Ted Cruz Still Isn't Eligible to Be President ... Or Is He?

The Eligibility Clause of Article II states:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Going back two years, I expressed the view that Ted Cruz is ineligible to be elected President of the United States. In the interim, I have written a few additional posts, including one responding to two former Solicitors General of the United States. Their joint blog post on Harvard Law Review's blog put them in the "Ted's eligible" column. I've gathered my posts in a convenient page for your reference.

For me, Cruz's nettlesome thicket is found in that first phrase, "No person except a natural born citizen[.]" Cruz was born to an American mother and Cuban expatriate father. His married parents lived in Canada at the time of his birth. In fact, Cruz held dual Canadian and US citizenship until 2014 when he surrendered his Canadian citizenship.

Now, to get into the nettles of his thicket.

Cruz, under Canadian law, was a natural born citizen of Canada at birth. But, because US law at the time of his birth so provided, he also acquired US citizenship at birth.

Now, the question that troubles me, the obstacle I see standing between Cruz and the Presidency, is whether that citizenship he acquired at birth meets the requirement that he must be a "natural born Citizen." You see, he either acquired that status because he had a natural right to it, or because his mother had a natural right to confer that status on him, or because the nation had a natural right to confer it on him. I have concluded, based on his birth outside the United States, that he is not a "natural born citizen."

I have not changed my conclusion. I am, however, giving the possibility that he is eligible one last probing. Let me explain a dilemma, and ask your assistance.

Allow me to back into the discussion this way:  I am a citizen of the United States. I know that I am. But, how do I know it? I am a lawyer by trade, and like most lawyers, I tend to examine things through the lens of the law. In this instance, I examine the question of my citizenship through that same lens, and conclude that I am a citizen. In this case, the lens of the law is tinted with statutory, constitutional, and historical tints.

If only everyone could agree with the easy simplicity of constitutional text.

The Fourteenth Amendment to the Constitution says that I am a citizen. 

It says, all persons (I'm one of the those), born or naturalized in the United States (I was born there), and subject to the jurisdiction thereof (since I am not part of a foreign diplomatic corps here on service to that nation, and since I am not part of an enrolled Indian tribe, I am subject to its jurisdiction) are citizens of the United States and the State in which they reside.

A federal statute also says that I am a citizen. 

Title 8 USC 1401 provides several categories of persons who are "nationals and citizens of the United States at birth[,]" including "person[s] born in the United States, and subject to the jurisdiction thereof[.]" As I mentioned above, I am one of those folks, so I am a citizen of the USA by operation of 8 USC 1401. 

But, suppose that Congress had never enacted that federal statute, 8 USC 1401. Would I be a citizen of the USA? Yes, in fact, the separate operation of the Fourteenth Amendment makes me a citizen, whether the Congress adopted a law saying so or not. 

Our common law tradition says that I am a citizen.

Well, then, suppose that the statute had not been enacted and the Fourteenth Amendment had not been ratified and made part of the Constitution. Would I be a citizen of the USA? Again, yes, I would still be a citizen of the United States. As my prior posts indicate, the States that make up the Union -- Louisiana excepted -- adopted the common law of England when they were admitted to the Union (or in the case of the original thirteen colonies, when they created it). Under English common law, a person born on English soil was a subject of the Crown (unless their parents were present in England on diplomatic service from another nation). 

Translated to America, this concept of jus soli meant that, born on the soil of the Commonwealth of Virginia, one was a Virginia citizen. So, even in the absence of any provision of the Constitution or statute, I would be a citizen of whatever State in which I was born (New Mexico, by the way). Prior to ratification of the Fourteenth Amendment, State citizenship in any State of the Union equated with citizenship of the United States.

In that period, prior to the Fourteenth Amendment and after the ratification of the Constitution, Congress had a constitutionally-derived power to "naturalize" citizens. Naturalization means to make one a citizen who was not born one. The States granted that power to the Congress in Article I, section 8 of the Constitution. When Congress first exercised that power, in the naturalization act of 1790, it adopted a provision of the law that made certain children born to American parents abroad "natural born citizens." Five years later, Congress repealed that law and crafted a new Naturalization Act, but did not again employ the phrasing "natural born citizen" to characterize the citizenship status of children entitled to be citizens despite their birth abroad. 

So, then, Congress took one foray into the field of granting "natural born citizen" status via statute, and has never done so since then. That does not necessarily answer the question of eligibility because it does not necessarily answer the question of whether there is a difference between a "natural born citizen" and "citizen at birth" (which is the statutory phrasing from the Immigration and Nationality Act).

The Constitution would resolve this lingering doubt of mine if, but only if, it stated a governing principle in an indisputable manner. I happen to think that it does so when it states the requirement of being a "natural born citizen" for purposes of presidential eligibility. To my mind, that leaves anything other than citizenship consequent to birth on our soil as different from "natural born citizenship." The problem, however, is that all manner of folk, including other legal "experts," treat the principal citizenship statute (8 USC 1401) as conferring "natural born citizenship" on those children born abroad who are treated in the statute as being "citizens at birth."

If we go back to our lineal legal ascendants, the English, their Parliament asserted and exercised a power regarding naturalization of persons born abroad as English subjects. Remember, English law on creation of the subject-Crown relationship required only that a person was born on English soil (except when parents were present in English under legal privilege by, for example, service as emissaries of a foreign power). Yet, before we pulled ourselves up from the English garden and replanted ourselves as the united States of America, Parliament had asserted and exercise a power to grant to certain persons born abroad from English the status of natural born subjects.

So then, the question might be answered by assuming that the power asserted by the Parliament to make natural born subjects of persons that, prior to Acts of Parliament, would only ever be denizens of the Crown was a power natural to, attendant to, the legislative function. If that were the case, then when we stood legislatures up in the united States of America, there would be no reason to suppose that the same power exercised by Parliament -- making natural born subject out of foreign born denizens -- could not be exercised by the State legislatures. Of course, that still does not answer whether a like power would be found in the grant of legislative authority to the Congress by the States in the Constitution.

Remember, Article I provides only that Congress shall have power to make a uniform rule for naturalization. It does not provide by express terms a power to make anyone a natural born citizen, nor a power to define the precise terms of the Constitution. But we could assume -- and based on "scholarly" blog posts it appears that many do -- that the States had the power to do so as independent sovereign States. We could then further assume -- as those scholarly blog posts do -- that the States concluded that they should grant to the Congress that power and that they did so by the otherwise seemingly unambiguous "Naturalization Clause."

The Governator Question: If Congress Can Make Persons Born Outside the United States "Natural Born Citizens," What Would Prevent Congress from Making Governor Schwarzenegger One?

