THE FOUNDERS' ORIGINATION CLAUSE AND IMPLICATIONS

THE FOUNDERS’ ORIGINATION CLAUSE AND

IMPLICATIONS FOR THE AFFORDABLE CARE ACT

ROBERT G. NATELSON

This Article is the first comprehensive examination of the original

legal force of the Constitution’s Origination Clause, drawing not

merely on the records of the 1787–90 constitutional debates, but on

Founding-Era British and American legislative practice and other

sources. This Article defines the bills governed by the Origination

Clause, the precise meaning of the House origination requirement,

and the extent of the Senate’s amendment power.

For illustrative purposes, the Article tests against its findings the

currently-litigated claim that the financial penalty for failure to ac-

quire individual health insurance under the Patient Protection and

Affordable Care Act is invalid as a Senate-originated “tax.” The Arti-

cle concludes that this “tax” was a valid Senate amendment to a

House-adopted revenue bill. The Article also concludes, however, that

the amendments that added the PPACA’s regulatory provisions and

appropriations were outside the Senate’s amendment power.

NTRODUCTION ............................................................ 633

I. T

HE UNLOVED CLAUSE? SURVEY OF THE

CONSTITUTIONAL CONVENTION AND

RATIFICATION DEBATES ........................................ 636

* 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 Inde-

pendence Institute, Denver, Colorado, and its research director, Dave Kopel; Vir-

ginia 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.

630 Harvard Journal of Law & Public Policy [Vol. 38

A. The Constitutional Convention ................... 636

B. The Ratification Debates ............................... 640

C. Non-Conclusions ........................................... 646

II. F

OUNDING-ERA LEGISLATIVE PRACTICE: THE

BRITISH PARLIAMENT ............................................ 646

A. How Parliamentary Practice Influenced

the Founders .................................................. 646

B. Parliament and the Power of the Purse ...... 649

1. The Scope of the Term “Money Bill” ... 649

2. Hotch-Potch Bills and Tacking .............. 652

3. The Dispute Over Amendments by

the Lords .................................................. 653

4. What Was An “Amendment?” ............. 657

C. Summary of British Practice ........................ 664

III. F

OUNDING-ERA LEGISLATIVE PRACTICE:

AMERICAN CONSTITUTIONS AND

EGISLATURES ........................................................ 665

A. American Constitution-Drafting:

Background Information .............................. 665

B. How the American States Adopted New

Rules ................................................................ 669

C. How the American Rules Continued to

Evolve .............................................................. 672

D. The Scope of “Amendment” in American

Practice ............................................................ 680

E. Summary of American Practice ................... 690

IV. W

HAT THE CONSTITUTIONAL DEBATES TELL US

ABOUT THE REASONS FOR HOUSE ORIGINATION

AND

THEIR SIGNIFICANCE .................................... 691

A. The Policies Behind House Origination ..... 691

B. Significance of the Policies Behind House

Origination ..................................................... 700

V. W

HAT THE CONSTITUTIONAL DEBATES TELL US

ABOUT THE SCOPE OF AN “AMENDMENT” .......... 700

A. The Policies Served By the Amendment

Qualifier .......................................................... 700

B. How Broad Was the Amendment

Qualifier? ....................................................... 703

VI. C

ONCLUSION: THE ORIGINATION CLAUSE AND

SOME IMPLICATIONS FOR THE PPACA ................ 705

No. 2] The Founders' Origination Clause 631

***

1. Bibliographical Note: This footnote collects those sources cited more than once,

including prior published research by the author.

Convention Proceedings

HE 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 F

ARRAND’S RECORDS].

Dictionaries (all unpaginated)

OHN ASH, THE NEW AND COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE

(1775) [hereinafter A

SH]; N. BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DIC-

TIONARY

(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 DON-

ALDSON

]; THOMAS DYCHE & WILLIAM PARDON, A NEW GENERAL ENGLISH DIC-

TIONARY

(16th ed. 1777) [hereinafter DYCHE & PARDON]; SAMUEL JOHNSON, A

DICTIONARY OF THE ENGLISH LANGUAGE (8th ed. 1786) [hereinafter JOHNSON];

ILLIAM KENRICK, A NEW DICTIONARY OF THE ENGLISH LANGUAGE (1773) [here-

inafter K

ENRICK]; WILLIAM PERRY, THE ROYAL STANDARD ENGLISH DICTIONARY

(1st ed. 1788) [hereinafter P

ERRY]; THOMAS SHERIDAN, A COMPLETE DICTIONARY

OF THE

ENGLISH LANGUAGE (3d ed. 1789) [hereinafter SHERIDAN].

Legislative and other Governmental Publications

British: W

ILLIAM COBBETT, PARL. HIST. ENG. (vols. 13–28, 1803–16) [hereinafter COB-

BETT

]; 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 PARLIAMEN-

TARY

Federal: J

OURNALS OF THE CONTINENTAL CONGRESS 1774–1789 (1904–37) [hereinafter J.

CONT’L CONG.].

Connecticut: 1-5 T

HE PUBLIC RECORDS OF THE STATE OF CONNECTICUT (Charles J. Hoad-

ly & Leonard Woods Labaree eds. 1894–1943) [hereinafter C

ONNECTICUT RECORDS].

Massachusetts: A

JOURNAL OF THE HONORABLE HOUSE OF REPRESENTATIVES OF THE

COMMONWEALTH OF MASSACHUSETTS. BEGUN AND HELD AT BOSTON IN THE COUNTY OF

SUFFOLK, ON WEDNESDAY THE TWENTY-SIXTH DAY OF MAY, ANNO DOMINI, 1784 [herein-

after M

ASS. H.R. JOUR.].

Maryland: The Senate and House of Delegates Journals are cited M

D. H.D. JOUR. and

D. SEN. JOUR. Each session is free standing with its own pagination.

New Hampshire: E

ARLY STATE PAPERS OF NEW HAMPSHIRE (Albert Stillman Batchellor

ed., 1891–92) [hereinafter N.H.

PAPERS].

New Jersey: V

OTES AND PROCEEDINGS OF THE GENERAL ASSEMBLY OF THE STATE OF

NEW-JERSEY [hereinafter N.J. PROCEEDINGS].

New York: V

OTES AND PROCEEDINGS OF THE ASSEMBLY OF THE STATE OF NEW-

ORK, from 1780 through 1790 [hereinafter N.Y. ASSEM. JOUR.] & JOURNAL OF THE

632 Harvard Journal of Law & Public Policy [Vol. 38

SENATE OF THE STATE OF NEW YORK [hereinafter N.Y. SEN. JOUR.], both available at

the Gale Database, Eighteenth Century Collections Online.

North Carolina: T

HE STATE RECORDS OF NORTH CAROLINA (Walker Clark ed., 1895–

1905) [hereinafter N.C.

RECORDS].

Rhode Island: 8–10 R

ECORDS OF THE STATE OF RHODE ISLAND AND PROVIDENCE PLAN-

TATIONS IN

NEW ENGLAND (John Russell Bartlett ed., 1863–65) [hereinafter R.I. RECORDS].

South Carolina: J

OURNALS 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

SOUTH CAROLINA, JAN. 8, 1782–FEB. 26, 1782 (A.S. Salley, Jr. ed., 1916) [hereinafter S.C.

H.R. JOUR. (1782)].

Pennsylvania: M

INUTES OF THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF PENN-

SYLVANIA

(1784–89) [hereinafter PA. GEN. ASSEM. MIN.].

Virginia: J

OURNAL OF THE HOUSE OF DELEGATES OF THE COMMONWEALTH OF VIRGINIA

(1827) [hereinafter V

A. 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

OGER ACHERLEY, THE BRITTANIC CONSTITUTION (1759) [hereinafter ACHERLEY].

EAN-LOUIS DE LOLME, THE CONSTITUTION OF ENGLAND (David Lieberman ed., 2007)

(1771) [hereinafter D

E LOLME].

John Dickinson, Letters from a Farmer in Pennsylvania, reprinted in E

MPIRE AND NATION 1

(Forrest McDonald ed., 2d ed. 1999) [hereinafter D

ICKINSON].

HE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (Merrill

Jensen, John P. Kaminski, & Gaspare J. Saladino eds., 1976–2012) [hereinafter D

OCUMEN-

TARY

HISTORY].

AUL EINZIG, THE CONTROL OF THE PURSE: PROGRESS AND DECLINE OF PARLIAMENT’S

FINANCIAL CONTROL (1959) [hereinafter EINZIG].

YDNEY GEORGE FISHER, THE EVOLUTION OF THE CONSTITUTION OF THE UNITED STATES

(1897) [hereinafter F

ISHER].

LEXANDER HAMILTON, JAMES MADISON & JOHN JAY, THE FEDERALIST (George W.

Cary & James McClellan eds., 2001) [hereinafter T

HE FEDERALIST].

OHN HATSELL, PRECEDENTS OF PROCEEDINGS IN THE HOUSE OF COMMONS (2d ed,

1785) (3 vols.) [hereinafter H

ATSELL].

AVID 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 H

AYTON].

HOMAS 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 I

ND. L.J. 239 (2005) [here-

inafter Krotoszynski, Reconsidering].

Rebecca M. Kysar, The “Shell Bill” Game: Avoidance and the Origination Clause, 91 W

ASH.

U. L. REV. 659 (2014) [hereinafter Kysar, Shell Bill].

AUL MASON, MASON’S MANUAL OF LEGISLATIVE PROCEDURE (2010) [hereinafter MA-

SON

’S MANUAL].

No. 2] The Founders' Origination Clause 633

INTRODUCTION

This Article reconstructs the original legal force of the Origi-

nation Clause. The original legal force of a document or provision

in a document is how the courts would have applied it immedi-

ately following its adoption. This Article relies on Founding-Era

interpretive methods to recover the original legal force.

The Origination Clause is one of several conditions for valid

enactment appearing in the same section of the Constitution.

