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02/24/2021

Chris Land: The Origination Clause's Missing Piece
Michael Ramsey

Chris Land (Northwestern University Pritzker School of Law) has posted The Origination Clause's Missing Piece (Tennessee Law Review, Vol. 87, No. 4, 2021) (32 pages) on SSRN.  Here is the abstract: 

The Origination Clause is nearly constitutional surplusage today. The scope of the Clause has been limited by the U.S. Supreme Court to a very narrow class of revenue legislation that emerges from the U.S. House of Representatives.

This Article, for the first time, analyzes historical evidence that the U.S. Supreme Court has defined the constitutional scope of “Bills for raising Revenue”—and the concomitant reach of the Clause—in a manner that fails to account for Revolutionary-era British revenue legislation. Four of the five bills passed by the British Parliament which contributed to the outbreak of the Revolutionary War, i.e., the Sugar Act 1764, Stamp Act 1765, American Colonies Act/Declaratory Act 1766, Revenue Act 1767 and the Tea Act 1773, were considered by the Revolutionary-era generation to be “Bills for raising Revenue.” These measures were largely the genesis of the slogan “taxation without representation.

Under U.S. Supreme Court precedent today, none of these Revolutionary-era measures would likely be subject to the Origination Clause because each bill raised revenue for a specific governmental purpose, e.g., the defense of the American colonies, the enforcement of anti-smuggling laws and other specific, directed purposes. Though Origination Clause precedent has supposedly been rooted by the Court in “the history of the origin of the power,” Origination Clause cases make it clear that only those bills that raise “revenue to support government generally,” i.e., undesignated revenue-raisers, are subject to the Origination Clause’s requirements.

This Article contends that this approach is largely unsupported by the historical record and that our modern application of the Origination Clause is missing an important piece—the Revolutionary-era generation’s view of the legislation which truly constitutes “Bills for raising Revenue.”

Via Larry Solum at Legal Theory Blog, who says "Highly recommended."

If I'm reading the paper correctly, the problem in the Court's cases started at the turn of the nineteenth century, in Twin City Bank v. Nebeker, 167 U.S. 196 (1896) and Millard v. Roberts, 202 U.S. 429, 436 (1906).  That should not be surprising.  Despite claims that nonoriginalism is a more recent development, the late-nineteenth century Court was not reliably textualist or originalist (though it had its originalist moments).