://perma.cc/4JV2-52XJ].

(259.) 22 N.C. State Records, supra note 1, at 36-53 (reproducing proceedings of second session).

(260.) Id. at 47-48 (reproducing proceedings of second session).

(261.) Id. at 45-46 (reproducing proceedings of second session).

(262.) Id. at 46-53 (reproducing proceedings of second session).

(263.) Pa. Gen. Assem. MIN., supra note 1, at 74 (Dec. 2, 1785). The practice in America of amending by complete substitute was reflected in this definition of "amendment" by Alexander Contee Hanson: "Amendment, in parliamentary language, means either addition, or diminution, or striking out the whole, and substituting something in its room." Aristides, Remarks on the Proposed Plan of a Federal Government, Jan. 31-Mar. 27, 1788, reprinted in 11 DOCUMENTARY HISTORY, supra note 1, at 224, 232 (defending the Constitutional Convention's substitution of a new Constitution for the Articles of Confederation).

(264.) MASS. H.R. Jour., supra note 1.

(265.) MASS. H.R. JOUR., supra note 1, at 22 (May 31, 1784) (referencing a committee report making real estate liable for payment of taxes when tenants leave a town); id. at 23 (same date) (first reading of act for assessing and collecting taxes in plantations); id. at 75 (June 19, 1784) (reporting a house resolve directing the Treasurer to pay to Jabez Hatch certain money out of continental tax, to be paid to creditors was sent by the House to the Senate).

(266.) Id. at 41 (June 5, 1784) (reporting that committee of both houses had drafted an impost bill, which was read for the first time, but does not previously appear in the records).

(267.) Id. at 59 (June 12, 1784) (reporting passage of impost law and that it was "Sent up for concurrence").

(268.) Id. at 76 (June 19, 1784) (reporting that senate amended and passed a house lottery bill).

(269.) E.g., Id. at 73 (June 18, 1784) (reporting that house prepared a schedule "for the articles to be returned in order to take a new valuation of the several towns in the Commonwealth," then sent it to the senate, which "Read and concurred, as taken into a new draft."); id. at 87 (June 23, 1784) (reporting that senate approved land cession bill, "as taken into a new draft"); id. at 93 (June 26, 1784) (reporting, "Read and concurred as taken into a new draft. Sent down for concurrence"); id. at 197 (Nov. 9, 1784) (reporting, "Read and concurred as taken into a new draft.") This was a staple part of Massachusetts legislative practice over the years, see, e.g., id. at 134 (Apr. 6, 1770), and it meant that the bill was re-written entirely.

(270.) Compare 20 J. CONT'L CONG. 606-07 (June 6, 1781) with the proffered amendment. Id. at 613 (June 8, 1781).

(271.) 8 N.H. Papers, supra note 1, at 8 (Jan. 9, 1776) (showing that the first set of rules for house of representatives had no provision regarding amendment); id. at 740 (Dec. 20, 1777) (adding four rules, but none on amendments); id. at 919-21 (Dec. 20 1781) (showing the rules revised, included the following: "9. While a question is before the House no motion shall be received, unless to amend or commit the same, or to postpone the consideration of the main question, or for having the yeas and nays entered on the Journal.").

(272.) Id. at 70-71 (including among the rules of house adopted June 8, 1784 the following: "SEVENTH. While a question is before the House, no motion shall be received, unless to amend or commit the same, or to postpone the consideration of the main question, or for having the yeas and nays entered on the journal.").

(273.) Id. at 339-40 (June 2, 1785) (same).

(274.) Id. at 620 (June 10, 1786) (stating, "7th. When a motion is before the House, no other motion shall be received, unless to amend, divide, commit, postpone, reduce the same to writing, or to have the yeas and nays entered on the journals." See also 21 id. at 43 (June 8, 1787) (same rule): id. at 298 (June 8, 1788) (same rule).

(275.) Id. at 591 (June 5, 1789).