Besides House origination of revenue bills, the conditions in-

clude passage by both the Senate and the House of Representa-

tives, presentment to the President, and either the President’s

signature or a subsequent two-thirds approval, on roll call

votes, by each chamber of Congress.

It is clear from the text

that a bill not complying with these procedures is not a valid

law. In considering the Origination Clause, the Supreme Court

has said as much.

The Origination Clause is immediately relevant because of lit-

igation ensuing from the Supreme Court’s decision to sustain as

a revenue-raising “tax”

the financial penalty for failing to com-

ply with the individual insurance mandate of the Patient Protec-

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 P

ENN. ST. L.

REV. 115 (2003) [hereinafter Natelson, Dickinson].

Robert G. Natelson, The Founders’ Hermeneutic: The Real Original Understanding of Origi-

nal Intent, 68 O

HIO ST. L.J. 1239 (2007) [hereinafter Natelson, Founders’ Hermeneutic].

OBERT 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].

UPPLEMENT 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 Origination Clause: Meaning, Precedent,

and Theory from the 12th to the 21st Century, 3 B

R. J. AM. LEG. STUDIES 71 (2014) [hereinafter

Zotti & Schmitz].

2. See generally Natelson, Founders’ Hermeneutic, supra note 1.

3. U.S.

CONST. art. I, § 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).

634 Harvard Journal of Law & Public Policy [Vol. 38

tion and Affordable Care Act (PPACA).

Several challengers to

the penalty contend that the PPACA effectively arose in the Sen-

ate by reason of a substitute bill,

rather than in the House,

thereby rendering the penalty-tax void for non-compliance with

the Origination Clause.

In defending the law, the government

has responded that substitution of this kind is common within

the legislative process and within the Senate’s power to amend.

This Article is not designed primarily to address the validity

of the PPACA but to define the rules the Founders’ Origination

Clause imposed on congressional procedures. After the rules

are defined, the Article briefly examines their implications for

the PPACA controversy.

There has been no comprehensive treatment of the Founders’

Origination Clause. Indeed, only a handful of scholars have

examined its original meaning,

usually as an introduction to

7. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1501(b),

124 Stat. 119, 244 (2010).

8. Cf. Thomas L. Jipping, Comment, TEFRA and the Origination Clause: Taking the

Oath Seriously, 35 B

UFF. 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.1 (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. 1:10-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 Y

ALE 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 T

HE HERITAGE GUIDE TO THE CONSTITUTION 85–86 (2005); Adrian Ver-

No. 2] The Founders' Origination Clause 635

later jurisprudence or current issues. Most of their discussion

of original meaning has been limited to summary examinations

of the views of the Framers and a few other Founders.

This

approach to originalist research is always problematic but par-

ticularly so in the case of the Origination Clause, which has

very deep roots in prior history and in legislative practice. As

shown by Part I of this Article, the constitutional debates di-

vorced from the larger context tell us very little.

Most prior treatments also suffer from methodological prob-

lems common among legal writers untrained in historical

method.

Perhaps the most serious of these is a form of anach-

ronism: using sources dating from well after the Founding Era

as evidence of the constitutional bargain.

To avoid anachro-

nism, this Article generally avoids sources arising after May 29,

1790, the day Rhode Island became the thirteenth state to ap-

prove the Constitution.

Part I recounts the constitutional debates of 1787–90. This

Part covers some of the same ground covered by prior writers,

but in richer detail. Part I renders it obvious that even a de-

tailed examination of the constitutional debates, when per-

formed in isolation, leaves key questions unanswered. This is

because our record of those debates leaves many of the Found-

ers’ assumptions unstated. We can clarify those assumptions

only by exploring the Founders’ understanding of history and

their own experiences.

Part II explains that British parliamentary practice heavily in-

fluenced the Founding generation, and investigates how Par-

liament dealt with issues of origination and amendment. Part

III then examines relevant history in America: the pre-

meule, 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 anal-

ysis, the latest contribution to the literature, is representative in this regard. Pro-

fessor 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 N

ATELSON, 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).

636 Harvard Journal of Law & Public Policy [Vol. 38

Revolutionary constitutional controversies that defined for

Americans “Bills for raising Revenue” and the American legis-

lative practice that confirmed the parliamentary meaning of

“originate” and of “Amendments.” Equipped with this context,

Part IV turns once again to the constitutional debates. It identi-

fies the policies behind House origination and the precise

meaning and scope of the requirement that “Bills for raising

Revenue . . . originate in the House of Representatives.” Part V

does the same for the amendment qualifier: “but the Senate

may propose or concur with Amendments as on other Bills.”

In addition to defining the meaning of the Origination

Clause, Parts I–V demonstrate that the Origination Clause

serves as a fixed rule of balance between the chambers of Con-

gress imposed to promote good government and to protect in-

dividual liberty. The power of each house to adopt its own in-

ternal rules

did not include authority to alter the balance

between the houses.

Finally, the Article’s Conclusion summa-

rizes the lessons of the Article and their implications for the

constitutionality of the PPACA.

I. T

HE UNLOVED CLAUSE? SURVEY OF THE CONSTITUTIONAL

CONVENTION AND RATIFICATION DEBATES

A. The Constitutional Convention

The Origination Clause almost did not make it into the Con-

stitution. Neither the Virginia Plan nor the New Jersey Plan

contained origination language. This is understandable because

the former envisioned both legislative chambers being appor-

tioned by population and the latter envisioned a unicameral

legislature. Yet resistance to House origination continued

throughout most of the Constitutional Convention.

15. U.S. CONST. art. I, § 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 cancel-

lation 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.

No. 2] The Founders' Origination Clause 637

On June 13, 1787, after the delegates had been in full session

for over two weeks,

Elbridge Gerry of Massachusetts moved

to “restrain the Senatorial branch from originating money

bills.”

His apparent goal was to encourage larger states to re-

cede from their demand that representation in both legislative

chambers be based on population or on property.

Gerry’s proposal ran into a buzzsaw of opposition from the

convention’s “nationalists.” These delegates supported a very

strong national government and, by extension, proportionate

representation in both chambers. Pierce Butler and Charles

Cotesworth Pinkney of South Carolina, James Madison of Vir-

ginia, Rufus King of Massachusetts, and even the moderate

Roger Sherman of Connecticut all spoke against the proposal.

Not only did they reject House origination as compensation,

but some claimed it was useless or even harmful.

Gerry’s mo-

tion was trounced, seven states to three.

Nevertheless, proposals for an exclusive House privilege to

initiate money bills recurred several times, usually as append-

ages to the issue of legislative representation. On July 5, 1787,

an ad hoc committee appointed to resolve the issue of legisla-

tive representation offered its report. The committee had

reached a compromise whereby the lower chamber—or, as it

was commonly called early in the proceedings, the “first

branch”—was to be based primarily on population while the

upper chamber, the “second branch”, was to be based on equal

representation of states. As compensation to the larger states

for agreeing to equal state representation in the Senate, the

committee report provided for exclusive House origination of

money bills.

The report proposed that:

all bills for raising or appropriating money, and for fixing

the Salaries of the Officers of the Governt. of the U. States

shall originate in the 1st branch of the Legislature, and shall

not be altered or amended by the 2d branch: and that no

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).

638 Harvard Journal of Law & Public Policy [Vol. 38

money shall be drawn from the public Treasury, but in pur-

suance of appropriations to be originated in the 1st branch.

The committee language largely mirrored common depictions

of British parliamentary practice.

Because the advocates of proportionate representation were

holding out for proportionate representation, they were not

interested in compensation. Arguing against the committee re-

port were several of the previous opponents, now joined by

Gouverneur Morris and James Wilson, both of Pennsylvania.

Supporters, such as Virginia’s George Mason and Delaware’s

Gunning Bedford, Jr., had little to say on the merits, preferring

to appeal primarily to the need for compromise. The conven-

tion opted to retain the House-origination part of the commit-

tee report, but the vote was equivocal: five states in favor, three

opposed, with three delegations evenly divided.

In late July, the convention sent its list of formal resolutions

to the Committee of Detail so that committee could prepare the

first draft of a constitution.

The committee presented its draft

on August 6.

In accordance with the convention’s vote for the

July 5 compromise, the committee draft provided that “All bills

for raising or appropriating money, and for fixing the salaries

of the officers of the Government, shall originate in the House

of Representatives, and shall not be altered or amended by the

Senate.”

On August 8, however, by a tally of seven states to

four the convention approved a motion from South Carolina’s

Charles Pinckney to strike this provision.

The following day, Virginia Governor Edmund Randolph

“expressed his dissatisfaction” with the prior day’s vote “con-

22. Id. (internal quotation marks omitted).

23. See infra Part II.B.

24. F

ARRAND’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.

No. 2] The Founders' Origination Clause 639

cerning money bills, as endangering the success of the plan [the

Constitution], and extremely objectionable in itself; and gave

notice that he should move for a reconsideration of the vote.”

On August 11, Randolph formally added an amendment to the

House origination proposal limiting it to revenue bills only,

and qualifying it with a senatorial power to amend.

The debate over the Randolph proposal displayed a far more

able defense of House origination than mounted heretofore. It

included thoughtful speeches by Randolph, Virginia’s George

Mason, and Delaware’s John Dickinson.

Still, Randolph lost,

seven states to four.

On August 15, Caleb Strong of Massachusetts proposed orig-

ination language during a discussion of the Treaty Clause, only

to see the issue postponed.

On September 5, another ad hoc

committee appointed to mediate differences recommended

origination language incorporating Randolph’s proposal: “All

bills for raising revenue shall originate in the House of Repre-

sentatives, and shall be subject to alterations and amendments

by the Senate.”

After another postponement,

the convention

returned to the topic on September 8.

The delegates replaced

“and shall be subject to alterations and amendments by the

Senate” with language from the 1780 Massachusetts constitu-

tion.