For those who are willing to take each of these assumptive steps (leaps, in my judgment), there really is a further problem that they must own up to as a consequence of their approach to the construction of this constitutional provision. If the Congress garnered from the States via the "Uniform Rule of Naturalization" Clause a power to grant "natural born citizen" status to certain persons born abroad, what limiting factor prevents Congress from expanding the categorical definitions from time to time, as need, or whim, direct? I refer to this as the Governator Question.

Suppose that a Republican majority in the House and the Senate passed a law tomorrow adding a new section to the Immigration and Nationality Act. That provision, the Governator Clause, would permit any person that has acquired citizenship by naturalization, that has continuously resided in the United States for twenty years or more, and that has been elected to a State wide office at least once, to be treated, for purposes of law, as a "Natural Born Citizen." The effect of such a law would be to make Arnold Schwarzenegger eligible to be elected President.

Perhaps that really is what our Constitution has done. Perhaps the delegates to the Constitutional Convention of 1787 actually crafted the "Uniform Rule of Naturalization" Clause with all these sequelae and consequences in mind. Perhaps the States in convention to ratify the new Constitution really contemplated the surrender of these affects of sovereignty to the federal government.

If those who can show these discussions took place would kindly do so, I could wholeheartedly support Ted Cruz. If those who can show that the Convention, and the State ratifying conventions, conducted such votes would kindly do so, I could wholeheartedly support Ted Cruz. If those who can show that the participants in these conventions held these intentions would kindly do so, I could wholeheartedly support Ted Cruz.

I await proffers of such evidence as might be forthcoming.

A Satchel of Embarrassments: John Marshall and Marbury v. Madison

John Marshall

In the Federalist No. 78, Alexander Hamilton defended the proposed Judicial Branch, particularly the Supreme Court created in Article III of the Constitution. Hamilton contended that the Judiciary would be "the least dangerous branch" to the political rights of the People. With the long view of history, we can confidently conclude that Hamilton erred in that representation. Whether he lied, or underestimated the grasping desire for power, his reasoning, that Congress, which had the power of the purse, and the Executive, which bore the sword of the Nation, has proved wrong.

The Judiciary in our Nation has assumed powers far beyond any contemplated for it in the Constitution. Decisions described above give the reader some sense of how the Court's decisions have impacted the Nation, across the spectrum of human experience and relations. That this has happened could hardly be predicted from the robust debates held in the summer of 1787, when the delegates to the Constitutional Convention met in Philadelphia.

At the Constitutional Convention, on three separate occasions, the delegate debated and rejected a proposal to include the Judiciary in a panel that would review statutes enacted by Congress to determine constitutionality of them. Three times it was proposed that a Council of Revision be constituted and that the Council include representatives of the Judicial Branch. Three times the proposal was rejected. Ultimately, the Convention voted to adopt the Constitution as their proposal to the Congress. The proposed Constitution omitted the Council of Revision. The proposed Constitution left unmentioned any role for the Judicial Branch in evaluating statutes to determine their constitutionality.

Yet, as readers of this blog know, and as observers of the Supreme Court know, the Court claims to have that power, and exercises that power it claims to have. Indeed, in the face of court decisions that can only be described as exactly what decisions by a "Council of Revision" proceed from the Supreme Court, leaders of the other branches of the government too often, too consistently, retire from the field of civic battle, claiming that the Court's decision is final.

You might wonder how this outcome came from these preconditions, when the outcome was precisely rejected in the Constitutional Convention.

I propose, with no originality to the idea, that this happened by the deliberate accretion of power within the Judiciary. Case by case, decision by decision, either by direct taking of steps, or by laying the groundwork in its written explanations of the Constitution, the Supreme Court has built its base of strength and power.

That accretional process begins with Chief Justice John Marshall.

In Marbury v. Madison, a case on which I have previously blogged, William Marbury filed a suit in the Supreme Court seeking an Order that Secretary of State James Madison had violated his right to obtain a commission as a justice of the peace. Marbury had been nominated to the post by John Adams and confirmed by the Senate. Marbury's judicial commission had been drawn up. Acting as Secretary of State, John Marshall applied the Great Seal of the United States to the commissions. They were then left in the office of the Secretary of State when Jefferson succeeded Adams in the Presidency in 1800. Jefferson directed his Secretary of State, Madison, not to deliver up several commissions, including Marbury's.

Adams and Jefferson had been friends and correspondents, and would be again in the future. Adams, though, was a Federalist and Jefferson was not. Adams had supported the Alien and Sedition Acts. Jefferson had friends and acquaintances who were charged with violating the Acts. Jefferson would later say that the Revolution of 1800 (his description of the struggle that brought him to the presidency) was frustrated because the judiciary had been populated by lifetime appointed Federalist-sympathizing justices. He would not shoot his own foot by delivering even a single justice of the peace post to a Federalist.

Marbury brought his suit in the Supreme Court.

Congress had enacted a Judiciary Act. The Act authorized the Supreme Court to issue certain orders in cases before it. The order Marbury sought was a Writ of Mandamus. A Writ of Mandamus is an Order Mandating a government official to do something. That Judiciary Act did not, in fact, authorize the Supreme Court to allow Marbury to file his suit in the Supreme Court. [Article III of the Constitution creates the Judicial Branch of our federal government. It identifies certain categories of cases that may be filed as original matters there (suits between States are one example of such original actions). Article III also granted to Congress the power to create inferior federal courts, to provide for their jurisdiction, and to provide for appellate jurisdiction of the Supreme Court.] In resolving Marbury's suit, Chief Justice Marshall treated that Judiciary Act as though it authorized Marbury's suit, even though it did not do so.

As with Chief Justice Taney's decision in Dred Scott, Chief Justice Marshall's decision could have been brief. Because the Constitution did not say that Congress could, by statute, expand the categories of original jurisdiction cases, the Judiciary Act (as falsely interpreted by Marshall) had wrongly granted to Marbury the right to sue for his commission in the Supreme Court. Chief Justice Marshall could have written a brief opinion noting that the Court lacked jurisdiction over Marbury's cause and entered an Order dismissing the case.

Chief Justice Marshall did not choose the road less traveled, in which a justice simply does only that which is required to complete the task before him. Instead, he used the occasion of Marbury's suit to expound on the role and duty of the Supreme Court. On that topic, disregarding the utter silence of the Constitution on such a role for the Supreme Court, Marshall asserted that the Supreme Court had the power of "judicial review." He wrote:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

Marshall's deft move asserted a principle -- the pre-eminence of the Court in deciding the constitutionality of congressional acts -- in a case in which neither the Congress nor the President would be much inclined to take immediate corrective action. The Congress had passed out of the hands of the Federalists and the Presidency, too, with the election of Thomas Jefferson. So the decision -- rejecting Marbury's claim -- while it found fault with Jefferson and Madison for refusing the commission to Marbury, produced the result agreeable to Jefferson and Madison.