(276.) E.g. COLO. Rev. Stat. [section] 38-41-108 (granting a short adverse possession period to persons who possess land "under claim and color of title, made in good faith").

(277.) BAILEY, supra note 1 (defining the noun "colour," in addition to other meanings, as "pretence or show"); Dyche & PARDON, supra note 1 (defining the verb "colour" as "to set a good face upon a bad matter; to conceal or hide the truth; to act contrary to justice"); JOHNSON, supra note 1 (including among the definitions of the verb, "To palliate; to excuse. To make plausible."); Kenrick, supra note 1 (including among other definitions of the noun, "The representation of any thing [sic] superficially examined,--Concealment; palliation; excuse; superficial cover.--Appearance; pretence; false shew"); PERRY, supra note 1 (including among other definitions of the noun, "concealment; excuse"); SHERIDAN, supra note 1 (including among other definitions of the noun, "the representation of any thing [sic] superficially examined; palliation; appearance; false shew"); BARLOW, supra note 1 (including among other definitions of the noun, "In Law, the probable pleas of a defendant to an action brought, which in fact, is false).

(278.) 20 J. CONT'L CONG. 479 (May 4, 1781).

(279.) PA. GEN. ASSEM. MIN., supra note 1, at 26 (Nov. 19, 1784).

(280.) Id. at 62 (Nov. 26, 1785). The next appearance in the official minutes of legislative rules was during the 1787 session, and the change was retained. Id. at 38 (Nov. 10, 1787).

(281.) 22 N.C. RECORDS, supra note 1, at 41 (Nov. 17, 1789) ("XX. When any question is in debate, it shall be determined before any new motion shall be admitted, unless to amend it, to adjourn from day to day, or for the previous question.").

(282.) 21 N.C. Records, supra note 1, at 735-36 (Nov. 1, 1790) ("13th. Whenever any question is in debate before the house, it shall be determined or postponed before any new motion shall be introduced, unless to amend it, to adjourn, or for the previous question.").

(283.) 1 ANNALS of Cong. 100 (Apr. 7, 1789) ("No new motion or proposition shall be admitted, under color of amendment, as a substitute for the motion or proposition under debate.").

(284.) E.g., N.J. PROCEEDINGS 8 (Sept. 23, 1782) (offering an amendment "striking out the Word 'amend,' and inserting in its Stead the Word 'repeal'... to which the House agreed"); 10 R.I. RECORDS, supra note 1, at 268 (Feb. 1788) (reproducing words of a petition seeking "repeal or amendment" of a law).

(285.) See supra notes 224-38 and accompanying text. Zotti & Schmitz, supra note 1, at 104-05 are generally in accord, but they assume that substitute bills are always non-germane.

(286.) Barack Obama, The Audacity of Hope 91 (2006) (stating that because of differences among founders, "it is unrealistic to believe that a judge, two hundred years later, can somehow discern the original intent of the Founders or ratifiers").

(287.) See, e.g., Natelson, Trust, supra note 1 (discussing the nearly unanimous view of the founders that government was a fiduciary trust). In many instances, moreover, disagreement induced the Constitution's advocates to issue authoritative representations of meaning that, because the ratifiers relied on them, we many rely on as well. E.g., Natelson, General Welfare, supra note 1 (concluding that the ratifying public accepted the Federalists' explanations of the General Welfare Clause).

(288.) See supra Parts II & III.

(289.) 1 FARRAND'S RECORDS, supra note 1, at 20-22 (reproducing Virginia Plan).

(290.) HUTSON, Supplement, supra note 1, at 189. The powers he assigned to the Senate were treaties, appointment of the judiciary, and the sending of ambassadors. Id.

(291.) 2 FARRAND'S RECORDS, supra note 1, at 230 (reporting remarks by Edmund Randolph).

(292.) 2 FARRAND'S Records, supra note 1, at 262,273.

