In a Bench Memos post, my friend Matt Franck objects to the contention in my column for last weekend that the Constitution’s Origination Clause (Art. I, Sec. 7) gives the House of Representatives primacy over spending as well as taxing. Matt claims that my interpretation is bereft of historical support, a defect I’m said to camouflage by an extravagant reading of an “at best . . . ambiguous” passage in Madison’s Federalist No. 58.
It is Matt’s history, though, that is incomplete. As Mark Steyn observes, there is a rich Anglo-American tradition of vesting authority over not merely taxing but also spending in the legislative body closest to the people. This tradition, stretching back nearly to the Magna Carta, inspired the Origination Clause. It also informed Madison, whose ruminations, besides being far from ambiguous on the House’s power of the purse, are entitled to great weight — not only because he was among the Constitution’s chief architects but also because his explication of the Framers’ design helped induce skeptics of centralized government and its tyrannical proclivities to adopt the Constitution.#ad#
Plainly, Matt is correct that the Origination Clause refers to “bills for raising revenue.” From the time it was debated at the Philadelphia convention, however, the concept at issue clearly referred to more than tax bills. It was about reposing in the people, through their most immediately accountable representatives, the power of the purse. Indeed, the term persistently used throughout the Framers’ debates was “money bills” — the phrase used by Elbridge Gerry, perhaps the principal advocate of the Origination Clause, when (as the debate records recount) he “moved to restrain the Senatorial branch from originating money bills. The other branch [i.e., the House] was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings.”
Matt portrays my position as eccentric. Nevertheless, the belief that the Origination Clause conveys the House’s holding of the purse strings — i.e., that it refers to the output as well as the intake of government revenue — is hardly unique to me. The Heritage Foundation’s Guide to the Constitution, for example, notes that the clause was meant to be “consistent with the English requirement that money bills must commence in the House of Commons.” Traditionally, that requirement aggregated taxing with spending — the “power over the purse” — which the Framers sought to repose “with the legislative body closer to the people.”
Similarly, the Annenberg Institute for Civics, in its series on the Constitution, instructs students that the Clause means “the House of Representatives must begin the process when it comes to raising and spending money. It is the chamber where all taxing and spending bills start” (emphasis added). To be sure, the lesson goes on to state that “only the House may introduce a bill that involves taxes.” Yet this obviously would not suffice to explain the conclusion that the House must “begin the process” when “spending money” — as well as raising money — is involved. That conclusion, like Madison’s, draws on the fact that the Framers intended to mirror the venerable English tradition of vesting the all-important power of the purse in the people’s direct representatives.
Mark Steyn recounts the Westminster practice, since the mid-17th-century reign of Charles II, that the Commons would not permit the Lords to alter “money bills.” In tracing the practice back much further, I am indebted to Nicholas Schmitz, a Rhodes scholar and Marine veteran who has studied the ancient Anglo roots of the Origination Clause. From his work I’ve learned that it was already solidified custom by the reign of Richard II (1377–99) that “grants” were the province of Commons, albeit, back then, “with the assent of the Lords.”
“Grants” did not refer merely to the extraction of assets by taxation; the term is also concerned with the purpose to which these funds were to be put. England’s 1689 Bill of Rights thus specified that a “grant of Parliament” was a necessary precondition to “levying money for or to the use of the crown.” Such grants were, in essence, appropriations. As the process evolved, the House of Commons structured taxes strictly in accordance with the specific purposes cited by the crown. It was very much a two-sided ledger, with Commons jealously guarding its oversight of both money in and money out.
As a number of the Framers were admirers of Locke, it is also worth remembering Locke’s teaching that governments are formed to protect private property. The concept stems, in part, from the (by then) established understanding that the state could legitimately extract the citizen’s property only by the consent of the people’s representatives for a proper public purpose. That is the foundation of the Origination Clause.
Given these roots, it should come as no surprise that, at the time of the Founding, several of the state constitutions vested in their lower legislative houses the prerogative of, in the words of Georgia’s constitution, initiating “bills for raising revenue or appropriating moneys.” Indeed, in famously supporting colonial opposition to the Stamp Act in 1765, William Pitt observed, “The Commons of America, represented in their several assemblies, have ever been in possession of the exercise of this their constitutional right of giving and granting their own money. They would have been slaves if they had not enjoyed it” (emphasis added).#page#
Maryland’s lower house, to take one example, was responsible for initiating “money bills,” which were defined as “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” (emphasis added). In Massachusetts, the home of Elbridge Gerry, colonial practice was that taxes and “money bills” were the privilege of the House of Representatives, with the upper house empowered only to concur or not concur. The Commonwealth’s 1780 constitution, adumbrating the federal Constitution’s Origination Clause, mandated that “money bills shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.”#ad#
Let’s move directly to the 1787 convention in Philadelphia.
One of the major challenges confronting the delegates was to broker the competing claims of small and large states. As Franklin summarized, “If a proportional representation takes place, the small States contend that their liberties will be in danger. If an equality of votes is to be put in its place, the large States say their money will be in danger.” This resulted, of course, in the great compromise: equality among states in the Senate and proportional representation (by population) in the House. But this arrangement was inadequate to quell the large states’ fears; it was also necessary to tinker with the powers assigned to the two chambers. As Franklin put it, the Senate would be restricted
generally in all appropriations & dispositions of money to be drawn out of the General Treasury; and in all laws for supplying that Treasury, the Delegates of the several States shall have suffrage in proportion to the Sums which their respective States do actually contribute to the Treasury [emphasis added].