Still, that nugget of judicial review was laid into the law with Chief Justice Marshall's opinion in Marbury. That nugget provided a precedent on which he, and future justices of the Supreme Court, could lean in other, further expansions of the Judiciary. Those many expansions that transformed the Court from its original condition as "the least dangerous branch" to the political rights of the People, to the one it occupies today as "the most dangerous" one.

Finding the Origination Clause: History and Meaning

What follows is the third of three blog posts examining the origination clause of the United States Constitution and the recent decision of the United States this Court of Appeals for the District of Columbia analyzing a challenge to the Patient Protection And Affordable Care Act under the Origination Clause.  Part one consists of a review of the recent court decision holding that the Origination Clause requirement, namely that bills for raising revenue originate in the United States House of Representatives, was not a basis for concluding that the individual penalty for failing to purchase health insurance violated the Constitution. Part two challenges the presumption that policy for the entire nation may be created by decisions of judges in ordinary litigation. In this final part, I offer the reader the historical background for the Origination Clause so that they might, should they wish to do so, judge for themselves whether the United States Court of Appeals for the District of Columbia Circuit correctly concluded that the individual coverage penalty under Obama care did not violate the Origination Clause.

As previously noted, a federal appeals court in Washington, DC, held that one of the tax penalties imposed by Congress under the Patient Protection and Affordable Care Act does not violate the Constitution’s Origination Clause. Under Article I, section 7, of the Constitution, “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”  Judge Judith Rogers, writing for herself and two colleagues, concluded that, although the tax penalty is, in fact, a tax, and did, in fact, originate in the United States Senate, the provision did not violate the Origination Clause.  Judge Rogers based her conclusion on her analysis of the motivation of Congress that prompted the enactment of Obamacare.  Because, in her view, the Act was not adopted “to raise revenue,” the Origination Clause’s mandatory requirement -- origination in the House -- was inapplicable to the Act.

Perhaps Judge Rogers was right.  Perhaps she was wrong.

In this final post on the decision, I offers reasons, independently verifiable, that powerfully suggest that, although clever and facile, Judge Rogers is, in fact, wrong on this point of history, of constitutional meaning, and of law.

To judge for yourself whether Judge Rogers has “dishonored the arts of the historian and degraded the talents of the lawyer” by her “superficial and purposive interpretations of the past,” I offer some insight into the Origination Clause, its predecessor in English law, its advent in the Constitutional Convention of 1787, its construction by those who debated its inclusion in the Constitution, by those who interpreted its meaning early after its enactment, and its construction by the Supreme Court over the history of our Nation.  Finally, I propose a common sense problem embodied in Rogers’ approach that deflates any wind in the sails of her approach.

The Origination Clause

The Constitution provided a framework for a strengthened central government for the States.  The basics of that framework are found in the first three Articles of the Constitution.  Article I outlines the Legislative Branch, Article II outlines the Executive Branch, and Article III outlines the Judicial Branch.  In keeping with our English forebears, and State Charters and Constitutions predating the US Constitution, the States and the People endowed on the Legislative Branch the power to enact laws, including the power to raise funds for the operation of the government.  To raise those funds, Congress, the House of Representatives specifically, may originate “bills for raising revenue.” While the language is, seemingly, straightforward, a question does exist exactly what would constitute a bill for raising revenue.

The language “bills for raising revenue” did not spring full-grown from the head of the Zeusian participants in the constitutional convention. Rather, precedence in the constitutions of the colonies, the new states, and in English history offered guidance on the justification for an origination clause and the language of one. What follows here is a brief review of that pre-existing material on which the founding fathers could justifiably rely in their consideration of, and proposal of, 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.

This provision of the English Bill of Rights reflected a judgment that taxing or laying levies upon the English people could only be justified if the people themselves, through that legislative body which directly represented them, the House of Commons, originated such taxes or levies. Explaining, William Blackstone, in his Commentaries on the Law, wrote:

it is the an[c]ient indisputable privilege and right of the house of commons, that all grants of subsidies or parliamentary aids do begin in their house, and are first bestowed by them; although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature.

American Antecedents of the Origination Clause

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.

In response to the enactment of the Stamp Act, the Stamp Act Congress adopted a Declaration of Rights, expressing “with the warmest sentiments of affection and duty to his majesty's person and government. . . . ” That sentiment having been stated, the Stamp Act Congress then laid out arguments against the Stamp Act, and for the legitimacy of colonial legislatures.  They declared:

That his majesty's liege subjects in these colonies are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain,

That it is inseparably essential to the freedom of a people, and the undoubted rights of Englishmen, that no taxes should be imposed on them, but with their own consent, given personally, or by their representatives.

That the people of these colonies are not, and from their local circumstances, cannot be represented in the house of commons in Great Britain.

That the only representatives of the people of these colonies, are persons chosen therein by themselves; and that no taxes ever have been, or can be constitutionally imposed on them, but by their respective legislatures.

…..

That the late act of parliament entitled, an act for granting and applying certain stamp duties, and other duties in the British colonies and plantations in America, &c., by imposing taxes on the inhabitants of these colonies, and the said act, and several other acts, by extending the jurisdiction of the courts of admiralty beyond its ancient limits, have a manifest tendency to subvert the rights and liberties of the colonists.

That the duties imposed by several late acts of parliament, from the peculiar circumstances of these colonies, will be extremely burthensome and grievous, and from the scarcity of specie, the payment of them absolutely impracticable.

That as the profits of the trade of these colonies ultimately centre in Great Britain, to pay for the manufactures which they are obliged to take from thence, they eventually contribute very largely to all supplies granted there to the crown.

That the restrictions imposed by several late acts of parliament, on the trade of these colonies, will render them unable to purchase the manufactures of Great Britain.

….

As a matter of expedience, Parliament repealed the Stamp Act the year following its enactment, although the repeal may not have been because of the American colonial arguments or the Declaration of Rights.  Still, the experience had its impact on the political sensibilities of the American colonists.  They became acutely aware of the differences between their situation and those of their fellow Englishmen at home. They had no voice in Parliament.  Their colonial legislatures were subject to suspension.

