And Now For Something Completely Different

This is not a post about Monty Python (sorry), but a couple of thoughts on the word “amendment.” Over at The Originalism Blog, Professor Michael Ramsey discusses a debate regarding the meaning of the Origination Clause of the Constitution, which provides “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.” A new constitutional challenge to the Affordable Care Act (aka Obamacare) contends that the statute was enacted in violation of this provision because although the bill had a House Bill number, it actually originated in the Senate. As explained in this Volokh Conspiracy post by Professor Randy Barnett, Senate Majority Leader Harry Reid simply took a House bill, struck out all of the text, and replaced it with a Senate-written bill. A new lawsuit now argues that this “strike and replace” procedure does not satisfy the requirements of the Origination Clause.

Professor Jack Balkin points out that using “strike and replace” or a “shell bill” as a means of formally satisfying the requirements of the Origination Clause has been done on a number of occasions in modern history, including the 1986 Tax Reform Act. He acknowledges that the “original expected application” of the Origination Clause probably did not include using the amendment process to substitute a completely different piece of legislation (after all, the Clause would seem to serve little purpose if this is allowed), but argues that it is literally consistent with the requirements of the Clause.

To which Professor Ramsey responds:

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).

An 18th century dictionary defines “amend” as “to correct; to change anything that is wrong;” it defines “amendment” as “in law, a correction of an error committed in a process.” Like the modern definition quoted by Ramsey (and perhaps even more so), this seems to connote something more specific than a wholesale revision or substitution.

There is some corroboration that the Framers used the word “amendment” in Article V in this sense. In Federalist No. 43, Madison explains that Article V “equally enables the general and the State governments to originate the amendment of errors.” This suggests that “amendments” are discrete changes or corrections (or, as Madison also puts it, “useful alterations”), rather than wholesale revisions or substitutions.

On the other hand, the dictionary might not be the right place to look for the meaning of “amendment” in the Origination Clause. Unlike the proposing and ratification of constitutional amendments, the proposing of ordinary legislative amendments was not a new or unusual phenomenon at the time the Constitution was written. Indeed, the Origination Clause seems to make reference to an existing legislative tradition by stating “the Senate may propose or concur with Amendments as on other Bills.” Thus, perhaps one should ask whether the term “amendment” had a more specific and technical meaning in 18th century Parliament and the American legislatures.

Generally speaking, amendments in the House are required to be germane to the legislation being amended, but this is not necessarily inherent in the concept of an “amendment.” According to an 1880 ruling in the House:

In the absence of an express rule, the amendment would not be liable to a point of order upon the ground that it was inconsistent with or not germane to the subject under consideration, for, according to the common parliamentary law of this country and of England, a legislative assembly might by an amendment, in the ordinary form or in the form of a substitute, change the entire character of any bill or other proposition pending. It might entirely displace the original subject under consideration, and in its stead adopt one wholly foreign to it, both in form and in substance.

V Hinds Precedents 5825.

McKay and Johnson seem to be less than certain about the correctness of this ruling (they note Erskine May’s description of the fundamental parliamentary rule that “every amendment must be relevant to the question to which it is proposed”), but they acknowledge that Thomas Jefferson had a similar view. See Parliament & Congress 176-77.

Based on this, it is not apparent that the Origination Clause’s use of the term “amendment” bars the strike and replace procedure, but further research on the “common parliamentary law of this country and of England” as it stood in the late 18th century would be warranted.

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