The convention voted for the final Origination Clause by

a count of nine states to two.

30. FARRAND’S RECORDS, supra note 1, 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, Dickin-

son, supra note 1. This debate is discussed further infra Part IV.A.

33. F

ARRAND’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. M

ASS. CONST. of 1780, ch. 1, § 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.

640 Harvard Journal of Law & Public Policy [Vol. 38

B. The Ratification Debates

More determinative of the original legal force than the Fram-

ers’ debates is the understanding of the Constitution’s 1,648

ratifiers.

The Origination Clause was the topic of considerable

discussion both among the ratifiers and among the orators,

pamphleteers, and essayists who sought to influence them. At

first appearance, however, the extant material seems less help-

ful than such material often is.

One reason the extant material initially seems unhelpful is

that participants in the ratification process—even those on the

same side—exhibited markedly different views about the im-

portance of the Origination Clause. Federalists and Anti-

Federalists not only differed from each other, but they differed

among themselves. The differences seem to have been rooted

largely in political expediency. In general, the debate on the

Origination Clause displayed the following pattern:

First: Federalists promoting the Constitution to the ratifying

public in more populous states (for example, Virginia,

Penn-

40. Natelson, Founders’ Hermeneutic, supra note 1, at 1288–89.

41. See, e.g., Robert G. Natelson, Proposing Constitutional Amendments by Conven-

tion: Rules Governing the Process, 78 T

ENN. L. REV. 693, 723–32 (2011) (showing a

unified Founding-Era understanding as to the limitability of an Article V “Con-

vention for proposing Amendments”); Robert G. Natelson, The Agency Law Ori-

gins of the Necessary and Proper Clause, 55 C

ASE W. RES. L. REV. 243, 296–312 (2004)

(discussing almost complete consistency among the representations from propo-

nents of the Necessary and Proper Clause).

42. An American, To Richard Henry Lee II, Jan. 3, 1788, reprinted in 15 D

OCUMEN-

TARY

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 T

HE 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

No. 2] The Founders' Origination Clause 641

sylvania,

Massachusetts

) represented House origination as a

valuable addition to the authority of the House of Representa-

tives, the legislative chamber in which populous states would

enjoy more influence.

Illustrative is the comment of “Valeri-

us,” a Virginia supporter of the Constitution:

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.

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

43. See, e.g., One of the People, P

A. GAZETTE, Oct. 17, 1787, reprinted in 2 DOCU-

MENTARY

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 D

OCUMENTARY 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, M

ASS. GAZETTE, Dec. 18, 1787, reprinted in 5 DOCUMEN-

TARY

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, V

A. INDEPENDENT CHRONICLE, Dec. 19, 1787, reprinted

in 8 D

OCUMENTARY HISTORY, supra note 1, at 248:

642 Harvard Journal of Law & Public Policy [Vol. 38

The senate has the power of originating all bills, except reve-

nue bills, in common with the house of representatives, and

no bill can pass into a law without the approbation of two

thirds of both houses. From this exclusion of the senate with

respect to money bills, it is plain that this body does not pos-

sess such extensive legislative power, as the house of repre-

sentatives.

In addition to touting House origination, large state Federal-

ists deprecated the significance of the amendment qualifier.

Virginia Federalist James Madison labeled it “paltry.”

Second: Large state Anti-Federalists minimized the value of

House origination or criticized the allegedly wide scope of the

amendment qualification.

Thus, one group of Virginia Anti-

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, V

A. INDEPENDENT CHRONICLE, Jan. 23, 1788, reprinted in 8 DOCU-

MENTARY

HISTORY, supra note 1, at 316 (internal quotation marks omitted).

47. Letter from James Madison to George Washington (Oct. 18, 1787), reprinted

in 8 D

OCUMENTARY HISTORY, supra note 1, at 76, also reprinted in 13 DOCUMEN-

TARY

HISTORY, supra note 1, at 408 (referring to “the paltry right of the Senate to

propose alterations in money bills”). See also Brutus, V

A. J. (Dec. 6, 1787), reprinted

in 8 D

OCUMENTARY 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 E

LLIOT’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 D

OCUMENTARY HISTORY, supra note 1, at 43

(“The Senate have the Power of altering all Money-Bills, and of originating Ap-

propriations 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 Repre-

sentatives of the People, or amenable to them.”); James Bowdoin to James de Caledo-

nia, P

HILA. INDEPENDENT GAZETTEER, Feb. 27, 1788, reprinted in 16 DOCUMENTARY

HISTORY, supra note 1, at 240 (fictional letter about how Federalists are creating an

No. 2] The Founders' Origination Clause 643

Federalists argued that the Senate should have no power to

amend at all.

Other large state Anti-Federalists contended that

the amendment qualifier left any benefits from House origination

uncertain. For example, a Massachusetts Anti-Federalist wrote:

The Senate have [sic] the power of altering all money bills,

and of originating appropriations of money, and the salaries

of the officers of their own appointment . . . although they

are not the Representatives of the people, or amenable to

them.—These, with their other great powers (viz. their pow-

ers in the appointment of Ambassadours, and all publick of-

ficers, in making treaties, and in trying all impeachments)

their influence upon and connection with the Supreme Ex-

ecutive from these causes, their duration of office, and their

being a constant existing body almost continually setting,

joined with their being one compleat [sic] branch of the Leg-

islature, will destroy any balance in the government, and

enable them to accomplish what usurpations they please

upon the rights and liberties of the people.

aristocracy, assisted by the power of the Senate to alter money bills); Cincinnatus

IV, To James 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 D

OCUMENTARY HISTORY, supra note 1, at 272 (a Pennsylvania Anti-

Federalist) (“That our boasted republic will ere long wear the face of an aristocra-

cy 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 E

LLIOT’S DE-

BATES

, 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, V

A. 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. M

ASS. CENTINEL (Nov. 21, 1787), reprinted in 4 DOCUMENTARY HISTORY, su-

pra note 1, at 288. See also James Monroe, Some Observations on the Constitution,

644 Harvard Journal of Law & Public Policy [Vol. 38

Third: In small states (Maryland, Delaware, and New Jersey)

the roles were reversed. Small state Federalists wished to

demonstrate that the Senate, where their states would enjoy

equal representation, would be an important part of the gov-

ernment, so they deemphasized House origination while em-

phasizing the Senate’s amendment authority. Maryland’s

James McHenry, who had attended the Constitutional Conven-

tion, told his state’s house of delegates that, “The Larger States

hoped for an advantage by confirming this [origination] privi-

ledge [sic] to that Branch where their numbers predominated,

and it ended in a compromise by which the Lesser States ob-

tained a power of amendment in the Senate . . . .”

Fourth: Small-state Anti-Federalists denigrated House origi-

nation. They argued that the Senate contribution to revenue

bills should not have been limited to amendments—meaning

that the Senate should have been given full origination power.

Luther Martin, the bibulous but durable attorney general of

Maryland,

was a disgruntled delegate at the framing conven-

tion. During the ratification debates he attacked the alleged in-

significance of the Senate:

[T]he Senate—the members of which will, it may be pre-

sumed, be the most select in their choice, and consist of men

the most enlightened, and of the greatest abilities, who, from

the duration of their appointment and the permanency of

their body, will probably be best acquainted with the com-

mon concerns of the States, and with the means of providing

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), re-

printed in 14 D

OCUMENTARY 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).

No. 2] The Founders' Origination Clause 645

for them—will be rendered almost useless as a part of the

legislature; and that they will have but little to do in that ca-

pacity except patiently to wait the proceedings of the House

of representatives, and afterwards examine and approve, or

propose amendments.

There were a few exceptions to the foregoing patterns. John

Dickinson was a Delaware Federalist who praised the House’s

origination power in his Fabius essays.

Perhaps this was be-

cause he addressed a national audience. Madison uncharacter-

istically wandered. In Philadelphia, he opposed House origina-

tion as either harmful or useless.

During the ratification fight,

he acted more like a typical large state Federalist—praising

House origination and belittling the amendment qualifier.

During the Virginia ratifying convention, he conceded that the

Senate’s power to amend was very broad: narrower than a

power to originate, but not “considerab[ly]” so.

53. Luther Martin, Genuine Information, BALTIMORE MD. GAZETTE (Dec. 28, 1787),

reprinted in 1 E

LLIOT’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 D

OCUMEN-

TARY

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, P

A. MERCURY (Apr. 15, 1788), reprinted in 17 DOCUMENTARY HISTO-

, supra note 1, at 124 (stating, “These representatives will also command the pub-

lic 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 F

ARRAND’S RECORDS, supra note 1, at 527 (arguing that it was useless); 2

ARRAND’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

OCUMENTARY 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 E

LLIOT’S DE-

BATES

, 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 ex-

ception 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.

646 Harvard Journal of Law & Public Policy [Vol. 38

C. Non-Conclusions

Though interesting, the foregoing account of the framing and

ratification tells us little about the meaning, scope, and purpose

of the Origination Clause. From that account, the Clause appears

to be merely a sop from small states to large states. Discussion

on the merits of the Clause seems contradictory and driven sole-

ly by political expediency. Key portions of the Clause—Bills for

raising Revenue, originate, Amendments—all remain undefined.

The constitutional debates are only fruitful in light of the

larger context. That is why the larger context is so important.

Only after exploring that context can we return fruitfully to the

constitutional debates.

II. F

OUNDING-ERA LEGISLATIVE PRACTICE:

HE BRITISH PARLIAMENT

A. How Parliamentary Practice Influenced the Founders

American political leaders knew something of the British

Parliament. During the colonial era, Parliament produced

much of the law affecting British America, and Parliament’s

overreach provoked the Revolution. Some American leaders

learned about Parliament from direct experience. Starting in

1757, Benjamin Franklin served as a colonial agent in London

A Native of Virginia, Observations upon the Proposed Plan of Federal Government (Apr.