By the time of the Revolutionary War, the newly independent States had assayed the importance of choosing the legislative house most closely aligned with the voice of the people, as the chamber in which legislation raising revenues for the government should originate. In fact, each of the newly independent states, but one, included an origination clause or money bill clause in their state constitutions.  I offer here are a few examples of those provisions:

Delaware’s 1776 Constitution stated:

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.

Maryland’s 1776 Constitution stated:

That the House of Delegates may originate all money bills, propose bills to the Senate, or receive those offered by that body; and assent, dissent, or propose amendments; that they may inquire on the oath of witnesses, into all complaints, grievances, and offences, as the grand inquest of this State; and may commit any person, for any crime, to the public jail, there to remain till he be discharged by due course of law. They may expel any member, for a great misdemeanor, but not a second time for the same cause. They may examine and pass all accounts of the State, relating either to the collection or expenditure of the revenue, or appoint auditors, to state and adjust the same. They may call for all public or official papers and records, and send for persons, whom they may judge necessary in the course of their inquiries, concerning affairs relating to the public interest; and may direct all office bonds (which shall be made payable to the State) to be sued for any breach of duty.

The 1776 Constitution of New Hampshire provided:

That all bills, resolves, or votes for raising, levying and collecting money originate in the house of Representatives.

The 1776 New Jersey Constitution stated:

That the Council shall also have power to prepare bills to pass into laws, and have other like powers as the Assembly, and in all respects be a free and independent branch of the Legislature of this Colony; save only, that they shall not prepare or alter any money bill-which shall be the privilege of the Assembly; that the Council shall, from time to time, be convened by the Governor or Vice-President, but must be convened, at all times, when the Assembly sits; for which purpose the Speaker of the House of Assembly shall always, immediately after an adjournment, give notice to the Governor, or Vice-President, of the time and place to which the House is adjourned.

Likewise, the 1776 Constitution of South Carolina required:

All money-bills for the support of government shall originate in the general assembly, and shall not be altered or amended by the legislative council, but may be rejected by them. All other bills and ordinances may take rise in the general assembly or legislative council, and may be altered, amended, or rejected by either.

The 1776 Constitution of Virginia stated:

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

Together with the English Bill of Rights, and these several state constitutional provisions, the reader should have a good sense from whence the expression “no taxation without representation” arose.

The Origination Clause and the Constitutional Convention of 1787

During the Constitutional Convention of 1787, in Philadelphia, the delegates heartily debated the proposed Origination Clause.  Elbridge Gerry, of Massachusetts, first proposed a clause requiring that bills raising revenue originate in the United States House of Representatives. In Gerry’s view, “Taxation and representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses.” More fully, Gerry stated, “He “moved to restrain the Senatorial branch from originating money bills. The other branch was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings. If the Senate should be allowed to originate such bills, they wd. repeat the experiment, till chance should furnish a sett of representatives in the other branch who will fall into their snares.”

Virginia’s Edmund Randolph suggested that the problem of the Gerry’s language was that it could be interpreted so broadly that it could apply to legislation that only incidentally raised money, and proposed modifying it.

(This image is excerpted from Max Farrand’s Debates of the Federal Convention, available online here.)

In the excerpt shown here, note the language proposed by Edmund Randolph:  “Bills for raising money for the purpose of revenue....”  This express statement of limitation, namely that only the House could originate those bills that (a) raised money (b) for the purpose of revenue – was rejected by the Constitutional Convention.

James Madison’s thoughts, responding to Randolph’s proposal, were based on the Nation’s short and recent history with Great Britain, were precisely the issue of multipurpose actions were at stake.  There, the colonists conceded the authority of Parliament to regulate trade, he reminded the delegates, but rejected their power to raise revenues from the colonies without representation of the colonists.

The Convention referred Gerry’s proposal to the Compromise Committee on Representation. In turn, the Compromise Committee’s proposal included an Origination Clause. George Mason, of Virginia, explained why the Committee had proposed, when reporting back to the Convention, the Origination Clause:

The consideration which weighed with the Committee was that the 1st. branch would be the immediate representatives of the people, the 2d. would not. Should the latter have the power of giving away the peoples money, they might soon forget the Source from whence they received it. We might soon have an aristocracy. He had been much concerned at the principles which had been advanced by some gentlemen, but had the satisfaction to find they did not generally prevail. He was a friend to proportional representation in both branches; but supposed that some points must be yielded for the sake of accom[m]odation.

Benjamin Franklin supported the Origination Clause.  His views, expressed to the Convention, were summarized in convention notes as follows:

Docr. Franklin did not mean to go into a justification of the Report; but as it had been asked what would be the use of restraining the 2d. branch from med[d]ling with money bills, he could not but remark that it was always of importance that the people should know who had disposed of their money, & how it had been disposed of. It was a maxim that those who feel, can best judge. This end would, he thought, be best attained, if money affairs were to be confined to the immediate representatives of the people. This was his inducement to concur in the report. As to the danger or difficulty that might arise from a negative in the 2d. where the people wd. not be proportionally represented, it might easily be got over by declaring that there should be no such Negative: or if that will not do, by declaring that there shall be no such branch at all.

In a subsequent debate of the Convention on amending the Origination Clause, George Mason rejected attacks on the Origination Clause.

“Col. Mason was unwilling to travel over this ground again. To strike out the section, was to unhinge the compromise of which it made a part. The duration of the Senate made it improper. He does not object to that duration. On the Contrary he approved of it. But joined with the smallness of the number, it was an argument against adding this to the other great powers vested in that body. His idea of an Aristocracy was that it was the gover[me]nt. of the few over the many. An aristocratic body, like the screw in mechanics, worki[n]g. 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.”

Luther Martin, in 1788, criticized the Origination Clause during the debates in the States on ratification.  In his “Genuine Information,” he reported to the Legislature of Maryland on the conduct and debates of the Philadelphia Convention.  His report corresponded to the proposals offered by a committee of the Convention, the seventh of which proposed to limit the power to originate bills for the raising of revenue by placing it solely in the House of Representatives, subject to amendment by the Senate and a veto power in the Chief Executive:

“The seventh section of this article was also the subject of contest--It was thought by many members of the convention, that it was very wrong to confine the origination of all revenue bills to the house of representatives, since the members of the senate will be chosen by the people as well as the members of the house of delegates, if not immediately, yet mediately, being chosen by the members of the State legislature, which members are elected by the people, and that it makes no real difference whether we do a thing in person, or by a deputy, or agent, appointed by us for that purpose.

That no argument can be drawn from the House of Lords in the British constitution, since they are neither mediately nor immediately the representatives of the people, but are one of the three estates, composing that kingdom, having hereditary right and privileges, distinct from, and independent of, the people.