(293.) E.g., Gregory S. Ahern, The Spirit of American Constitutionalism: John Dickinson's Fabius Letters, 11 HUMANITAS 57 (1998), available at http://www.nhinet.org/ humsub/1 l-2.htm [http://perma.cc/D682-9ZT5] ("Perhaps closest of all to Dickinson's view of man and society, however, is that of Edmund Burke.").

(294.) For a brief time he served simultaneously as president of both states. Natelson, Dickinson, supra note 1, at 425.

(295.) Natelson, Dickinson, supra note 1, at 457-58.

(296.) HUTSON, Supplement, supra note 1, at 88. An earlier version of the scheme for an upper house appears id. at 85.

(297.) 2 FARRAND'S RECORDS, supra note 1, at 276 (Aug. 13, 1787) (reporting remarks by James Madison).

(298.) 2 FARRAND'S Records, supra note 1, at 276.

(299.) Id. at 278 (reporting remarks by John Dickinson).

(300.) 2 Farrand'S Records, supra note 1, at 278-79:
   Mr Randolph regarded this point as of such consequence, that as he
   valued the peace of this Country, he would press the adoption of
   it. We had numerous & monstrous difficulties to combat. Surely we
   ought not to increase them. When the people behold in the Senate,
   the countenance of an aristocracy; and in the president, the form
   at least of a little monarch, will not their alarms be sufficiently
   raised without taking from their immediate representatives, a right
   which has been so long appropriated to them.--The Executive will
   have more influence over the Senate, than over the H. of
   Reps--Allow the Senate to originate in this case, & that influence
   will be sure to mix itself in their deliberations & plans. The
   Declaration of War he conceived ought not to be in the Senate
   composed of 26 men only, but rather in the other House. In the
   other House ought to be placed the origination of the means of war.
   As to Commercial regulations which may involve revenue, the
   difficulty may be avoided by restraining the definition to bills
   for the mere or sole, purpose of raising revenue. The Senate will
   be more likely to be corrupt than the H. of Reps and should
   therefore have less to do with money matters. His principal object
   however was to prevent popular objections against the plan, and to
   secure its adoption.


(301.) 1 Farrand'S RECORDS, supra note 1, at 234 (Madison, June 13, 1787) (reporting remarks by Charles C. Pinkney); 1 id. at 527 (Madison, July 5, 1787) (reporting remarks by James Madison).

Opponents of a lower-house origination rule observed that in Britain, the King could resolve inter-chamber conflict by dissolving or proroguing Parliament, but that American executives generally had no such prerogative. 1 FARRAND'S RECORDS, supra note 1, at 545 (Madison, July 6, 1787) (reporting remarks by Gouvemeur Morris); 1 FARRAND'S RECORDS, supra note 1, at 546 (Madison, July 6, 1787) (reporting remarks by James Wilson); Luther Martin, Genuine Information VI, BALTIMORE Md. Gazette, Jan. 15, 1788, 15 Documentary History, supra note 1, at 374-75.

(302.) See supra Part HI. For further discussion of the amendment qualifier, see Part V.

(303.) See supra Part III.A.

(304.) U.S. CONST, art. I, [section] 8, cl. 3 ("To regulate Commerce"); art. I, [section] 8, c. 12 ("To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years."); art. I, [section] 9, cl. 6 ("No Preference shall be given by any Regulation of Commerce or Revenue"); art. I, [section] 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.").

(305.) Hence the memorable warning by "Brutus," possibly Robert Yates of New York, who had been a constitutional convention delegate, and was perhaps the best of the Anti-Federalist writers:
   The general legislature will be empowered to lay any tax they chuse
   [sic], to annex any penalties they please to the breach of their
   revenue laws; and to appoint as many officers as they may think
   proper to collect the taxes.