2, 1788), reprinted in 9 D

OCUMENTARY 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 jour-

nals for both the House of Commons and the House of Lords; (3) William Cobbett’s

ARLIAMENTARY HISTORY, a collection of floor debates, with some commentary; and

(4) the P

ARLIAMENTARY 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 Lon-

don. A caveat: eighteenth century parliamentary records must be used with cau-

tion. 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.

No. 2] The Founders' Origination Clause 647

for many years.

John Dickinson studied in the Middle Tem-

ple, one of the four Inns of Court for training barristers. His

letters from London to his father are filled with reflections on

parliamentary politics.

Six other Framers

and several major

ratification figures

were also members of an elite coterie of

American lawyers educated at Inns.

Among the latter was

Virginia’s William Grayson,

whom we shall meet again.

Many Founders who had not spent time in London were ex-

posed to parliamentary institutions and procedures from popu-

lar writings

and from service in, or observation of, American

colonial and state legislatures.

During the eighteenth century, Parliament consisted of the

Crown and two legislative chambers: the House of Commons

and the House of Lords. The House of Commons was elected

every seven years, unless sooner dissolved by the Crown,

61. J. A. Leo Lemay, Benjamin Franklin (1706-1790), OXFORD DICTIONARY OF NA-

TIONAL

BIOGRAPHY (stating that Franklin served as agent for four colonies: Penn-

sylvania, 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, P

A. MAG. HIST. & BIOGRAPHY, 417–20 (H.

Trevor Colbourn 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 rati-

fying convention); id. at 216 (listing Alexander White, a leading Federalist

spokesman in the same state).

65. C

HARLES 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, A

MERICAN NATIONAL BIOG-

RAPHY

ONLINE.

67. See infra Part V.C.

68. See, e.g., D

E LOLME, supra note 1. Popular in America were the books by the

Whig historian Catherine Macaulay. See, e.g., Letter from Benjamin Rush to Cathe-

rine Macaulay, Jan. 18, 1769, reprinted in 2 T

HE FOUNDERS’ CONSTITUTION 375–76

(Philip B. Kurland & Ralph Lerner eds., 1987). Rush was a signer of the Declara-

tion of Independence, a member of Congress, America’s leading physician, and a

delegate to the Pennsylvania ratifying convention.

69. 1 W

ILLIAM BLACKSTONE, COMMENTARIES *182.

648 Harvard Journal of Law & Public Policy [Vol. 38

while the House of Lords was mostly hereditary.

Before inde-

pendence, the governments of Britain’s American colonies mim-

icked that structure: they featured colonial governors, usually

appointed by the Crown; popularly elected lower chambers; and

less democratic upper chambers. After independence, the bi-

cameral structure remained intact

in all states except Georgia,

Pennsylvania, and the independent state of Vermont.

Colonial and state legislative procedures also mimicked

those of Parliament.

Although it is not strictly relevant to our

investigation, we might note that those procedures later be-

came pervasive in the federal Congress and remain so in Amer-

ican legislative bodies even today.

70. Certain peers from the northern part of the country were elected by other

Lords. 1 W

ILLIAM BLACKSTONE, COMMENTARIES *163, reprinted in 2 THE FOUND-

ERS

’ 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. G

A. CONST. of 1777, art. II; PA. CONST. of 1776; § II; VT. CONST. of 1777, ch. II, § II.

73. S. M. Pargellis, The Procedure of the Virginia House of Burgesses (pt. 1), 7 W

M. &

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

M. & MARY C. Q. HIST. MAG. 143, 156 (1927) (noting the House of Burgesses’

“remarkable adherence to English forms and practices”); Joan de Lourdes Leon-

ard, 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 J

EFFERSON’S MANUAL, supra note 1 (discussing Senate procedures

and relying heavily on parliamentary citations); M

ASON, supra note 1, by far the

most frequently-used procedural manual among American state legislative cham-

bers, 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 coun-

tries.” M

ASON’S MANUAL, supra note 1, at 29.

No. 2] The Founders' Origination Clause 649

B. Parliament and the Power of the Purse

1. The Scope of the Term “Money Bill”

One of the more celebrated aspects of parliamentary practice

pertained to “money bills”—a term whose contours are dis-

cussed below.

As commonly stated, parliamentary practice

was as follows:

 Only the House of Commons could originate money bills.

This meant that each money bill had to be introduced in

the Commons by a member of that chamber, considered

by a committee of that chamber (which might be the

committee of the whole), perhaps suffer amendments in

the same body, and then win a majority vote therein—all

before being sent to the Lords.

 The House of Lords could approve or reject any money bill.

 The Lords could not offer amendments to money bills; the

Lords were required to accept or reject each as an entirety.

 Once the Lords had approved a money bill, it was pre-

sented to the King or Queen for royal approval.

These rules were the basis of the saying that the House of

Commons held the “power of the purse.”

Reality was more complicated. Parliamentary historian Da-

vid W. Hayton, writing of the late seventeenth and early eight-

eenth century, observed, “The Commons’ exclusive control

over fiscal legislation was a perennial source of friction.”

One

area of friction was the scope of the phrase “money bill.” Most

everyone agreed that the term included all alterations in the tax

laws,

whether they raised or reduced

taxes. Beyond that, the

75. See infra Part II.B.1.

76. D

E 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 W

ILLIAM BLACKSTONE, COMMENTARIES *164.

79. D

E LOLME, supra note 1.

80. H

AYTON, supra note 1.

81. G

ILES JACOB, LEX CONSTITUTIONIS: 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.”).

650 Harvard Journal of Law & Public Policy [Vol. 38

definitions varied somewhat. William Blackstone defined a

money bill as

[any] bill[], by which money is directed to be raised upon

the subject [meaning citizen], for any purpose or in any

shape whatsoever; either for the exigencies of government,

and collected from the kingdom in general, as the land tax;

or for private benefit, and collected in any particular district,

as by turnpikes, parish rates, and the like.

Roger Acherley’s 1759 work, The Brittanic Constitution, so de-

scribed a “money bill” as to reserve to the Commons:

[t]he sole Right and power over the Monies and Treasures of

the People, and of Giving and Granting, or Denying Aids or

Monies for Publick Service, and . . . not only of all Laws for

Imposing Taxes, and Levying and Raising Aids or Money up-

on the People, for the Defence and Support of the State and

Government; But also of all Laws, touching the Taking from

any Man his Property; and should have power to Inquire in-

to, and Judge of the Uses and Occasions for which Monies

are to be Demanded and Given; and to Appropriate the

same to those Uses . . . .

One distinction between Blackstone’s and Acherley’s defini-

tions is that Acherley seemed to include exactions for purposes

of regulation (“all Laws, touching the Taking from any Man his

Property”) while Blackstone did not.

Controversy was quite

heated over this topic. Some in the Lords contended that purely

regulatory exactions never qualified as money bills.

Some

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 W

ILLIAM BLACKSTONE, COMMENTARIES *169.

84. A

CHERLEY, 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 C

OBBETT, supra note 1, at 139–44 (reproducing remarks by the Earl

of Shelburne in the Lords, July 3, 1782); P

ARLIAMENTARY REGISTER, supra note 1,

No. 2] The Founders' Origination Clause 651

members of the Commons argued that any measure imposing

duties, even if imposed purely to regulate commerce, was a

money bill.

Each House, however, contained a spectrum of

opinion on the matter. Illustrative is a 1779 Commons debate

on the Lords’ amendments to a militia bill, a debate that cen-

tered on whether the Commons should reject the amendments

as impermissible alterations in a money bill. Ultimately, the

Commons decided to accept the amendments.

Another difference between the Acherley and Blackstone

definitions is that Acherley, unlike Blackstone, included ap-

propriations within the scope of “money bill.” To modern eyes,

this would seem to be a major difference, but in the eighteenth

century it was not. During the years before the drafting of the

U.S. Constitution, Parliament generally handled revenue and

appropriations together. The Commons would initiate a “sup-

ply bill”

creating or re-authorizing one or more levies and

earmarking the levy or levies for a particular purpose.

For ex-

ample, the bill funding the “civil list” for a new monarch’s

reign—that is, support for the sovereign’s household and for

most of the civil service—earmarked for that purpose heredi-

tary Crown revenue supplemented by new or renewed excise

taxes and customs duties.

Other supply bills imposed named

taxes (such as land taxes), often time-limited, for funding a des-

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. P

ARLIAMENTARY REGISTER, supra note 1, Fifteenth Parliament, Third Session,

at 1–2 (May 8, 1783) (reporting remarks by the Speaker).

88. See 20 C

OBBETT, supra note 1, at 1008–18 (July 2, 1779) (reproducing the

Commons debate on the Lords’ amendment to the militia bill, illustrating disa-

greement about what was and was not a money bill and complaints about the

Lords having gutted the militia bill, which ultimately passed).

89. H

AYTON, supra note 1 (“Supply bills always began in the Lower House,

while most private estate bills originated in the Upper.”); cf. D

E LOLME, supra note

1, at 58 (“All Bills for granting Money must have their beginning in the House of

Commons . . . .”).

90. E

INZIG, supra note 1, at 137–38. See also 3 HATSELL, supra note 1, at 87 (refer-

ring to “granting and appropriating” as components of supply); id. at 88 (provid-

ing 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, Parlia-

ment funded increasing shares of the civil service with supply bills other than the

civil list bill. Id. at 153.

652 Harvard Journal of Law & Public Policy [Vol. 38

ignated activity, such as fighting a war.

Except for bills for the

support of the army, supply bills seldom appropriated funds in

detail as modern legislatures do. Allocation within the permit-

ted purpose was the task of the executive branch.

Not until

adoption of Edmund Burke’s

1782 reform legislation did Par-

liament begin to appropriate non-military expenses in detail.

Not until 1787 did Parliament create the Consolidated Fund, an

account analogous to a modern state general fund, fed by many

revenue bills and appropriated for many purposes.