That it may, and probably will be a future source of dispute and controversy between the two branches, what are, or are not revenue bills, and the more so, as they are not defined in the constitution; which controversies may be difficult to settle, and may become serious in their consequences, [there] being no power in the constitution to decide upon, or authorised in cases of absolute necessity to terminate them by a prorogation or dissolution of either of the branches; a remedy provided in the British constitution, where the King has that power, which has been found necessary at times to be exercised in case of violent dissentions between the Lords and Commons on the subject of money bills.

That every regulation of commerce; every law relative to excises, stamps, the post-office, the imposing of taxes, and their collection, the creation of courts and offices; in fine, every law for the union, if enforced by any pecuniary sanctions, as they would tend to bring money into the continental treasury, might and no doubt would be considered a revenue act--That consequently the senate, the members of whom will it may be presumed, 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 common concerns of the States, and with the means of providing for them, will be rendered almost useless as a part of the legislature; and that they will have but little to do in that capacity, except patiently to wait the proceedings of the house of representatives, and afterwards examine and approve, or propose amendments.”

Notice that Martin’s objections to the origination clause confirm the absence of a definition in the constitutional provision for bills raising revenue. Nonetheless, his argument strongly suggest a broad reading was accepted for bills raising revenue: “That every regulation of commerce; every law relative to excises, stamps, the post-office, the imposing of taxes, and their collection, the creation of courts and offices; in fine, every law for the union, if enforced by any pecuniary sanctions, as they would tend to bring money into the continental treasury, might and no doubt would be considered a revenue act.”

In 1788, Theophilus Parsons addressed the Origination Clause during an address to the Massachusetts Convention on the Ratification of the proposed Constitution:

“It is objected that it is dangerous to allow the Senate a right of proposing alterations or amendments in money bills; that the Senate may by this power increase the supplies, and establish profuse salaries; that for these reasons the lords in the British Parliament have not this power, which is a great security to the liberties of Englishmen. I was much surprised at hearing this objection, and the grounds upon which it was supported. The reason why the lords have not this power, is founded on a principle in the English constitution, that the commons alone represent the whole property of the nation; and as a money bill is a grant to the king, none can make the grant but those who represent the property of the nation; and the negative of the lords is introduced to check the profusion of the commons, and to guard their own property. The manner of passing a money bill is conclusive evidence of these principles; for, after the assent of the Lords, it does not remain with the clerk of the Parliament, but is returned to the commons, who, by their speaker, present it to the king as the gift of the commons. But every supposed control the Senate, by this power, may have over money bills, they can have without it; for, by private communications with the representatives, they may as well insist upon the increase of the supplies, or salaries, as by official communications. But had not the Senate this power, the representatives might take any foreign matter to a money bill, and compel the Senate to concur, or lose the supplies. This might be done in critical seasons, when the Senate might give way to the encroachments of the representatives, rather than sustain the odium of embarrassing the affairs of the nation; the balance between the two branches of the legislature would, in this way, be endangered, if not destroyed, and the Constitution materially injured. This subject was fully considered by the Convention for forming the constitution of Massachusetts, and the provision made by that body, after mature deliberation, is introduced into the federal Constitution.”

The Virginia Ratifying Convention included a debate on the Origination Clause. That debate, between James Madison and William Grayson, matched the wits of a leading Federalist, Madison, and a leading anti-Federalist, Grayson.  While the debate between the two is a fascinating read, and study on the division of representation and the division of power, at no point in the debate is the question addressed what constitutes a bill for the raising of revenue.

Early Constructions of the Origination Clause

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 Virginia’s representatives, Madison and White:

“Mr. White. The Constitution, having authorized the House of Representatives alone to originate money bills, places an important trust in our hands, which, as their protectors, we ought not to part with. I do not mean to imply that the Senate are less to be trusted than this house; but the Constitution, no doubt for wise purposes, has given the immediate representatives of the people a control over the whole government in this particular, which, for their interest, they ought not to let out of their hands.

Mr. Madison. The Constitution places the power in the House of originating money bills. The principal reason why the Constitution had made this distinction was, because they were chosen by the people, and supposed to be the best acquainted with their interest and ability. In order to make them more particularly acquainted with these objects, the democratic branch of the legislature consisted of a greater number, and were chosen for a shorter period; that so they might revert more frequently to the mass of the people.”

Again, note that this debate goes to the question of the value of assigning the Origination power to the House of Representatives, not to the meaning of bills for raising revenue.

Joseph Story, writing in his Commentaries on the Constitution, addressed the debate over the Origination Clause, and, in part, responded to the arguments made by Luther Martin, in his Genuine Information. Story wrote:

“What bills are properly ‘bills for raising revenue,’ in the sense of the constitution, has been matter of some discussion. A learned commentator supposes, that every bill, which indirectly or consequentially may raise revenue, is, within the sense of the constitution, a revenue bill. He therefore thinks, that the bills for establishing the post office, and the mint, and regulating the value of foreign coin, belong to this class, and ought not to have originated (as in fact they did) in the senate. But the practical construction of the constitution has been against his opinion. And, indeed, the history of the origin of the power, already suggested, abundantly proves, that it has been confined to bills to levy taxes in the strict sense of the words, and has not been understood to extend to bills for other purposes, which may incidentally create revenue. No one supposes, that a bill to sell any of the public lands, or to sell public stock, is a bill to raise revenue, in the sense of the constitution. Much less would a bill be so deemed, which merely regulated the value of foreign or domestic coins, or authorized a discharge of insolvent debtors upon assignments of their estates to the United States, giving a priority of payment to the United States in cases of insolvency, although all of them might incidentally bring revenue into the treasury.”

Supreme Court Interpretation and Application of the Origination Clause

Suppose you make a contract with a local builder for the construction of your new home.  The contract calls for “a deposit before construction commences, progress payments of one quarter of the total contract amount” at defined completion points, requires the general contractor to “regularly report on the progress of construction,” and conditions receipt of the final payment on “satisfaction of the buyer.” The contractor calls you as the project is nearing completion and invites you to inspect the home on a near future date.  The contractor has completed the house to specifications.  All elements are met in the construction.  You inspect the home, note that all specifications are as you stated. 

Nonetheless you withhold a statement of satisfaction and refuse final payment.  You do so, at least based on your statements to the contractor, because you are “not satisfied.”  You refuse to state a ground of satisfaction.  The contractor refuses to surrender the premises to you, refuses to transmit the certificate of occupancy he obtained for you, and demands payment.  You sue.  He sues.