   This power, exercised without limitation, will introduce itself
   into every corner of the city, and country--It will wait upon the
   ladies at their toilett [sic], and will not leave them in any of
   their domestic concerns; it will accompany them to the ball, the
   play, and the assembly; it will go with them when they visit, and
   will, on all occasions, sit beside them in their carriages nor will
   it desert them even at church; it will enter the house of every
   gentleman, watch over his cellar, wait upon his cook in the
   kitchen, follow the servants into the parlour, preside over the
   table, and note down all he eats or drinks; it will attend him to
   his bedchamber, and watch him while he sleeps; it will take
   cognizance of the professional man in his office, or his study; it
   will watch the merchant in the counting-house, or in his store; it
   will follow the mechanic to his shop, and in his work and will
   haunt him in his family, and in his bed; it will be a constant
   companion of the industrious farmer in all his labour, it will be
   with him in the house, and in the field, observe the toil of his
   hands, and the sweat of his brow; it will penetrate into the most
   obscure cottage; and finally, it will light upon the head of every
   person in the United States. To all these different classes of
   people, and in all these circumstances, in which it will attend
   them, the language in which it will address them, will be GIVE!
   GIVE!


Brutus VI, N.Y.J., Dec. 27, 1787, reprinted in 15 DOCUMENTARY HISTORY, supra note 1, at 110, 112-14.

(306.) 2 FARRAND'S RECORDS, supra note 1, at 278-79 (reporting Edmund Randolph as stating, "[i]n the other House ought to be placed the origination of the means of war"); cf. An American Citizen IV, 13 DOCUMENTARY History, supra note 1, at 431, 435, Oct. 21, 1787 (citing the military appropriations clause and stating that "the original grant of the supplies must be made by the House of Representatives, the immediate delegates of the people"); Aratus, To the People of Maryland, 11 id. at 30, 37-38 (stating that the Origination Clause will enable the people to better control any standing army).

(307.) 2 Farrand's Records, supra note 1, at 263 (Madison, Aug. 13, 1787) (reporting remarks of Edmund Randolph); id. at 278 (Aug. 13, 1787) (reporting remarks by John Dickinson).

(308.) See, e.g., Cincinnatus IV, To James Wilson, Esquire, N.Y.J., Nov. 22, 1787, 19 Documentary History, supra note 1, at 281-83 (warning of potential aristocracy); Arthur Lee to Edward Rutledge, Oct. 29, 1787, 8 DOCUMENTARY HISTORY, supra note 1, at 131 (stating of the Constitution, "All this is calculated to ensure a feeble Representative & a powerful Senate--that is to sacrifise [sic] the Democracy to the Aristocracy.").

(309.) See, e.g., Marcus I (James Iredell), NORFOLK AND PORTSMOUTH J., Feb. 20, 1788, 16 DOCUMENTARY HISTORY, supra note 1, at 161, 164-67 (using the Origination Clause to counter Anti-Federalist charges of "aristocracy").

(310.) The distinction between the federal legislative chambers would be far greater than that prevailing in any state. For example, only three states provided for upperhouse terms longer than a year, and all were shorter than the six-year term for U.S. Senators; Virginia (three years), New York (four), and Maryland (five).

(311.) Compare U.S. Const, art. I, [section] 2, cl. 2 (setting forth qualifications of Representatives) with U.S. CONST, art. I, [section] 3, cl. 3 (setting forth qualifications of Senators).

(312.) 1 FARRAND'S RECORDS, supra note 1, at 233 (reporting remarks by Elbridge Gerry); 1 id. at 544 (reporting remarks by George Mason); 2 id. at 274 (reporting remarks of George Mason). See also Americanus II, Va. INDEPENDENT CHRONICLE, Dec. 19, 1787, reprinted in 8 DOCUMENTARY HISTORY, supra note 1, at 244, 248 (stating, "That taxation and representation are inseparable, and that each should bear an exact ratio to the other are self-evident truths .... The house of representatives, which has the exclusive right of originating Bills of taxation, is composed of members elected directly by the people in the most exact proportion.") (italics in original).