When the Origination Clause was specifically taken up, a spirited debate ensued, with some delegates protesting against restrictions on the Senate. According to Madison’s records, however, what “generally prevailed” was the argument of George Mason:
The consideration which weighed with the Committee was that the 1st branch [i.e., the House of Representatives] would be the immediate representatives of the people, the 2nd [the Senate] would not. Should the latter have the power of giving away the people’s money, they might soon forget the source from whence they received it [emphasis added]. We might soon have an Aristocracy.
Mason’s concerns seem prescient in our era of mammoth national government presided over by an entrenched ruling class of professional politicians. He worried that
the Senate is not like the H. of Representatives chosen frequently and obliged to return frequently among the people. They are chosen by the Sts for 6 years, will probably settle themselves at the seat of Government, will pursue schemes for their aggrandizement. . . . If the Senate can originate, they will in the recess of the Legislative Sessions, hatch their mischievous projects, for their own purposes, and have their money bills ready cut & dried, (to use a common phrase) for the meeting of the H. of Representatives. . . . The purse strings should be in the hands of the Representatives of the people.
Yes, the purse strings, not just the power to tax. Concededly, the Origination Clause speaks of bills “for raising revenue.” In selling the Constitution to the nation, though, it was portrayed as securing in the hands of the people’s representatives the power of the purse. It is an empty power if spending is not included.
The relevant paragraph in Madison’s Federalist No. 58 is worth quoting in full (all italics mine):
A constitutional and infallible resource still remains with the larger states by which they will be able at all times to accomplish their just purposes. The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of government. They, in a word, hold the purse — that powerful instrument by which we behold, in the history of the British constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.
To my mind, what Madison describes unquestionably transcends taxing authority. I believe a “complete and effectual weapon . . . for obtaining a redress of every grievance” must give “the immediate representatives of the people” the power to block funding for a government takeover of health care that was enacted by fraud and strong-arming; that was adamantly represented not to be the tax that the Supreme Court later found it to be; and that is substantially opposed by the people, and has been since its enactment.
Matt begs to differ, relying on the text of the Origination Clause, the reductive construction of “revenue” as mere “taxation,” and Joseph Story’s Commentaries. This is reasonable, and — as Matt has emphasized — it certainly reflects conventional Washington wisdom. But I do not think it gets to the power of the purse that the Framers — and Madison, quite explicitly — were driving at.
In fact, Story’s conclusion that the origination power “has been confined to bills to levy taxes in the strict sense of the word,” and not to ordinary legislation “which may incidentally create revenue,” is an overly narrow interpretation of the clause’s meaning, arrived at by taking out of context a portion of the delegates’ debate that related to two tangential concerns about potential abuse of the origination power. Specifically, Madison worried that the Origination Clause could be read too broadly, thus hampering the Senate’s ability to originate any legislation — since most federal legislation would surely have some conceivable economic consequence. Relatedly, other delegates worried that the House could abuse its origination power by tacking non-revenue legislation onto money bills in order to frustrate the Senate’s ability to make amendments.#page#
The Framers wanted to endow the House with the power of the purse, but did not want to open the door to such shenanigans. Thus the fleeting focus on “incidental” levies: The debates fleshed out the principle that the Origination Clause was intended to apply to bills the patent purpose of which involved public money. That hardly meant, as Story inferred, that the Clause would only ever apply to “bills to levy taxes in the strict sense.” It meant that, in the peculiar situation of ordinary legislation that only incidentally raised money, the Senate would not be impeded by the clause from either initiating or amending such a bill.
I would also note that constricting the House’s Origination Clause power to taxation would render it a nullity — which, admittedly, is how modern Washington treats it. If the Senate is freely permitted to originate appropriations that increase our already olympian debt through more borrowing, it is effectively originating taxation every bit as much as if it forthrightly branded as “taxation” the bills thus initiated.#ad#
Two final points. First, I have no illusions that, at this late hour, the Senate would passively accept the premise that the House holds the full power of the purse, or that somewhere down the road the courts would enforce this principle. But each component of our government has the power and, I’d submit, the duty to construe its own constitutional authority in good faith. I am saying that if Republicans truly want to make good on a pledge to reinvigorate originalism, the House should be guided by Madison in its dealings with the Senate. That would make for some contentious times (similar to what we are witnessing now), but so what? Our system is based on the expectation that officials will vigorously exercise their quite intentionally separate and competing powers. The resolution of the inevitable collisions should be more a political process guided by constitutional principles than a legal process determined by courts. The former is how compromise and consensus properly emerge.
Second, there is some very interesting Origination Clause litigation ongoing against Obamacare, and it involves a construction of the clause that both Matt and I would probably find legitimate. Representative Trent Franks (R., Ariz.) and other House conservatives claim that the so-called Affordable Care Act violates the clause because it was a tax-hiking bill (as the Supreme Court has held) that originated in the Senate.
There will be much more to say about this legal challenge. I believe it will be less abstract and less contentious than our debate over the theoretical extent to which the Origination Clause reposes in the House the power of the purse.