In the Parliament known to the Founders, therefore, “sup-

ply”—consisting of both revenue and spending—was an accept-

ed legislative category. To employ the modern legislative term,

supply was a single subject.

This was true even of omnibus fi-

nancial bills containing multiple sources of revenue for multiple

purposes, including but not limited to the civil list bill.

2. Hotch-Potch Bills and Tacking

Although a chamber of Parliament originating a bill was not

bound by a single subject rule, the usual bill was limited to

some accepted legislative category. The relatively rare excep-

tion was the “hotch-potch bill.”

A hotch-potch bill was one,

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 daz-

zling characters: a moderate Whig, leading parliamentarian, friend of the Ameri-

can colonies, enemy of the French Revolution, noted philosopher, and widely

accounted as the founder of modern conservatism. See generally R

USSELL KIRK,

EDMUND BURKE: A GENIUS RECONSIDERED (1967).

95. E

INZIG, 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.aspx?compid=116866 [http://perma.cc/RFD9-

VJ4C] (placing into a committee a single bill granting and applying money for

various purposes); 3 H

ATSELL, supra note 1, at 96–97 (reporting an incident of a

single bill altering various financial duties). Cf. 28 C

OBBETT, 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 reve-

nue 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.” J

OHNSON, supra note 1; SHERI-

No. 2] The Founders' Origination Clause 653

often introduced late in the session, encompassing matters in

disparate categories.

100

During the seventeenth century and very early eighteenth

century, the Commons sometimes created a hotch-potch by

combining non-financial matter into a money bill.

This was

done when opposition in the Lords to the non-financial matter

was expected, but the Commons hoped the Peers would be suf-

ficiently desperate for revenue to approve the measure. The

practice of throwing non-financial provisions into hotch-potch

with financial provisions was called tacking.

101

Unsurprisingly, the Peers objected to tacking. In 1702 they

adopted a House of Lords standing order (rule) by which they

automatically rejected any money bill onto which the Com-

mons had tacked non-financial provisions.

102

The Peers were

sufficiently firm about this rule

103

that by the time of the Amer-

ican founding efforts to tack were rare.

3. The Dispute Over Amendments by the Lords

I have found no instances in which even the staunchest

member of the House of Lords disputed the exclusive privilege

of the Commons to originate money bills.

104

But there was great

controversy over whether the Peers could amend them.

105

In a

1778 floor speech, Lord Shelburn argued that they could:

I shall never submit to the doctrines I have heard this day

from the woolsack [the Chancellor], that the other House are

DAN, supra note 1 (both unpaginated). The word did not appear in most other

dictionaries.

100. See, e.g., P

ARLIAMENTARY REGISTER, supra note 1, Fifteenth Parliament, Sec-

ond 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 H

ATSELL, supra note 1, at 220–24 (describing and criticizing tacking);

INZIG, supra note 1, at 196–98 (relating the history of tacking).

102. The Lords’ standing order is mentioned at 23 C

OBBETT, supra note 1, at 144–45

(speech by Lord Loughborough, July 3, 1782). See also D

E 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 re-

marks by Lord Loughbrough).

104. For the origins and evolution of the Commons privilege, see E

INZIG, supra

note 1, at 111–14.

105. E

INZIG, supra note 1, at 195.

654 Harvard Journal of Law & Public Policy [Vol. 38

the only representatives and guardians of the people’s

rights. I boldly maintain the contrary. I say this House are

equally the representatives of the people. They hold the bal-

ance; and if they should perceive two of the branches of the

legislature unite in oppressing and enslaving the people, it is

their duty to interpose to prevent it.

. . . .

The noble and learned lord on the woolsack, in the debate

which opened the business of the day, asserted, that your

lordships were incompetent to make any alteration in a

Money Bill, or a Bill of Supply. I should be glad to see the

matter fairly and fully discussed, and the subject brought

forward and argued upon precedent, as well as all its collat-

eral relations. I should be pleased to see the question fairly

committed, were it for no other reason but to hear the sleek,

smooth contractors from the other House of Parliament,

come to that bar and declare, that they, and they only, could

frame a Money Bill; and they, and they only, could dispose

of the property of the peers of Great Britain . . . . [U]ntil the

claim, after a solemn discussion of this House, is openly and

directly relinquished, I shall continue to be of opinion, that

your lordships have a right to alter, amend, or reject a mon-

ey Bill . . . .

106

The House of Lords made recurrent efforts to amend money

bills. Most of the time the Commons’ response was hostile.

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 C

OBBETT, supra note 1, at 955; see also PARLIAMEN-

TARY

1778) (containing similar assertions by the Duke of Richmond and the Earl of Eff-

ingham 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 C

OBBETT,

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 C

OBBETT, 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.

No. 2] The Founders' Origination Clause 655

Thus, in 1772 the Lords offered an amendment to a corn bill—

not to impose, but to remove a charge. Several indignant speak-

ers rose in the Commons to denounce the perceived insult, in-

cluding former Massachusetts colonial governor Thomas

Pownall (the bill’s sponsor) and a particularly outraged Ed-

mund Burke. The Speaker of the Commons added that “he

would do his part in the business, and toss the Bill over the ta-

ble.” He proceeded to do so, and other members of the House

kicked it on their way out.

107

The incident illustrates that the Commons generally defined

a “money bill” to include not merely rate increases but all

changes in levies, including reductions.

108

The incident does not

illustrate, however, the consistent response of the Commons to

amendments from the Lords. The second edition of John

Hatsell’s authoritative study of parliamentary practice, pub-

lished in 1785, listed 85 incidents in which the Peers had at-

tempted to send money bills back to the Commons with

amendments.

109

Hatsell’s list shows that the Commons acqui-

esced to the Lords’ amendments in 22 of these cases, and

agreed to conferences or otherwise deliberated over the

amendments in three others.

110

In many, but not all, of the in-

stances in which the Commons approved the amendments,

they added provisos asserting their privilege and/or noting that

the amendments were “small” or remedied prior mistakes.

There seems to have been a gradual reduction over time in

Commons acquiescence to Lords amendments. But Hatsell

listed amendments accepted by the Commons as late as 1750

and taken into honest consideration as late as 1772.

111

This willingness to bend reflects the reality that Peers’ opin-

ion on financial legislation was often valuable. Even Charles

James Fox, a leader of the liberal forces in the Commons,

112

said

107. 17 COBBETT, supra note 1, at 512–15 (June 3, 1772). Einzig relates this inci-

dent and another like it. E

INZIG, supra note 1, at 196.

108. See also supra note 86 and accompanying text (defining money bills to in-

clude denial of revenue).

109. 3 H

ATSELL, supra note 1, at 110–47.

110. Id.

111. Id.

112. On Charles James Fox, see FOX, Hon. Charles James (1749-1806), of Wimble-

don, Surr., T

HE HISTORY OF PARLIAMENT TRUST, available at http://

656 Harvard Journal of Law & Public Policy [Vol. 38

he thought the right of the Lords to participate in money bills

“was often too strictly construed.”

113

To his list of Lords amendments, Hatsell appended two

comments that cannot be reconciled. In the first, he wrote that

“the Commons have vigorously and uniformly opposed the

attempt” of the Lords to interfere in matters of supply.

114

In the

second, just a few pages later, he backed away from that char-

acterization and attempted to synthesize the cases. He conclud-

ed that (1) the Lords could correct mistakes in revenue bills and

(2) they could offer any kind of amendment in bills imposing

exactions for regulatory purposes if they did not “make any

alteration in the quantum of the toll or rate, in the disposition

or duration of it, or in the persons, commissioners, or collectors

appointed to manage it.”

115

Whether Hatsell’s synthesis was

entirely accurate is less important than the fact that the state of

the record induced him to believe it was tenable. That record

shows that, whatever the correct theory was, in practice much

depended on tug-of-war between the chambers, inter-house

conference committees,

116

and the efficacy of conciliation.

117

There is every reason to believe that leading founders were

aware that the rules were not entirely settled in Britain.

118

www.historyofparliamentonline.org/volume/1754-1790/member/fox-hon-charles-

james-1749-1806 [http://perma.cc/3RB6-6UXY].

113. P

ARLIAMENTARY REGISTER, supra note 1, Fifteenth Parliament, Third Ses-

sion, at 2 (May 8, 1783) (reporting remarks by Charles James Fox).

114. 3 H

ATSELL, supra note 1, at 147.

115. 3 H

ATSELL, supra note 1, at 153–55. Cf. PARLIAMENTARY REGISTER, supra

note 1, Fourteenth Parliament, Fifth Session, at 540 (July 2, 1779) (reporting a simi-

lar attempt to synthesize the cases by Sir Grey Cooper).

116. H

AYTON, 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 C

OBBETT, 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 C

OBBETT,

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 consid-

eration of the said amendments was postponed for three months. A new bill was

immediately brought in, which passed both Houses.”) (Editor’s summary of de-

bate of June 30, 1788).

118. As James Wilson put it, “The point is still sub judice in England.” 1 F

AR-

RAND

’S RECORDS, supra note 1, at 546 (Madison, July 6, 1787) (reporting remarks

by Wilson).

No. 2] The Founders' Origination Clause 657

4. What Was An “Amendment?”

The Origination Clause states that “the Senate may propose

or concur with Amendments as on other Bills.” In other words,

the Constitution’s definition of an “Amendment” of a revenue

bill is the same as the general definition of a legislative

amendment.

119

Thus, in seeking the Founding-Era definition of

“Amendment,” one may consult how that term was used in

both revenue and non-revenue bills.

“Amendment” is, of course, a noun that corresponds to the

verb “amend.” Etymologically, the verb is closely related to

“mend”—that is, to correct or repair. Eighteenth century dic-

tionaries reflect this etymology by defining “amend” in the

sense of to “correct” or “make better.”

120

For example, Francis

Allen’s dictionary defined “amendment” as “an alteration

which makes it better, a correction.”