(313.) U.S. CONST, art. I, [section] 3, cl. 1 ("The Senate of the United States shall be composed of two Senators, from each State, chosen by the Legislature thereof, for six Years").

(314.) 2 FARRAND'S RECORDS, supra note 1, at 279 (reporting remarks by Edmund Randolph). On the founders' concept of "corruption," see Natelson, Trust, supra note 1, at 1116, 1120.

(315.) Fabius 11 (John Dickinson), PA. MERCURY, Apr. 15, 1788, 17 DOCUMENTARY History, supra note 1, at 120, 124 (stating that Representatives "by holding their offices for two years, as thereby they will acquire better information, respecting national affairs") (italics in original).

(316.) As Benjamin Franklin phrased it, "those who feel, can best judge." 1 FARRAND'S RECORDS, supra note 1, at 546 (reporting remarks by Franklin).

(317.) U.S. CONST, art. II, [section] 2, cl. 2 (granting the Senate power to advise and consent to the appointment of federal officers and the making of treaties).

(318.) 1 FARRAND'S Records, supra note 1, at 233, 545 (July 6, 1787) (reporting remarks by Elbridge Gerry).

(319.) 2 FARRAND'S RECORDS, supra note 1, at 224 (reporting remarks by George Mason).

(320.) Thus, at the Constitutional Convention, George Mason argued that a bare negative was a very different thing from that of originating bills; and that if the Senate had the power of initiating it could reduce the House to insignificance. He compared the potential situation to the Parliament of Paris and to Poyning's Law. By the latter statute, no Irish Parliament could be held until the proposed legislation had been sent to England and returned under the English great seal. 2 FARRAND'S RECORDS, supra note l, at 274 (reporting remarks by George Mason). See also 2 FARRAND'S Records, supra note 1, at 297 (reporting remarks by Nathaniel Gorham).

(321.) Elbridge Gerry to William Cushing, Jan. 21, 1788, 6 Documentary HISTORY, supra note 1, at 1265, 1270.

(322.) 2 Farrand'S RECORDS, supra note 1, at 297 (reporting remarks by George Mason); The FEDERALIST No. 66, at 403-04 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (stating, that "to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives.").

Several founders pointed to Britain for corroboration. 2 FARRAND'S Records, supra note 1, at 278 (Aug. 13, 1787) (reporting remarks by John Dickinson); THE FEDERALIST No. 58, at 359 (James Madison) (Clinton Rossiter ed., 1961) (comparing the Constitution's origination rule to the privilege of the House of Commons, by which it had greater prerogatives than other branches of government).

(323.) U.S. Const, pmbl.

(324.) Id.

(325.) 2 Farrand'S Records, supra note 1, at 278.

(326.) 1 FARRAND'S RECORDS, supra note 1, at 233 (reporting remarks by Pierce Butler); Luther Martin, Genuine Information VI, Baltimore Md. Gazette, Jan. 15, 1788, reprinted in 15 DOCUMENTARY HISTORY 374-75.

(327.) 1 FARRAND'S RECORDS, supra note 1, at 233 (reporting remarks by James Madison); Luther Martin, Genuine Information VI, BALTIMORE MD. GAZETTE, Jan. 15, 1788, reprinted in 15 DOCUMENTARY HISTORY, supra note 1, at 374-75. Cf. 1 FARRAND'S RECORDS, supra note 1, at 544 (reporting observation of Hugh Williamson that if bills originate in Senate, they will be "more narrowly watched"); 1 id. at 234 (reporting remarks by Hugh Williamson).

(328.) E.g., BAILEY, supra note 1 (unpaginated) (defining "extravagant" as "Wandering out of due bounds, roving beyond due limits; irregular; wild; wasteful, prodigal").

(329.) 2 FARRAND'S RECORDS, supra note 1, at 276 reporting James Madison as so arguing).