The contract does not REQUIRE a buyer of services to falsely state satisfaction if he is unsatisfied.  The contract does not require the buyer to state expressly the grounds of dissatisfaction (a punch list, for example, of needed corrections to the project).  The contract does not expressly require that the buyer’s judgment be a reasonable one.  It is likely that in the trade of construction there are accepted practices related to conducting business, including in the formation of contracts.  The contractor’s attorney insists that “everyone knows” that the judgment regarding satisfaction has to be a “reasonable” one, and that, to be reasonable, a judgment has to be articulated, stating particular grounds for dissatisfaction.  More, he argues, because you do not do so, your refusal to state satisfaction is “unreasonable” and therefore, does not constitute a proper denial of satisfaction.  In the attorney’s view, you should be required to make the final payment on the contract.

What is a judge to do?

Does a judge hold the parties to the strict standard of their written agreement? That would favor the buyer of the home, whose refusal to state why they are not satisfied seems eminently unreasonable to the judge. Does the judge color his reading of the contract with the construction trade’s assumption that a requirement of “satisfaction” actually means “satisfied according to reasonable judgment?”  That would favor the contractor that may have failed to reasonably accomodated the concerns of the buyer?

You see, the business of judging actually involves these real world kinds of conflicts, commanding real world resolutions.

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.

So, yes, I think it obvious that a federal judge, a federal court, must be able to apply the Constitution to the cases before it.

But what about the cases in which it is argued that the meaning of the Constitution is unclear?  Does a federal judge have the power to consider that question, and to resolve it?  Again, I think the obvious answer is that a judge does have that power.

These blog posts do not challenge that power.  Instead, they challenge the exclusivity of that power.  Do courts alone have such a prerogative?  Although the view that courts enjoy that prerogative is the accepted norm today, it certainly is far from clear that the Framers of our Constitution, or other well-regarded Americans thought so.  For more on this point, revisit the second post in this series.

Still, a thoughtful examination of the meaning of the Origination Clause, an examination that provides you, dear reader, with sufficient background to make your own, informed judgment about the meaning of that clause, and about the quality of Judge Rogers’ decision, should also provide you insight into how the Supreme Court has construed the Origination Clause.

The Commentaries on the Constitution, written by Joseph Story, mentioned above, embody the views of a Supreme Court justice, Justice Story.  During his tenure on the Court, in 1813, Story authored an opinion, United States v. Mayo, 26 Fed. Cas. 1230, 1231 (C. C. Mass. 1813)(No. 15,755), in which he concluded that laws subject to the Origination Clause are only those laws made for the direct and stated purpose of creating revenue for the government. In Story’s opinion, it was not an Origination Clause defect that a law originated in the Senate, rather than the House, where it indirectly or incidentally enhanced the treasury.

Three cases decided by the Supreme Court show that the Court has, thus far, aligned itself with Story’s construction of the Constitution.  In these cases, as direct holdings, or as statements of principle, the Court sets out the view of the Origination Clause that it is limited only to a class of laws enacted for the primary purpose of raising revenue and with the principal result that the funds raised thereby apply to the general obligations and expenses of the federal government, rather than a specific project or purpose. 

In Twin City Bank v. Nebeker, 167 U.S. 196 (1897), the Supreme Court decided the constitutionality of a federal statute creating a currency and charging banks a fee related to the currency circulating at any one time did not violate the Origination Clause.  The Court concluded that the prime motivation in Congress for the law was creating a national currency, not imposing a fee that generated income to the federal fisc.  In the Court’s view, income to the federal government was merely incidental to the creation of the currency.

Shortly after, in Millard v. Roberts, 202 U.S. 429 (1906), in a case considering an Origination Clause challenge to federal legislation imposing a property tax in the District of Columbia, the revenue from which was to be used for the construction of railroad terminals in the Nation’s Capitol, the Court concluded that the law was adopted to raise revenue for that specific purpose, not to meet the federal government’s general expenses or obligations.

Finally, in United States v. Munoz-Flores, 495 U.S. 385, 398 (1990), the Supreme Court rejected an Origination Clause challenge to a federal statute adopting a “special assessment” to be imposed on those convicted of misdemeanors in federal court.  The assessment imposed by Congress would help meet the expenses of crime victim compensation programs.  While the Court acknowledged that the assessment created a source of income for the federal government, that result was not determinative.  Instead, in the Court’s view, the assessment was indistinguishable from the fee in Nebeker and the tax in Millard.  In a footnote, the Supreme Court did offer, as a point of distinction, that some cases might arise if “the program funded were entirely unrelated to the persons paying for the program” or where “the connection between payor and program was more attenuated….”

Rogers’ Approach Disrespects the Common Sense of the Origination Clause’s Words and Purpose

Judge Rogers adopted the approach taken by the Supreme Court, namely the search for the intent of Congress that animated the enactment of the Patient Protection and Affordable Care Act.  Because she concluded that the purpose of the Congress was to remediate systemic issues with America’s health insurance policies, the fact that the Act raises revenue (a point she concedes) is irrelevant.  Is Rogers’ conclusion consistent with prior Supreme Court interpretations of the Origination Clause?  I think the obvious answer is yes, but read the cases cited above for yourself and see if you agree.

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 Rogers’ decision and its prior rulings:  the history of the Origination Clause.  Remember Edmond Randolph?  He proposed a refinement to the language of the Origination Clause, as I mentioned above.  His proposal, rejected by the Convention, would have limited the prerogative of the House of Representatives regarding Origination of revenue legislation.  He proposed that the Clause be phrased, “bills for raising money for the purpose of revenue.”  For the purpose of raising revenue.  You see, Randolph looked down the road into the future lying ahead of this nascent nation and concluded that the Origination Clause, a clause he opposed, could be greatly limited by including an intentionality requirement.

The Convention rejected Randolph’s limiting language.  It does not return in further debates.  It does not appear in the proposed Constitution.  It is not ratified by the States.  It died, so to speak, in convention.

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 Randolph’s rejected refinement of the Clause.  Rejected at offering.  Refused in Committee.  Disappeared from Convention.  Excluded in ratification.

Yet the Federalist’s need for such a restraint on the House was evident and real.  Despite its rejection, refusal, disappearance and exclusion, it rises in the writing of Justice Joseph Story.  Yes, Story was a profoundly well-respected author on the Constitution. His views aught not be turned aside without appropriate consideration.  Yet, at the end of the day, a single, consistent and fixed rule for the construction of laws has guided the Supreme Court’s cases, has informed legislative bodies enacting laws, and has even advised those that enter into private contracts and agreements.  And the application of that principle leaves no doubt to me that Story is wrong, that Rogers is wrong, and that Matt Sissel is right.

The Supreme Court has stated that principle in this way:

“Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.”