121

In modern speech we

preserve this connection between amending and mending

through the idiom, “to make amends.”

Within Parliament, members frequently used the words

“amend” and “amendment” so as to render explicit the connec-

tion to “mend.”

122

To repair roads, for example, was to

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. A

SH, supra note 1 (“To grow better, to alter for the better”); BAILEY, supra note

1 (“to reform”); B

ARLOW, supra note 1 (“to alter for the better.”); DONALDSON, supra

note 1 (“to grow better; to advance in any good”); J

OHNSON, supra note 1 (“To grow

better; to increase in any good; to be changed for the better”); P

ERRY, supra note 1

(“to improve; to grow better”); S

HERIDAN, supra note 1 (“to grow better”).

121. A

LLEN, supra note 1. Cf. JOHNSON, supra note 1 (“1. A change from bad for

the better. 2. Reformation of life. 3. Recovery of health.”); P

ERRY, supra note 1 (“to

correct; grow better”).

122. 17 C

OBBETT, 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 . . . .

658 Harvard Journal of Law & Public Policy [Vol. 38

“amend” them.

123

MPs sometimes distinguished between an

“amendment,” which made things better, and an “alteration,”

which could make them worse.

124

On other occasions they

might use “amend” merely as a synonym for “alter.”

125

How-

ever, they seem not to have varied their usage according to the

nature of the item amended—that is, whether that item was a

bill from the same house, a bill from the other house, a resolu-

tion, a report, or a prior law.

126

MPs sometimes did draw a line between amending a bill and

changing its essence. In 1742, the Earl of Elay argued that a par-

ticular bill was:

one as cannot be amended, without first erasing it to its very

foundation . . . . If it appears to be such a Bill as cannot be

fully amended in the committee, without altering its nature,

and making it in a great measure a new Bill; we ought not to

send it to a committee, because every Bill, by our forms of

proceeding, ought to be twice read and considered in the

House before its being committed, which, I am sure, can

never be said of a Bill so moulded in the committee as to

make it quite a new Bill.”

127

See also 19 COBBETT, supra note 1, at 50 (Feb. 17, 1777) (reporting a speech by Solici-

tor 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 C

OBBETT, 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 altera-

tion, but it cannot be called an amendment.”).

125. 13 C

OBBETT, 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

HILIPS, LEX PARLIAMENTARIA: OR, A TREATISE OF THE LAW AND CUSTOM OF PAR-

LIAMENTS

328 (3d ed. 1748) (apparently using the words “Amendment” and “Al-

teration” 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 C

OBBETT, 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 ques-

tion . . . .”); 16 C

OBBETT, supra note 1, at 1052 (Nov. 13, 1770) (quoting William

Dowdeswell as stating in Commons, “As no proposal has been made to amend

No. 2] The Founders' Origination Clause 659

The parliamentary journals and debate collections do not re-

produce the text of most amendments, but judging by those

that are reproduced, the overwhelming majority worked only

modest changes in the underlying bills.

128

However, the cumu-

lative effect of a series of amendments could alter a proposal

greatly.

129

In 1789, MP Richard Brinsley Sheridan

130

observed

that “all the ministers [sic] revenue bills were hotch-potch bills;

for, if they were not so when first brought in, they had so many

the Address, I conclude that it cannot be amended; that it is not faulty in particu-

lar part, but is uniformly and totally wrong: this is my reason for proposing no

amendment”); 16 C

OBBETT, 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 founda-

tion.”); 28 C

OBBETT, 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 C

OBBETT, 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 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 reject-

ed 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 . . . .”).

No. 2] The Founders' Origination Clause 679

propriations 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 specifical-

ly banned tacking.

227

This did not prevent conflict between the

legislative chambers on financial issues. Although both cham-

bers sometimes refrained from provoking each other,

228

on oth-

er occasions the temptation to fight prevailed. The house of

delegates apparently engaged in tacking despite the state con-

stitutional ban, provoking angry protests from the senate.

229

The senate further responded by amending money bills to de-

lete 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 altera-

tions, the senate retorted that the house’s decision to tack was a

waiver of its privilege.

233

The senate also interpreted its own

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. M

D. 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 con-

sidered 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 M

D. 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 M

D. H.D. JOUR., supra note 1, at 151 (May 6, 1780).

231. E.g., 1779 M

D. H.D. JOUR., supra note 1, at 154 (May 8, 1780).

232. E.g., 1782 M

D. 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).

680 Harvard Journal of Law & Public Policy [Vol. 38

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 constitu-

tions 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 con-

stitution in 1784, it adopted the Massachusetts formula.

237

1790, Pennsylvania scrapped its unicameral system and adopt-

ed language tracking the new federal Constitution.

238

D. The Scope of “Amendment” in American Practice

In America, as in Britain, the words “amend” and “amend-

ment” 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 cor-

rect, 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

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 amend-

ments, 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 partic-

ular county for that county or local purpose were not money bills).

235. 2 F

ARRAND’S RECORDS, supra note 1, at 280 (reporting remarks by Charles

Carroll and James McHenry).

236. M

ASS. CONST. of 1780, ch. I, § 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. P

A. CONST. of 1790, art. I, § 20 (“All bills for raising revenue shall originate

in the house of representatives; but the senate may propose amendments, as in

other bills.”).

239. P

ERRY, supra note 1 (unpaginated) (defining “amend” and “amendment”).

240. E.g., 1 C

ONN. 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).

No. 2] The Founders' Origination Clause 681

To see whether American legislative practice tracked the dic-

tionary 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 dic-

tionaries: “Amend” frequently meant merely to “alter.”

242

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 signif-

icant, 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

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, Massachu-

setts, Maryland, New Hampshire, New Jersey, New York, North Carolina, Rhode

Island, South Carolina, and Virginia. Other resources used were as follows:

Delaware: M

INUTES 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: P

A. GEN. ASSEM. MIN., supra note 1; 10–11 PA. ARCHIVES (1854-55)

and 14–15 M

INUTES OF THE SUPREME EXECUTIVE COUNCIL OF PENNSYLVANIA (1853).

Vermont: 3 S

TATE 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 C

ONN. 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 peri-

od of a tax from four to three years).

244. See, e.g., V

A. 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. V

A. 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).

682 Harvard Journal of Law & Public Policy [Vol. 38

matter of their original bills, assuming that revenue is consid-

ered a single subject.

246

On the other hand, the American records, unlike those in Brit-

ain, do report complete substitutes being offered as amend-

ments. 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 resolu-

tion after the enacting clause (or after some other clause very

early in the text) was removed and replaced with new lan-

guage. 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

246. However, an amendment to a revenue measure might have a regulatory

effect. See, e.g., 3 S

TATE 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. V

A. 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

No. 2] The Founders' Origination Clause 683

failed, but it was not held to be out of order. On December 19

of the same year, a Virginia house committee offered a resolu-

tion addressing the alleged financial peccadillos of one of Vir-

ginia’s congressional delegates, Meriwether Smith. The resolu-

tion 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 amend-

ment was offered as follows:

to strike out from the word “resolved,” to the end of the res-

olution; and to insert “that the accounts, of Meriwether

Smith, Esq. appear to be unsatisfactory, inasmuch as the

sum of 8,000l. 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 prob-

lem 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

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. V

A. 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 Pro-

posing Amendments,” 65 F

LA. L. REV. 615 (2013).

684 Harvard Journal of Law & Public Policy [Vol. 38

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 Com-

mittee, that the Laws now in Force in this State, and those

now under Consideration of the Legislature, will be suffi-

cient 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 replac-

ing 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 an-

num 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 fol-

lowing resolve instead of that adopted by you.

Resolved that the two Treasurers of this State hereafter cho-

sen 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

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.

No. 2] The Founders' Origination Clause 685

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 recom-

mended this resolution:

Whereas the General Convention which met in Philadelphia,

in pursuance of a recommendation of Congress, did recom-

mend 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, citi-

zens 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 gov-

ernment for the United States, previous to the adoption, be in-

serted 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 Penn-

sylvania. The original was a proposed resolution for the ap-

pointment of a committee “to bring in a bill directing the com-

missioners of the city and several counties in this state” to

make out an assessment roll. The substitute directed the as-

257. Id. at 189–90 (Dec. 9, 1777).

258. John C. Cavanagh, Convention of 1788, Encyclopedia of North Carolina (2006),

available at ncpedia.org/government/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).

686 Harvard Journal of Law & Public Policy [Vol. 38

sessment 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 com-

monwealth 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 re-

veal scrupulous adherence to the rule that money bills “origi-

nate” 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 con-

curred, as taken into a new draft.”

269

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 D

OCUMENTARY HISTORY,

supra note 1, at 224, 232 (defending the Constitutional Convention’s substitution

of a new Constitution for the Articles of Confederation).

264. M

ASS. H.R. JOUR., supra note 1.

265. M

ASS. H.R. JOUR., supra note 1, at 22 (May 31, 1784) (referencing a commit-

tee 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.

No. 2] The Founders' Origination Clause 687

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 dis-

cussing 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 ad-

dressed the same topic addressed by the original bill—and, in-

deed, addressed it quite closely. The practice regarding substi-

tutes 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 docu-

ments 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 dif-

ferent 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 pro-

duce 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

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

688 Harvard Journal of Law & Public Policy [Vol. 38

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 re-

ceived unless to postpone commit or amend it—And no new

motion shall be admitted under colour of amendment as a Sub-

stitute 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 us-

age,

276

this was not true during the Founding Era. In the eight-

eenth 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

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. C

OLO. REV. STAT. § 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. B

AILEY, supra note 1 (defining the noun “colour,” in addition to other

meanings, as “pretence or show”); D

YCHE & 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”); J

OHNSON, supra note 1 (including among the

definitions of the verb, “To palliate; to excuse. To make plausible.”); K

ENRICK,

supra note 1 (including among other definitions of the noun, “The representation

of any thing [sic] superficially examined.—Concealment; palliation; excuse; super-

ficial cover.—Appearance; pretence; false shew”); P

ERRY, supra note 1 (including

among other definitions of the noun, “concealment; excuse”); S

HERIDAN, supra

note 1 (including among other definitions of the noun, “the representation of any

thing [sic] superficially examined; palliation; appearance; false shew”); B

ARLOW,

supra note 1 (including among other definitions of the noun, “In Law, the proba-

ble pleas of a defendant to an action brought, which in fact, is false).

