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Michael Ramsey


Jack Balkin on the Origination Clause
Michael Ramsey

At Balkinization, Jack Balkin: A New Legal Challenge to Obamacare: The Origination Clause (responding to the post by Randy Barnett noted here).  Among other things, Professor Balkin adds the important point that the "strike and replace" procedure (that is, where the Senate "amends" a House bill by deleting all of the House bill and adding something entirely different) is apparently not an innovation just of the health care law, but has been used in important bills in the recent past without material objection.

Professor Balkin further argues that strike-and-replace is "formally consistent with Article I, section 7, because the Senate has added an amendment to a tax bill that began in the House."  I'm not sure that is right.  It depends on the meaning of the word "amendment."  Is the deletion of one whole bill and the substitution of an entirely new bill properly defined (in ordinary use) as an "amendment"?  The dictionary I have closest to hand says that an "amendment" is "a correction or an alteration ... [a] formal revision of, addition to, or change..."  In modern speech, I would think that the word "amendment" might contrast with "substitution" or "replacement." (Of course, for original meaning what really matters is the 1787-88 definition, if it is different).

Professor Balkin also says that "today's practice of using shell bills [ed.: i.e., strike-and-replace] is not consistent with the original expected application of the Origination Clause. The House was quite jealous of its prerogatives for many years."  If that's right, doesn't it suggest something about the original meaning of "amendment"?  Perhaps the reason the Framers expected the origination clause to prohibit strike-and-replace (assuming they did) is because they understood the word "amendment" to mean partial, but not total, revision.  The alternative scenario suggested by Professor Balkin – that the original meaning of "amendment" included total replacement but the Framers inexplicably thought total replacement was barred by the origination clause – makes little sense.  Expected applications reflect the drafters’ understanding of the public meaning of their own words; of course there can be errors in drafting, but other things being equal, what people of the time thought words meant is pretty good evidence of what the words meant at the time.

This is why I am less impressed with the original meaning/original expected application distinction than many scholars are.  In my view, the original expected application, although distinct from original public meaning, is highly probative of original public meaning.  At minimum, I would think that it shifts the burden to the side disputing the original expected application.  For example, in this case, are there examples from the relevant period of "amendment" being used to mean "total substitution"?  If not, the argument that the original meaning of "amendment" includes total replacement, even thought the drafters thought it didn't, seems a bit dubious.  (Incidentally, I bet no one described the Constitution as an "amendment" of the Articles of Confederation).

I'll add also that I'm entirely open to the original expected application being different from the original meaning, if the facts support it.  For example, I think the original expected application of the treatymaking clause may well have been that the Senate would give the President "Advice" on treatymaking before the treaty was signed, and then give its "Consent" afterward.  But, even accepting this original expected application, I don't see how the text of Article II, Section 2 requires this procedure -- it seems to me, for various textual and historical reasons, that "Advice" can be  given after-the-fact on a finalized proposal as well as in advance during the formation of a proposal.  (This argument is developed in Ch. 7 of The Constitution's Text in Foreign Affairs).  But I'm not convinced that the textual and historical evidence on the origination clause is enough to overcome the original expected application (and in any event, it can't be overcome just by asserting the contrary).