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.

Shall We, Under the Constitution, Govern Ourselves? Or, Shall We Be Ruled Under Tyranny?

 (This is Part II of a Blog evaluation of the recent federal appeals court decision holding that the tax imposed for failing to purchase health insurance did not violate the Origination Clause of the Constitution. You can read Part I, in which the decision is summarized, here.  Here, I raise old questions about the nature of our government and about the existence of a putative duty of citizens to respect decisions of a federal court that purport to interpret and apply one of the fundamental documents of the Nation, the United States Constitution.)

As previously explained, the DC Circuit has rejected a constitutional challenge to the tax imposed by the Patient Protection and Affordable Care Act.  That challenge asserted that the tax violated the Origination Clause of the Constitution because the legislation imposing it originated in the Senate, rather than the House of Representatives.  In my previous post, I concluded:  “For now, it would seem that the Origination Clause theory is in trouble.”

Perhaps it is in bad form to open a conversation with a litany of questions.  Nonetheless, we face the consequences of a lazy Congress, a tyrannical president, and an unhistorical court decision.  A few questions are, I think, a good way to frame our circumstances.

Should the Origination Clause challenge to the tax imposed for failing to purchase health insurance fail?

Should the decision of three appointed judges bind a Nation and its People to their determination of these intertwined issues?

Should the Origination Clause be understood to apply only to those bills about which the Congress entertained “raising revenue” as its animating purpose and intention? 

These questions, how we examine them, how we answer them, decide more than the constitutionality of the Act.  Rather, what we say about these questions, the principles we bring to bear on them, reveal much about how we, as a People, have progressed under the Constitution, how we have learned the lessons of the setting up of, and governance of, our Nation.

Are we bound to bow to the conclusions reached by three judges in this matter? Do a federal court’s neat machinations around the Origination Clause literally command the heartfelt obedience and respect of us all?  To that decision, as free people under this Constitution, do we owe some kind of fealty?

The answer to each of these questions might be “yes,” but I think the proper answer to each is “no.”

By saying “no,” I join Abraham Lincoln in rejecting a judicial power to set policy for the Nation, and in rejecting the notion that construction and interpretation of the Constitution is the sole province of the Judicial Branch.

In his First Inaugural Address, Lincoln concluded that the Supreme Court, if its decisions resolved questions of national policy conclusively, would supplant the People as their own governors.  As a People, have we actually come to the place that Abraham Lincoln forecast over 150 years ago?  Then, as the nation reeled from its battles over regulation or prohibition of slavery and over the legal theory of secession from the Union, the Supreme Court took a swipe at the policy-making and legislative power of the People, exercised through the Congress, when it decided Dred Scott versus Sanford. 

Dred Scott had lived most of his life in the service of a military doctor and his wife. In the course of that service, Scott had lived in States that recognized the right to own slaves and in States that prohibited slavery and rejected the idea of ownership of one man by another.

In Dred Scott, the Court rejected Scott’s claim that, because he had resided in Free States while under the ownership of his master, he had, in fact, become a free man.  So, in essence and in fact, the Court rejected Scott’s claim to freedom.  The Supreme Court -- ever the beacon of human rights and liberty -- concluded that Africans in America were not citizens of the United States, could not, in fact, be citizens of this Nation.  Consequentially, the Court concluded that Scott lacked standing to sue in federal court.  On the substantive question, the Court concluded that restrictions on owning and importing slaves -- imposed on federally administered territories prior to their admission to the Union as States – had been beyond the power of the Congress to impose. 

The upshot of the matter:  Scott’s case was dismissed.  More importantly, the decision resolved two important questions of constitutional construction.  As a consequence important policy questions arising from the dispute among the States over slavery were, seemingly, placed beyond the power of the People, through their Legislatures, to address.

That result, of great moment to People who would govern their own affairs, inspired Lincoln’s observation of an eminent tribunal, the Supreme Court, displacing the People in the affairs of policy making.  In his Address, faced with resolutions of secession and threats imminent to federal offices and officers within the Southern States, Lincoln would not avoid addressing these same central issues of policy purportedly put beyond republican amelioration by the Dred Scott decision.

Lincoln observed the none-too-subtle shift of the locus of power accomplished by settling upon the Court a legitimized power to impose policy by simply deciding case: 

A majority, held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.

As Lincoln observed, in its deciding of Dred Scott, by arrogating to itself the power to interpret the Constitution as its exclusive province, the Supreme Court denied to the Congress a power to regulate slavery in federally administered territories.  In doing so, it stripped the People of the United States of the power to be their own governors in this particular.  Thus, as he said, to that extent the People will have surrendered that power into the hands of that “eminent tribunal.” 

Lincoln, ever a gentleman, did not call out the justices of the Court as fabricators.  In fact, his address portrays the Court as having no choice in the matter but to decide the cases before it:  “Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.”   Without imputing to Honest Abe a lack of candor regarding his views on the Court’s obligations, his words suggest a mechanical, preference-free, dispensation of justice.  Lincoln’s caution in the moment has not restrained others to make more candid observations.

Mark DeWolfe Howe, attorney and historian, rendered one of the most disturbing indictments of the Supreme Court’s decision making process with which I am familiar.  Howe, lecturing at Harvard Law School, responded to the Court’s decisions on religion and the law.  The lectures, given in the early 1960’s, became the basis of his book, “The Garden and the Wilderness.” As Howe set the stage for his exploration of the Court’s Religion Clause cases, he first addressed the roles played by the justices in deciding cases. 

Of course, their principal roles were as judges of the Nation’s highest tribunal.  In reaching their decisions, Howe noted, the justices often also took on the role of historians.  In his view, however, the justices as historians often subverted history in service of intended outcomes. 

Howe began his consideration of the Religion Clause decisions by demonstrating that the Court’s choice to pick a metaphor – the wall of separation between church and state – was, in fact, the Court’s choice to pick an outcome.  More, by focusing on Jefferson’s Wall of Separation, the Court put its historical and juridical focus on the history of the struggle for religious freedom in Virginia. By doing so, the Court imported to the meaning of the Religion Clause the peculiarities of Virginia’s struggle.  Indeed, the Court vaunted the Virginia struggle for religious liberty over every other possible source of meaning for the Religion Clauses.

Howe examined the intersection of those two roles played by Supreme Court justices:

Among the stupendous powers of the Supreme Court of the United States, there are two which in logic may be independent and yet in fact are related.  The one is the power, through an articulate search for principle, to interpret history.  The other is the power, through the disposition of cases, to make it.  Phrased somewhat differently, the contrast which I have in mind is that between the scholar’s capacity to conduct a groping search for past even and initial purpose and the statesman’s talent for making the decisive choice of a rule of conduct which he believes to be suitable for the government of the future.