(330.) 1 FARRAND'S RECORDS, supra note 1, at 544 (reporting James Wilson as saying, "the least numerous body was the fittest for deliberation; the most numerous for decision."); 2 id. at 224 (reporting remarks by James Wilson); 2 id. at 279 (reporting remarks by John Rutledge). See also JAMES HARRINGTON, THE COMMONWEALTH of Oceana and a System of Politics 24 (J.G.A. Pocock ed., 1992) (1656), a book of political theory popular with the Founders. The idea was that the Senate would deliberate and pose the final decision, aye or nay, to the executive branch:
   Dividing and choosing, in the language of a commonwealth, is
   debating and resolving; and whatsoever upon debate of the senate is
   proposed to the people, and resolved by them, is enacted ... by the
   authority of the fathers [i.e., the senate] and the power of the
   people, which concurring make a law.


Id.

(331.) 1 FARRAND'S RECORDS, supra note 1, at 527 (reporting remarks by James Madison); 1 id. at 545 (reporting remarks by Charles Pinckney).

(332.) 1 FARRAND'S RECORDS, supra note 1, at 544-45 (reporting remarks by James Wilson); 2 id. at 279 (reporting remarks by John Rutledge).

(333.) 1 FARRAND'S RECORDS, supra note 1, at 543-44 (reporting remarks by Gouverneur Morris).

(334.) 1 FARRAND'S RECORDS, supra note 1, at 233 (reporting remarks by Pierce Butler and James Madison).

(335.) 1 FARRAND'S RECORDS, supra note 1, at 545 (reporting remarks by Gouverneur Morris).

(336.) 2 FARRAND'S RECORDS, supra note 1, at 274-75 (reporting remarks of James Wilson); 1 id. at 545M6; 2 id. at 276 (Aug. 13, 1787) (reporting remarks by Gouverneur Morris); 2 id. at 224 (reporting remarks by John Mercer).

(337.) Apparently, there had been no such problems in states like New York and Connecticut that allowed Senate origination. 1 FARRAND'S RECORDS 234 (reporting remarks by Roger Sherman about the Connecticut experience). I have found none in those states (Massachusetts, New Hampshire, and Delaware) that permitted upper-house amendment.

(338.) The delegates at the drafting convention understood that an origination clause should include a remedy for tacking. See 1 FARRAND'S RECORDS, supra note 1, at 546 ("Mr. Martin said that it was understood in the Committee that the difficulties and disputes which had been apprehended, should be guarded against in the detailing of the plan"); 2 id. at 263 (reporting remarks by Edmund Randolph).

(339.) On revenue as a single broad subject in America, see supra notes 4 & 5 and accompanying text. Cf. supra note 98 and accompanying text (reproducing remarks in Parliament by Richard Brinsley Sheridan on the latitude of revenue amendments).

(340.) 1 FARRAND'S RECORDS, supra note 1, at 234 (reporting remarks by Charles C. Pinkney).

(341.) See supra Parts II & III.

(342.) Letter from Elbridge Gerry to William Cushing, Jan. 21, 1788, reprinted in 6 DOCUMENTARY HISTORY, supra note 1, at 1265, 1270-71 (subjoined "statement of facts"). This echoed one of Madison's Convention arguments against the Origination Clause. 1 FARRAND'S Records, supra note 1, at 233-34 (reporting himself as saying "The Gentleman in pursuance of his principle ought to carry the restraint to the amendment; as well as the originating of money bills. Since, an addition of a given sum wd. be equivalent to a distinct proposition of it.").

(343.) K. R. Constantine Gutzman, William Grayson, AMERICAN NATIONAL BIOGRAPHY ONLINE. Grayson had been given the honor of carrying from the house of delegates to the senate the resolution appointing commissioners to the famous Potomac River conference with Maryland. 1781-86 Md. H.D. JOUR. 540 (Dec. 13 & 14, 1784).