No. 2] The Founders' Origination Clause 689

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 Confedera-

tion 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 admis-

sion of any other motion, except it be for the previous ques-

tion, 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 interrupt-

ed, 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 amend-

ment” 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

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

279. P

A. 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 leg-

islative 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 ques-

tion 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

690 Harvard Journal of Law & Public Policy [Vol. 38

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 draft-

ers 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 gov-

ernment.” New Hampshire, Delaware, and Maryland adopted

less rigorous origination rules.

Experience led to modifications. The Virginia legislature infor-

mally excluded appropriations from the definition of “money

bills,” thereby permitting senate amendment. The 1780 Massa-

chusetts Constitution permitted senate amendment of all money

bills, as did the second New Hampshire and Pennsylvania consti-

tutions ratified in 1784 and 1790, respectively.

before any new motion shall be introduced, unless to amend it, to adjourn, or for

the previous question.”).

283. 1 A

NNALS 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).

No. 2] The Founders' Origination Clause 691

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 orig-

ination 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 counter-

parts, occasionally amended by complete substitute, amendments

by substitute also addressed the same subject matter as the under-

lying bill.

285

Several legislative bodies adopted rules that implicitly

reflected the germaneness principle.

IV. W

HAT 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 char-

acterized 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 disagree-

ment 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 ac-

tually clarify a provision’s meaning and purpose. One reason is

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 al-

ways non-germane.

286. B

ARACK 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”).

692 Harvard Journal of Law & Public Policy [Vol. 38

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 lim-

ited

288

suggests that the public understood that there was truth

in both characterizations.

There was also general agreement about the policies underly-

ing House origination. The principal dispute was over the

weight of those policies and the extent to which the Clause fur-

thered them. Because advocates of House origination ultimate-

ly prevailed, however, we can legitimately infer that the ratifi-

ers found the advocates’ case more persuasive than

opponents’. In other words, the ratifiers agreed with the poli-

cies behind the Clause, believed they were important, and be-

lieved 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 gover-

nor of the nation’s largest state. He was the first substantive

speaker at the convention when, on May 29, 1787, he intro-

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 representa-

tions 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 ac-

cepted the Federalists’ explanations of the General Welfare Clause).

288. See supra Parts II & III.

No. 2] The Founders' Origination Clause 693

duced the Virginia Plan.

289

In July, he was elected to the Com-

mittee 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 be-

lieved 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 legisla-

tures, 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 up-

per 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 origina-

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

290. H

UTSON, SUPPLEMENT, supra note 1, at 189. The powers he assigned to the Sen-

ate were treaties, appointment of the judiciary, and the sending of ambassadors. Id.

291. 2 F

ARRAND’S RECORDS, supra note 1, at 230 (reporting remarks by Edmund

Randolph).

292. 2 F

ARRAND’S RECORDS, supra note 1, at 262, 273.

293. E.g., Gregory S. Ahern, The Spirit of American Constitutionalism: John Dickin-

son’s Fabius Letters, 11

HUMANITAS 57 (1998), available at http://www.nhinet.org/

humsub/11-2.htm [http://perma.cc/D682-9ZT5] (“Perhaps closest of all to Dickin-

son’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. Natel-

son, Dickinson, supra note 1, at 425.

295. Natelson, Dickinson, supra note 1, at 457–58.

296. H

UTSON, SUPPLEMENT, supra note 1, at 88. An earlier version of the scheme

for an upper house appears id. at 85.

694 Harvard Journal of Law & Public Policy [Vol. 38

tion and against the Randolph compromise.

297

During his dis-

course Madison made the tactical error of belittling in Dickin-

son’s presence the latter’s celebrated pre-Revolutionary distinc-

tion 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 restrain-

ing money bills to the immediate representatives of the peo-

ple[?] 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 doubt-

ed[.] Shall we oppose to this long experience, the short experi-

ence of 11 years which we had ourselves, on this subject[?]—

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 preju-

dices shd. never be disregarded by us when no essential pur-

pose was to be served. When this plan goes forth, it will be at-

tacked 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 orig-

inating money bills in favor of the popular branch of the Legis-

lature. Most of them however allowed the other branch to

amend. This he thought would be proper for us to do.

299

297. 2 FARRAND’S RECORDS, supra note 1, at 276 (Aug. 13, 1787) (reporting re-

marks by James Madison).

298. 2 F

ARRAND’S RECORDS, supra note 1, at 276.

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

No. 2] The Founders' Origination Clause 695

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 his-

tory, both in Britain and America, had formed in the public

mind a distinction between revenue, regulation, and appropria-

tion

303

—a distinction also reflected in other parts of the Constitu-

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 F

ARRAND’S RECORDS, supra note 1, at 234 (Madison, June 13, 1787) (report-

ing 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 F

ARRAND’S RECORDS,

supra note 1, at 545 (Madison, July 6, 1787) (reporting remarks by Gouverneur Mor-

ris); 1 F

ARRAND’S RECORDS, supra note 1, at 546 (Madison, July 6, 1787) (reporting

remarks by James Wilson); Luther Martin, Genuine Information VI, B

ALTIMORE MD.

GAZETTE, Jan. 15, 1788, 15 DOCUMENTARY HISTORY, supra note 1, at 374–75.

302. See supra Part III. For further discussion of the amendment qualifier, see Part V.

303. See supra Part III.A.

696 Harvard Journal of Law & Public Policy [Vol. 38

tion.

304

Recent history in America, moreover, had created a per-

ceived 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 percep-

tion 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 Ran-

dolph’s success. Randolph pointed out that lower house initia-

tion of revenue bills would check the appetite for war.

306

Dick-

304. U.S. CONST. art. I, § 8, cl. 3 (“To regulate Commerce”); art. I, § 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, § 9, cl. 6 (“No Preference shall be given by

any Regulation of Commerce or Revenue”); art. I, § 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 D

OCUMENTARY HISTORY, supra note

1, at 110, 112–14.

306. 2 F

ARRAND’S RECORDS, supra note 1, at 278–79 (reporting Edmund Ran-

dolph as stating, “[i]n the other House ought to be placed the origination of the

means of war”); cf. An American Citizen IV, 13 D

OCUMENTARY HISTORY, supra note

1, at 431, 435, Oct. 21, 1787 (citing the military appropriations clause and stating

No. 2] The Founders' Origination Clause 697

inson, 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 “aristocra-

cy” 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 signif-

that “the original grant of the supplies must be made by the House of Representa-

tives, 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 F

ARRAND’S RECORDS, supra note 1, at 263 (Madison, Aug. 13, 1787) (re-

porting remarks of Edmund Randolph); id. at 278 (Aug. 13, 1787) (reporting re-

marks by John Dickinson).

308. See, e.g., Cincinnatus IV, To James Wilson, Esquire, N.Y.J., Nov. 22, 1787, 19

OCUMENTARY HISTORY, supra note 1, at 281–83 (warning of potential aristocra-

cy); Arthur Lee to Edward Rutledge, Oct. 29, 1787, 8 D

OCUMENTARY 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), N

ORFOLK AND PORTSMOUTH J., Feb. 20,

1788, 16 D

OCUMENTARY HISTORY, supra note 1, at 161, 164–67 (using the Origina-

tion 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 upper-

house 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, § 2, cl. 2 (setting forth qualifications of Representa-

tives) with U.S.

CONST. art. I, § 3, cl. 3 (setting forth qualifications of Senators).

698 Harvard Journal of Law & Public Policy [Vol. 38

icantly 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 elect-

ed 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 sus-

ceptible to corruption—both in terms of illegal conduct and plac-

ing 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 slo-

gan, “No taxation without representation”?

There was more. The Constitution granted this unrepre-

sentative and exclusive Senate crucial prerogatives denied to

the House—most importantly a share in the executive power

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, V

A. INDEPENDENT CHRONICLE,

Dec. 19, 1787, reprinted in 8 D

OCUMENTARY HISTORY, supra note 1, at 244, 248 (stat-

ing, “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, § 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 F

ARRAND’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 II (John Dickinson), P

A. 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 F

AR-

RAND

’S RECORDS, supra note 1, at 546 (reporting remarks by Franklin).

No. 2] The Founders' Origination Clause 699

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 ad-

vance their preferred financial policies over and over again, pa-

tiently suffering rejection until, by chance or otherwise, they ob-

tained a compliant House.

318

Even if sentiment in the House

remained unaltered, Senators’ greater experience, political acu-

men, and personal connections might enable them to overwhelm

the simpler people in the other chamber. As George Mason ob-

served, “An aristocratic body, like the screw in mechanics, work-

ing 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 Sen-

ate 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 Par-

is, 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 be-

come more ill-tuned to the real world and more oppressive,

and its spending more extravagant.

321

317. U.S. CONST. art. II, § 2, cl. 2 (granting the Senate power to advise and con-

sent to the appointment of federal officers and the making of treaties).

318. 1 F

ARRAND’S RECORDS, supra note 1, at 233, 545 (July 6, 1787) (reporting

remarks by Elbridge Gerry).

319. 2 F

ARRAND’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 Sen-

ate had the power of initiating it could reduce the House to insignificance. He com-

pared 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 F

ARRAND’S REC-

ORDS

, supra note 1, at 274 (reporting remarks by George Mason). See also 2 FAR-

RAND

’S RECORDS, supra note 1, at 297 (reporting remarks by Nathaniel Gorham).

