Rise of Complete Substitutes and Fall of the Origination Clause in the Post-Ratification Era

Abstract

Abstract The Constitution’s Origination Clause requires the House of Representatives, the chamber considered closest to the people, to originate all bills for raising revenue. This clause allows Senate amendments to these bills. However, may Senate amendments completely replace House revenue bills with new revenue bills, as occurred with the Affordable Care Act of 2010? My previous research argued the original public meaning of amendment—how a “reasonable speaker of English” would have understood that word in the founding era—disallows complete substitutes. Historical legal arguments justifying the Senate’s complete substitutes rely on quotes from Thomas Jefferson’s important Manual of Parliamentary Practice (1801) saying, for example, “[a] new bill may be ingrafted by way of amendment on the words ‘Be it enacted[.]’” These arguments also cite examples of complete substitutes in Congress from the mid-to-late 1800s, particularly the Senate’s attempted substitute to a House revenue bill in 1872. But no previous research has examined congressional amendment practice during the important post-ratification period of 1789 to 1799 (First through Fifth Congresses), which represents the republic’s first decade and which can be the most suggestive of original meaning. This article tracks the rise of Congress’ complete substitutes—whether to revenue or other legislation—during the first decade and even until 1805. Throughout the entire period under examination, the Senate made no complete substitutes to House revenue bills. The first actual complete substitute to any legislation occurred to a Senate resolution in 1800 when Jefferson was that chamber’s presiding officer, and this episode obviously occurred after the first decade. There was thus no trace of any accepted, let alone consistent, practice of complete substitution in the earliest Congresses. Accordingly, the post-ratification history of amendment practice confirms the original meaning of amendment and indicates Jefferson’s quotes and the historical legal arguments lack a significant foundation in originalism. Later Senate practice as in 1872 allowing complete substitutes to House revenue bills, which Jefferson surely enabled, disregarded the original meaning of amendment in the Origination Clause. But perhaps—given this article’s findings—this original meaning will return to prominence.