(344.) 3 Elliot's Debates, supra note 1, at 377.

(345.) See supra notes 247-49 and accompanying text.

(346.) Id.

(347.) Letter from James Madison to George Washington, Oct. 18, 1787, 8 DOCUMENTARY HISTORY, supra note 1, at 76; 13 DOCUMENTARY HISTORY, supra note 1, at 408 (referring to "the paltry right of the Senate to propose alterations in money bills").

(348.) 3 Elliot's Debates, supra note 1, at 377. Cf. 1 Farrand's Records, supra note 1, at 545 (stating "Mr. Gerry would not say that the concession was a sufficient one on the part of the small States. But he could not but regard it in the light of a concession.").

(349.) See supra notes 276-77 and accompanying text (discussing substitute bills under colour of amendment").

(350.) 2 FARRAND'S RECORDS, supra note 1, at 276 (emphasis added).

(351.) U.S. Const, art. I, [section] 8, cl. 1.

(352.) U.S. Const, art. I, [section] 8, cl. 3 (the Commerce Clause) together with id. at cl. 18 (the Necessary and Proper Clause). See Gonzales v. Raich, 545 U.S. 1, 16 (2005).

(353.) See supra notes 8 & 73 and accompanying text (defining money bill as, in part, one denying revenue and reporting Commons rejection as breach of privilege of bill reducing charges).

(354.) H.R. 3590, 111th Cong. (2009); Sissel v. U.S. Dept, of Health and Human Servs., 951 F. Supp. 2d 159, 161 (D.D.C. 2013), affirmed, 760 F.3d 1, 10 (D.C. Cir. 2014).

(355.) The Congressional Budget Office did not score H.R. 3590 in its original form. I was unable to find the purpose of the corporate tax acceleration on the website of the House Democratic Caucus, but the website of the House Republican Caucus confirms that it served as a revenue offset. See http://www.gop.gov/bill/h-r-3590-servicemembers-home-ownership-tax-act-of-2009/ [http://perma.cc/FZN4-8KWA].

(356.) See Plaintiff Matt Sissel's Opposition to Motion to Dismiss at 4, Sissel v. U.S. Dept, of Health and Human Servs., 951 F. Supp. 2d 159 (D.D.C. 2013) (No. 101263 (BAH)) (stating, "insofar as Section 5000A(b) imposes a tax on persons who fail to obtain 'minimum essential coverage/ it is invalid because it did not originate in the House as required by the Origination Clause").

(357.) See, e.g., Patient Protection and Affordable Care Act, Pub. L. No. 111-148, [section] 9001, 124 Stat. 119, 847-53 (2010) (imposing excise tax on high cost employersponsored health coverage); [section] 9004 (increasing tax on distributions from certain health savings accounts and medical savings accounts); [section] 9007(b) (imposing taxes on hospitals that fail to meet certain requirements); [section] 9015 (imposing hospital insurance tax on high-income taxpayers); [section] 9017 (imposing excise tax on elective cosmetic medical procedures).

The law also alters the tax code in other ways, e.g., id. [section] 1401 (granting certain tax credits); [section] 9013 (modifying itemized deduction for medical expenses).

(358.) The penalty's principal regulatory purpose should have disqualified it as a tax, but the Supreme Court's short discussion of the tax issue evinces no awareness of the founders' tax-regulatory distinction. Nat'l Fed'n Indep. Bus. v. Sebelius (NF1B), 132 S. Ct. 2566, 2594-99 (2012) (opinion for the Court); see also id. at 2651-55 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting). The Court relied instead on its own tax-versus-regulation precedents. Some of that jurisprudence accords with the founders' distinction. Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) (holding that a "tax" not designed to raise revenue is not a tax for constitutional purposes); Millard v. Roberts, 202 U.S. 429 (1906) (holding that a regulatory measure that produces only incidental revenue is not a "tax"); Twin City Nat'l Bank v. Nebecker, 167 U.S. 196 (1897) (holding that incidental generation of revenue did not prevent the measure from being regulatory when adopted pursuant to a valid regulatory purpose); Rodgers v. United States, 138 U.S. 992 (6th Cir. 1943) (same).

