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

• Author: Natelson, Robert G.
• Position: III. Founding-Era Legislative Practice: American Constitutions and Legislatures B. How the American States Adopted New Rules through VI. Conclusion: The Origination Clause and Some Implications for the PPACA, with footnotes, p. 669-709

2. How the American States Adopted New Rules

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

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

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

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

   Delaware was the home of John Dickinson when he was not working in Philadelphia. Its constitution was drafted and adopted in September 1776 by a convention chaired by Dickinson's friend (and, subsequently, Constitutional Convention colleague), George Read. The document provided:

   All Money-Bills for the Support of Government shall originate in the House of Assembly, and may be altered, amended or rejected by the Legislative Council. All other Bills and Ordinances may take Rise in the House of Assembly or Legislative Council, and may be altered, amended or rejected by either. (182) As we have seen, "money-bills for the support of government" encompassed both taxes and spending, and that is how the Delaware legislature construed it. (183) The term did not en compass regulatory measures. It is unclear whether it encompassed fees-for-service such as tolls.

   Two months later, Maryland (perhaps coincidentally, Dickinson's birthplace and early family home) adopted a refined origination clause worth reproducing at length:

   Art. X. That the house of delegates may originate all money bills.... XI. That the senate may be at full and perfect liberty to exercise their judgment in passing laws, and that they may not be compelled by the house of delegates either to reject a money bill which the emergency of affairs may require, or to assent to some other act of legislation, in their conscience and judgment injurious to the public welfare; the house of delegates shall not on any occasion, or under any presence, annex to, or blend with a money bill, any matter, clause, or thing, not immediately relating to, and necessary for the imposing, assessing, levying, or applying the taxes or supplies, to be raised for the support of government, or the current expenses of the state; and to prevent altercation about such bills, it is declared, that no bill imposing duties or customs for the mere regulation of commerce, or inflicting fines for the reformation of morals, or to enforce the execution of the laws, by which an incidental revenue may arise, shall be accounted a money bill; but every bill assessing, levying, or applying taxes or supplies for the support of government, or the current expenses of the state, or appropriating money in the treasury, shall be deemed a money bill. XXII. That the senate may originate any other, except money bills, to which their assent or dissent only shall be given, and may receive any other bills from the house of delegates, and assent, dissent or propose amendments. (184) Like the Delaware instrument, therefore, the Maryland constitution included taxes and spending in the origination rule, but excluded regulatory levies and was unclear on the subject of local fees-for-service. The Maryland constitution also responded to a history of fierce parliamentary disputes by outlawing the practice of "tacking."

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

3. How the American Rules Continued to Evolve

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

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

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

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

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

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

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

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

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

   It is understandable, therefore, why three of the four delegates representing South Carolina at the Constitutional Convention vocally opposed any federal origination rule. Charles C. Pinckney, (208) Pierce Butler, (209) and John Rutledge (210) all pointed out that their state's proscription of senate amendment had provoked severe legislative disputes. (211) These were disputes...