Howe suggests that a justice may be a scholar and a statesman of a kind, but that, in rendering decisions, the risk is real that a justice can, in fact, become a policy-maker designing our lives under the framework of law.  He continues:

It is the common-law tradition, perhaps, which leads the Court and those who study its processes to assume (or had I better say “pretend”?) that the history which is made by the Court’s decisions is merely the realization of the past which the learning of the justices and their clerks has uncovered.  The judge as statesman, purporting to be the servant of the judge as historian, often asks us to believe that the choices that he makes –the rules of law that he establishes for the nation—are the dictates of a past which his abundant and uncommitted scholarship has discovered.

From these thoughts, Howe contemplates that a reasonable reader will have sensed in his words doubt of the Court’s adequacy in interpreting our nation’s history.  If the reader has done so, Howe explains, it is likely the product of the reader realizing the intention of the writer:

I believe that in the matters at issue the Court has too often pretended that the dictates of the nation’s history, rather than the mandates of its own will, compelled a particular decision.  By superficial and purposive interpretations of the past, the Court has dishonored the arts of the historian and degraded the talents of the lawyer.  Such dishonoring and degrading may not be of large moment when the history that the Court manipulates is merely “legal history”—the story, that is, of the law’s internal growth and development.  When, however, the Court endeavors to write an authoritative chapter in the intellectual history of the American people, as it does when it lays historical foundations beneath its readings of the First Amendment, then any distortion becomes a matter of consequence.

That is, indeed, a telling indictment of Supreme Court decision-making processes in the Religion Cases from the late 1940s forward.  The indictment applies, I think, with equal weight to Judith Rogers’ opinion for the DC Circuit on the Origination Clause, and her application of her construction of the Origination Clause to Matt Sissel’s challenge to the tax imposed under the individual mandate.  

There is no clause of the Constitution assigning to the Supreme Court the power or duty to construe the Constitution in a manner conclusive of constructions given to that document by the Congress or by the President. If you doubt it, read Article III of the Constitution for yourself. Today, of course, few dispute the Court’s pre-eminent authority to do so, even in the absence of an express designation of such a duty or power.  That outcome might have surprised some delegates at the Constitutional Convention of 1787, but would not have surprised Alexander Hamilton, the author of the Federalist No. 78.

Although the delegates to the Constitutional Convention agreed to conduct their sessions in secret, several attendees took notes, and a number of speeches, in addition, were rendered from written manuscripts.  Together the notes and speeches give us the opportunity to listen in as the Convention considered how to make “a more perfect Union.”

Early in the Convention, James Madison’s proposal, “The Virginia Plan,” was offered for the consideration of the delegates then present.  Among the points proposed was one to create a council that would, essentially, sit in judgment of congressional acts to determine their constitutionality and wisdom.  This text explains the point proposed:

“Resolved that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, and every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by — of the members of each branch.”

Note that Madison expressly proposed including members of the federal judiciary on a Council to provide a pre-operative clearance for federal legislation. This proposal was rejected, not just once, but on three separate occasions.  The only provision of the Constitution that approached it was the grant of the veto power to the Executive, itself subject to override by two thirds votes of each Chamber of the Congress.

Unfortunately, for truth and for history, the delegates to the Constitutional Convention pledged themselves to secrecy regarding their proceedings.  As a consequence, no general awareness existed amongst the People and the States that this idea – a “super-legislature” that could sit in judgment of the constitutionality of the Acts of the Congress and the laws of the States – had been rejected three times in the considerations of the Convention.  Despite the rejection of the idea of a “council of revision,” delegates did argue that the structure of the Constitution supported the notion that the federal courts would have authority to decide such questions of constitutionality, and the idea of such a power was also the subject of debate in the Ratification Conventions of the States.

I would not want to leave you with the notion that this power, the judicial power to declare an act of Congress void, or to interpret the meaning of the Constitution, was novel and never considered by the Convention that framed the Constitution, or the State Conventions that ratified it.  Rather, it is sufficient to note that there is a history to this question of the power of constitutional interpretation, and to note that wiser minds than mine have disputed that it is the sole or exclusive province of the Courts to do so.

Beyond the veil of secrecy for the Convention, there was also the campaign of propaganda related to the debates in the States over ratification.  That propaganda war, principally consisting of published letters by opposing factions of Federalists and Anti-Federalists, served to educate the People as to the proposed meaning of the Constitution, its purpose, its strengths, its weaknesses and its dangers. 

One Constitutional Convention delegate, Robert Yates, took the Antifederalist position during the debates of the States on ratification.  In his eleventh essay opposing the Constitution, writing under his nom du plum “Brutus,” explained the danger of depositing the sole power of construing the Constitution in the Judicial Branch:

“[I]n their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.” 

Arguing for the Constitution, and seeking to mollify fears that a power of judicial review would make the Judicial Branch central and powerful to the federal government, Alexander Hamilton expressed the view that, to the contrary, the Judiciary would least likely present threats to the rights and liberties of the people:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Among those wiser minds, in addition to Lincoln, and delegate Robert Yates, Jefferson is particularly notable.  His thoughts on this power of the judiciary and his conclusion of its danger to self-government he expressed in a letter to William Jarvis, written in 1820.  Jarvis had provided to Jefferson a copy of his book, “Republican.”  Having given the book a cursory examination initially, Jefferson chose to address the question of the power of judicial review in his letter of appreciation for the book.  He wrote: 

“You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is ‘[a good judge expands his power],’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.

The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. []

[T]he constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions, because the laws of [private property] and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough.

I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

Still, while maintaining the respect of those who studied the records of the Convention, of the Ratification Conventions and of the public dialogue of the Federalist and the Anti-Federalists, one could yet hold the view that the Judicial Branch did not own the Constitution, nor possess the sole power to construe it, nor the power to declare the Acts of the Congress or of the State legislatures null and void. Ultimately, such a view notwithstanding, the Supreme Court, in a series of decisions, arrogated to itself the power to interpret the Constitution as the final arbiter of its meaning, and the powers to declare federal and state laws unconstitutional.

Professor Howe, in the lectures mentioned above, nonetheless counsels us that we are not the mere pupils of a history drafted and crafted by judges.  Instead, as to the general history of our People, of our government, and of our founding, we have judgment equal in significance to that of judges.  What remains, then, is for we, the People, to consider whether Judge Judith Rogers and her colleagues correctly construed the Origination Clause and correctly applied that Clause to the challenge to the individual mandate penalty under Obamacare.