Mike Lee knows a thing or two about the Constitution. Utah’s junior senator is the son of Rex E. Lee, the founding dean of the law school at Brigham Young University and Ronald Reagan’s first solicitor general. Lee recounts attending his father’s oral arguments at the U.S. Supreme Court, which he characterizes as a somewhat more decorous version of dinner table conversations in the Lee household. The younger Lee went on to graduate from the law school his father helped found, to clerk for Justice Samuel Alito when the latter was on the U.S. Court of Appeals for the Third Circuit (later joining Alito again as a clerk at the U.S. Supreme Court), and to specialize in federal appellate court litigation at an elite law firm.
In this third post on the Origination Clause, I turn to language in the Clause that is not entirely clear: “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” What does this italicized language mean?
Perhaps the most obvious interpretation is that it is referring to two situations: (1) the Senate may propose Amendments or (2) the Senate may concur with Amendments. In the second situation, the Constitution allows the Senate to take the House bill, amend it, pass it, and then send it to the House. If the House approves it, then the bill is passed by the Congress as a whole. In the first situation, the Senate merely proposes amendments to the bill but does not pass them. If the House likes some of the proposals, it passes them as part of the bill and then sends that bill to the Senate for passage.
In this post, I continue my earlier discussion of the Origination Clause through a review of Jack Balkin’s views.
Jack Balkin analyzes the Origination Clause issue in accord with his general approach to constitutional interpretation. Jack writes:
My reading of the history is that today’s practice of using shell bills is not consistent with the original expected application of the Origination Clause. The House was quite jealous of its prerogatives for many years. Nevertheless, shell bills are consistent with the words of the Constitution: “the Senate may propose or concur with Amendments [to “Bills for raising Revenue”] as on other Bills.” Shell bills are Senate amendments to House revenue measures, and in other bills the Senate may strike as much of a bill as it wants to when it amends it.
So the question is whether twentieth century practice– and judicial precedents–have altered the best construction of the text so that it differs from the original expected application. If so, it would not be the first time this has happened.
I am not certain how to interpet Jack’s claim. Based on what he says in the post and on his general interpretive approach, I interpret him to claim that the original public meaning of the Origination Clause is actually quite minimal. The early broad interpretation involved a “construction” of the Clause and the later narrow interpretation was a different construction. Both constructions are constitutional because the minimal original meaning does not conflict with either. (If I have misunderstood his position, I welcome correction.)