The Origination Clause
The English Predecessor to the Origination Clause
The English Bill of Rights, 1689, limited the power of the Crown to tax the people without approval of parliament:
That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.
Contemporaneously with Blackstone’s Commentaries, the English Parliament imposed the Stamp Act. The Act, enacted without debate, assessed duties or taxes, on a variety of colonial goods, services, professions and activities. The parliament, however, did not include representatives elected to Parliament by the colonies. Consequently enactment of the Stamp Act constituted taxation without representation. Yet the principle of representation as a justification for taxation was the very reason for the enactment of English law requirement of origination of taxes in the House of Commons.
As the First Congress under the Constitution took up its duties, a discussion of those duties by the House was necessary. As to the Origination Clause, the following discussion between took place between two of
But do these principles apply to the governing of a Nation? To the construction and application of our National contract, the United States Constitution? I think the reasonable answer is that courts, to do their jobs must be able to read and apply the Constitution. How else can a dispute be resolved, for example, in the moment when an impeached and removed federal judge refuses to leave his bench, continues to hear cases, and impose judgments in those cases? Her superiors must have the ability to understand the constitutional power of Congress to impeach judicial officers. They must in order to protect litigants, both civil and criminal, from the now-unlawful actions of such a judge.
Does the fact the prior Supreme Court cases have taken a similar approach doom Matt Sissel’s challenge to the individual penalty? Well, again, the answer is, it depends.
It depends on the Court’s own construction of the Clause. Here, there is a substantial reason for the Court to reject
The Convention rejected
Justice Scalia once criticized a test the Court occasionally employs in religion cases, and his colleagues dilettante invocation of that test when it suited their needs but not otherwise, as being like a bad monster movie monster that, killed, rises again. Much the same can be said of
The Supreme Court has stated that principle in this way:
Do not let “sub silentio” confuse or disturb you. In its place, read these words “without saying so.” “Congress does not intend without saying so to enact statutory language that it has earlier discarded in favor of other language.”
There are powerful institutional reasons why a judge would adopt the rule followed by Judge Rogers. Such a rule emphasizes the role of judges in resolving such questions. It enhances the lynchpin role of courts as mediating partners in the development of policy. The problem is that, once you come to see judges as individuals that first decide outcomes then search for justifications, the bloom falls hard from the rose.
We may well be attached to the individual coverage penalty in a way that the Supreme Court will not see its way clear to sever. To do so, would require to freshly appraise the Origination Clause, its own jurisprudence regarding the Clause, and the potential for future invalidations of other, previously sustained federal enactments. Those reasons are not inconsiderable. They are not, however, reasons to deform words, history or truth.
At the same time, if the current construction of the Origination Clause is retained by the Court, then the Origination Clause will, in fact, be a constitutional nullity. The Clause seemingly puts solely in the hands of the House of Representatives the power to initiate bills raising revenue. In this signal act of interpretation, however, the Clause suddenly would not apply to legislation initiated by the Senate (such as Obamacare) that clearly raises revenue (as Judge Rogers concluded Obamacare does) so long as raising revenue is not foremost in the intentions of Congress in enacting the legislation.
Consequently, the obvious and direct purpose of the Clause would be frustrated by the search for an artificial determination of intentionality, rather than an objective determination of effect. Does the legislation raise revenue? Then Congress must obey the Constitution and follow the Origination Clause. Instead, the artifice -- searching for some other purpose and assigning a level of intentionality to it -- moves from the easily dtermined objective examination to the question of motives, a highly subjective search indeed.
The commonsense reading of the Origination Clause lies entirely within your own grasp. I have offered these blogs not simply to dictate an outcome to you. Instead, the greater value to be had here is the empowering of Americans to read, to know, to understand their history, including their documentary history. A well-read, understanding grasp of those documents and that history is a powerful tonic to generations of governmental disregard for the same.