However, the precedent closest in concept to NFIB fails to apply the founders' distinction. United States v. Kahriger, 345 U.S. 22, 28 (1953) (holding a gambling tax valid because it produced revenue, despite a dominant regulatory purpose, and adding in dicta that even a measure raising only "negligible" revenue qualified as a tax).

(359.) NFIB, 132 S. Ct. at 2593.

(360.) The United States Court of Appeals for the D.C. Circuit recently held, seemingly in defiance of the Supreme Court, that the penalty for purchasing insurance was not a revenue bill. Sissel, 760 F.3d at 7. If the court of appeals is correct, however, then adding the penalty was not a valid amendment.

The court of appeals stated that because the PPACA's penalty was not a revenue measure because it was designed as a regulation. Yet the Supreme Court had specifically ruled the regulatory function to be ultra vires, thereby distinguishing the case from those in which the Supreme Court upheld measures enacted for valid regulatory purposes. United States v. Munoz-Flores, 495 U.S. 385 (1990) (assessments levied as part of constitutionally-enacted criminal measure); Millard v. Roberts, 202 U.S. 429 (1906) (upholding levy as incident to creation of national currency); Twin City Nat'l Bank v. Nebecker, 167 U.S. 196 (1897) (same). The court of appeals did not explain how a measure can be legitimated by serving an illegitimate purpose.

The result of the appeals court's reasoning is that (1) Congress is permitted to advance an impermissible regulatory function via a tax that (2) is exempt from the rules applying to taxes precisely because it advances an impermissible regulatory function!

Surely that is not what the Constitution means.

(361.) E.g., Patient Protection and Affordable Care Act, Pub. L. No. 111-148, [section][section]1001, 1003, 124 Stat. 119, 130-38, 139M0 (2010); id., [section][section]1511-1515 (imposing additional regulations on employers).

(362.) E.g., id. at [section] 3511 (purportedly authorizing certain appropriations).

(363.) Today, health and insurance regulations are justified under the Commerce Power, but such regulations are not within the scope of the Commerce Power as originally understood. Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847 (2003); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101 (2001); Robert G. Natelson, The Legal Meaning of "Commerce" In the Commerce Clause, 80 St. JOHN'S L. REV. 789 (2006). Indeed, the Supreme Court did not treat most forms of insurance as "Commerce" until 1944. David B. Kopel & Robert G. Natelson, Health Insurance is not "Commerce," Nat'l L.J., Mar. 28, 2011.

Robert G. Natelson was a law professor for twenty-five years at three different universities and is currently is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. His works and biography are listed at http://constitution.i2i.org/about [http://perma.cc/4Z4G-FCKX].

The author wishes to thank the following for invaluable assistance: The Independence Institute, Denver, Colorado, and its research director, Dave Kopel; Virginia Dunn, Archives & Library Reference Services Manager, Library of Virginia; Joanna Innes, Fellow and Tutor in Modern History Somerville College, University of Oxford, England; Seth Barrett Tillman, Lecturer in Law, National University of Ireland Maynooth; Jane Thompson, Associate Director of Faculty Services and Research, William A. Wise Library, University of Colorado; and Daniel Smyth, Editor, LibertyBlog.org.

All interpretations and any mistakes are the author's own.
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Title Annotation:III. Founding-Era Legislative Practice: American Constitutions and Legislatures B. How the American States Adopted New Rules through VI. Conclusion: The Origination Clause and Some Implications for the PPACA, with footnotes, p. 669-709
Author:Natelson, Robert G.
Publication:Harvard Journal of Law & Public Policy
Date:Mar 22, 2015
Words:26754
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