321. Elbridge Gerry to William Cushing, Jan. 21, 1788, 6 D

OCUMENTARY HISTO-

, supra note 1, at 1265, 1270.

700 Harvard Journal of Law & Public Policy [Vol. 38

For such reasons, men like Mason, Dickinson, and Randolph

believed that the Senate, while a necessary check on the excess-

es of democracy, really did pose a risk of aristocracy or oligar-

chy. House origination was a needed corrective.

322

House orig-

ination 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 in-

formed 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 Ameri-

cans would be offended by the lack of House origination.

V. W

HAT THE CONSTITUTIONAL DEBATES TELL US

BOUT 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

322. 2 FARRAND’S RECORDS, supra note 1, at 297 (reporting remarks by George Ma-

son); T

HE 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 F

ARRAND’S RECORDS,

supra note 1, at 278 (Aug. 13, 1787) (reporting remarks by John Dickinson); T

HE FED-

ERALIST

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. C

ONST. pmbl.

324. Id.

325. 2 F

ARRAND’S RECORDS, supra note 1, at 278.

No. 2] The Founders' Origination Clause 701

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, im-

moderate)

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 ef-

fect,”

331

and therefore the House’s veto power on Senate

legislation would be sufficient to preserve popular liber-

ty.

332

326. 1 FARRAND’S RECORDS, supra note 1, at 233 (reporting remarks by Pierce

Butler); Luther Martin, Genuine Information VI, B

ALTIMORE MD. GAZETTE, Jan. 15,

1788, reprinted in 15 D

OCUMENTARY HISTORY 374–75.

327. 1 F

ARRAND’S RECORDS, supra note 1, at 233 (reporting remarks by James

Madison); Luther Martin, Genuine Information VI, B

ALTIMORE MD. GAZETTE, Jan.

15, 1788, reprinted in 15 D

OCUMENTARY HISTORY, supra note 1, at 374–75. Cf. 1

ARRAND’S RECORDS, supra note 1, at 544 (reporting observation of Hugh William-

son that if bills originate in Senate, they will be “more narrowly watched”); 1 id. at

234 (reporting remarks by Hugh Williamson).

328. E.g., B

AILEY, supra note 1 (unpaginated) (defining “extravagant” as “Wandering

out of due bounds, roving beyond due limits; irregular; wild; wasteful, prodigal”).

329. 2 F

ARRAND’S RECORDS, supra note 1, at 276 reporting James Madison as so

arguing).

330. 1 F

ARRAND’S RECORDS, supra note 1, at 544 (reporting James Wilson as say-

ing, “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 (re-

porting remarks by John Rutledge). See also J

AMES HARRINGTON, THE COMMON-

WEALTH 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 F

ARRAND’S RECORDS, supra note 1, at 527 (reporting remarks by James

Madison); 1 id. at 545 (reporting remarks by Charles Pinckney).

332. 1 F

ARRAND’S RECORDS, supra note 1, at 544–45 (reporting remarks by James

Wilson); 2 id. at 279 (reporting remarks by John Rutledge).

702 Harvard Journal of Law & Public Policy [Vol. 38

 If both chambers could initiate, they would offer compet-

ing plans and the people could choose between them.

333

 Good men would not run for the Senate unless they en-

joyed 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 mis-

chief . . . . ”

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 over-

power 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 amend-

ment qualifier provided a more dynamic way to prevent tack-

ing.

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

333. 1 FARRAND’S RECORDS, supra note 1, at 543–44 (reporting remarks by Gou-

verneur Morris).

334. 1 F

ARRAND’S RECORDS, supra note 1, at 233 (reporting remarks by Pierce

Butler and James Madison).

335. 1 F

ARRAND’S RECORDS, supra note 1, at 545 (reporting remarks by Gouver-

neur Morris).

336. 2 F

ARRAND’S RECORDS, supra note 1, at 274–75 (reporting remarks of James

Wilson); 1 id. at 545–46; 2 id. at 276 (Aug. 13, 1787) (reporting remarks by Gouver-

neur 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 F

ARRAND’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 F

ARRAND’S RECORDS, supra note

1, at 546 (“Mr. Martin said that it was understood in the Committee that the diffi-

culties 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).

No. 2] The Founders' Origination Clause 703

of revenue.

339

Of course, the same result could have been achieved

by granting the Senate plenary power over revenue bills. But lim-

iting 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 inconven-

ience. Members of the upper house had to employ extra-

parliamentary channels to suggest even uncontroversial, tech-

nical amendments.

340

This argument was supported by history in

Britain, Maryland, Virginia, and South Carolina.

341

The amend-

ment 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 Fed-

eralists, 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 origi-

nation 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 im-

plied that “Amendment” was a limited concept. Even their

most extravagant claims about the breadth of possible amend-

ments 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 in-

creased to one hundred thousand pounds.”

342

In Gerry’s exam-

339. On revenue as a single broad subject in America, see supra notes 4 & 5 and ac-

companying text. Cf. supra note 98 and accompanying text (reproducing remarks in

Parliament by Richard Brinsley Sheridan on the latitude of revenue amendments).

340. 1 F

ARRAND’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

OCUMENTARY HISTORY, supra note 1, at 1265, 1270–71 (subjoined “statement of

704 Harvard Journal of Law & Public Policy [Vol. 38

ple, 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 ac-

cepted subject matter categories may be the only way to recon-

cile, 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 as-

serting that “[t]he honorable member says that there is no dif-

ference between the right of originating bills and proposing

amendments. There is some difference, though not considera-

ble.”

348

This suggests a broad scope for amendment.

facts”). This echoed one of Madison’s Convention arguments against the Origina-

tion Clause. 1 F

ARRAND’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, A

MERICAN NATIONAL BIOG-

RAPHY

ONLINE. Grayson had been given the honor of carrying from the house of dele-

gates to the senate the resolution appointing commissioners to the famous Potomac

River conference with Maryland. 1781-86 M

D. H.D. JOUR. 540 (Dec. 13 & 14, 1784).

344. 3 E

LLIOT’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 D

OCUMEN-

TARY

HISTORY, supra note 1, at 76; 13 DOCUMENTARY HISTORY, supra note 1, at 408 (re-

ferring to “the paltry right of the Senate to propose alterations in money bills”).

348. 3 E

LLIOT’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 suffi-

cient one on the part of the small States. But he could not but regard it in the light

of a concession. “).

No. 2] The Founders' Origination Clause 705

Yet these two statements may be ascribed merely to Madi-

son’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 con-

nection 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 con-

nection” was necessary. The Senate’s prerogative to amend in-

cluded broad authority over revenue bills, but that authority was

still narrower in scope than that enjoyed by the House.

VI. C

ONCLUSION: THE ORIGINATION CLAUSE AND

OME 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 power-

ful 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.

349. See supra notes 276–77 and accompanying text (discussing substitute bills

“under colour of amendment”).

350. 2 F

ARRAND’S RECORDS, supra note 1, at 276 (emphasis added).

706 Harvard Journal of Law & Public Policy [Vol. 38

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, ig-

nore 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 add-

ing regulations or appropriations, that alteration is not ger-

mane 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 legisla-

tive chamber attempted to coerce the other chamber by adding

non-revenue measures to revenue bills. One reason the Consti-

tution granted the Senate the power to alter tax bills was to en-

able it to protect itself against House tacking. Similarly, the

Constitution’s limitation on the Senate’s alteration power to

351. U.S. CONST. art. I, § 8, cl. 1.

352. U.S.

CONST. art. I, § 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 privi-

lege of bill reducing charges).

No. 2] The Founders' Origination Clause 707

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 intro-

duced in the House of Representatives. It was a six-page meas-

ure 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 pay-

ments 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 effective-

ly raised them for others. Even if it had done only one or the oth-

er, 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 var-

ious revenue-generating taxes, explicitly denominated as such.

357

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-service-

members-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. 10–

1263 (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 origi-

nate in the House as required by the Origination Clause”).

357. See, e.g., Patient Protection and Affordable Care Act, Pub. L. No. 111-148,

§ 9001, 124 Stat. 119, 847–53 (2010) (imposing excise tax on high cost employer-

sponsored health coverage); § 9004 (increasing tax on distributions from certain

health savings accounts and medical savings accounts); § 9007(b) (imposing taxes

on hospitals that fail to meet certain requirements); § 9015 (imposing hospital

insurance tax on high-income taxpayers); § 9017 (imposing excise tax on elective

cosmetic medical procedures).

708 Harvard Journal of Law & Public Policy [Vol. 38

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 re-

placing some taxes with others.

To be sure, the PPACA’s penalty for failing to purchase qual-

ifying insurance was not really a “tax” as the Constitution uses

that term.

358

But for our purposes, it is a tax because the Su-

preme 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 law also alters the tax code in other ways, e.g., id. § 1401 (granting certain

tax credits); § 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

(NFIB), 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); Mil-

lard 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 meas-

ure 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’ dis-

tinction. 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 in-

surance was not a revenue bill. Sissel, 760 F.3d at 7. If the court of appeals is cor-

rect, 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 specifi-

cally ruled the regulatory function to be ultra vires, thereby distinguishing the case

from those in which the Supreme Court upheld measures enacted for valid regulato-

ry 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 ad-

vance 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.

No. 2] The Founders' Origination Clause 709

The Senate’s substitute H.R. 3590 also added non-revenue pro-

visions. These included regulations on insurance companies,

employers, and health care providers,

361

as well as various ap-

propriations.

362

These, however, are subjects distinct from reve-

nue. 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. Un-

der modern Commerce Power and Spending Clause jurispru-

dence,

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.

361. E.g., Patient Protection and Affordable Care Act, Pub. L. No. 111-148,

§§ 1001, 1003, 124 Stat. 119, 130–38, 139–40 (2010); id., §§ 1511–1515 (imposing

additional regulations on employers).

362. E.g., id. at § 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 A

RK. 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 S

T. 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,” N

AT’L L.J., Mar. 28, 2011.