The Original Public Meaning of Amendment in the Origination Clause Versus the Patient Protection and Affordable Care Act
Published Online: Dec 29, 2017
Page range: 301 - 361
DOI: https://doi.org/10.1515/bjals-2017-0015
© 2017 Daniel J. Smyth
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
As far as I can learn, the express purpose of the [Philadelphia] [C]onvention was, to revise and
— Denatus,
Robert Natelson’s recent article, Robert G. Natelson,
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments [on House bills for raising revenue] as on other Bills. U.S. C
Natelson examined the Origination Clause relative to the Patient Protection and Affordable Care Act (PPACA or the Affordable Care Act) because several lawsuits alleged PPACA violates this clause.
In 2012, the Pacific Legal Foundation (PLF) launched one such lawsuit with Nat’l Fed. of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012). Congressional Budget Office, Payments of Penalties for Being Uninsured Under the Affordable Care Act: 2014 Update, June 2014,
As PLF noted, the Senate originated the individual mandate and the rest of PPACA by amending House Resolution (H.R.) 3590, titled the Service Members Home Ownership Tax Act of 2009. H.R. 3590, 111th Cong. (2009). Daniel Smyth, Amended Complaint,
Before examining Natelson’s argument regarding the Origination Clause and PPACA, it is important to note his methodology for discovering the original understanding of a constitutional word or provision. Natelson’s book titled R N In an online essay, Natelson noted that, contrary to popular opinion, states—not the Confederation Congress—authorized the Philadelphia Convention. Natelson argued the states thereby held the Convention “outside the framework of the Articles [of Confederation.]” According to Natelson, most of the 13 states in the confederation gave their respective representatives to the Convention enough power to permit the Convention to completely replace the Articles. For instance, Natelson said the following: “[Most of the states’] calls provided for the [Philadelphia] [C]onvention to propose changes in the ‘federal constitution’ without limiting the gathering to amendments to the Articles. The unanimous authority of 18th century dictionaries tells us that ‘constitution’ in this context meant the entire political system, not merely the Articles as such.”
In his article on the Origination Clause, Natelson argued the original understanding of a bill for raising revenue is any bill that derives its constitutional authorization exclusively from Congress’ power to tax and that increases or reduces taxes or otherwise changes tax laws. Natelson claimed the individual mandate should be considered to have been a bill for raising revenue only because the Supreme Court in effect ruled, in
Natelson also examined the original understanding of amendment, as (emphasis added) “the Senate may propose …
In analyzing records of the Philadelphia Convention, state legislatures, state conventions, and other settings,
Thus, Natelson said the Senate could, as an amendment, completely replace the House’s Service Members bill with the individual mandate and other taxes in PPACA. Natelson declared that PPACA’s other parts, including its health regulations and appropriations, were non-germane to the original bill and therefore in violation of the original understanding of amendment.
Natelson thereby concluded the individual mandate and other taxes in PPACA amounted to a valid amendment to—and thus a continuation of—the Service Members bill. Natelson claimed these parts of PPACA therefore originated in the House as that bill for raising revenue and comply with the original understanding of the Origination Clause.
As do many constitutional scholars, Randy E. Barnett, As one example, Natelson noted there appears to be a conflict between the original understanding and original public meaning of the ex post facto clauses.
My article does not examine the original public meaning of a bill for raising revenue and whether the individual mandate, other taxes in PPACA, or Service Members bill complied with this meaning of a bill for raising revenue. However, to examine whether PPACA was a valid amendment to the Service Members bill according to the original public meaning of amendment, my article assumes the individual mandate or another tax(es) in PPACA and the Service Members bill complied with the original public meaning of a bill for raising revenue. Assuming otherwise would make my examination of the amendment question unnecessary. If the individual mandate or another tax(es) in PPACA did not comply with the original public meaning of a bill for raising revenue, then according to my originalist method the Origination Clause would not apply to PPACA. If the Service Members bill did not comply with that meaning of a bill for raising revenue and the individual mandate or another tax(es) in PPACA did comply therewith, then according to my originalist method it would be impossible to argue that PPACA was the continuation of a House bill for raising revenue. It would be evident that PPACA represented a new bill for raising revenue that originated in the Senate.
My article argues the original public meaning of amendment is clear and disallows complete substitutes. Therefore, PPACA or any other complete substitute by the Senate to a House bill for raising revenue that is a new bill for raising revenue violates the original public meaning of the scope of an amendment. Furthermore, my article argues the preponderance of evidence suggests the original understanding of the scope of an amendment actually disallows complete substitutes.
Part II explores the original public meaning of amendment. Part III rebuts Natelson’s claim that the original understanding of the scope of an amendment permits complete substitutes. Specifically, Part III presents evidence from the British parliament in the eighteenth century that shows the parliament most likely disallowed amendments on bills to be complete substitutes in the decades leading up to the founding. Part III then examines the origination of the Constitution at the Philadelphia Convention and the Constitution’s ratification process to show the dominant view among the founders was that an amendment to the Articles of Confederation could not be a complete substitute. During the ratification process, the Confederation Congress was the first body to consider the Constitution, followed by the state legislatures and then state conventions. The Articles was a legal document ratified by 13 states, and therefore discussions by the founders about the permissible scope of an amendment to the Articles reflected what they thought was the permissible scope of an amendment to legislation, such as bills, resolutions, and existing laws. I found no evidence that suggests the founders or others distinguished between the permissible scope of an amendment to the Articles of Confederation and the permissible scope of an amendment to legislation. My finding is thus consistent with Natelson’s finding that “[i]n America ... how the word [amend] was used [by the founders and legislators during the founding era] did not hinge on the nature of the item being amended.” As Natelson noted, it did not matter whether, for example, “th[e] item [being amended] was a bill from the same house, a bill from the other house, a resolution, a report, or a prior law.” See
It should be noted that my research found several discussions by “reasonable speakers of English” and founders about how alterations, revisions, or repairs—not just amendments—to the Articles of Confederation could not be complete substitutes. The reason is that technically the Articles permitted alterations-not amendments—to itself. A
For several reasons, my article includes these discussions about how alterations, revisions, or repairs to the Articles could not be complete substitutes as evidence of the original public meaning of amendment and original understanding of the scope of an amendment. For one, regarding the word alteration in particular, founding-era dictionaries consistently defined “alter” (to change, vary, or make something different) as a concept that was similar to but more expansive than “amend” (to correct or grow better), J T W T J F The following two dictionaries explicitly stated “alter” did not mean “to completely replace” but was nevertheless an expansive concept (emphasis added): S W Only the following dictionary suggested “alter” could be “to completely replace” (emphasis added): J This dictionary provided no definition of “alter": N
To discover the original public meaning of amendment, I first examined numerous law and regular dictionaries from the founding era for their definitions of amendment and amend. Then, I analyzed the use of amend and words with the root of amend, such as amendment and amends, in articles, pamphlets, letters, and other writings in the most prominent compilations of records from the Constitution’s ratification period, such as T T
I examined five legal dictionaries R Aside from the definitions of “amendment” mentioned in the text, the relevant definitions are as follows: P S W B K B B J A D
Regular dictionaries defined “amend” as “to correct,” “to grow better,” or a similar phrase. The relevant definitions of “amend” are as follows: J A D P S W B K B B J B K
Of course, the implication of all these definitions of “amendment” and “amend” is that an amendment must be germane to what is being amended, as correcting something requires relevant changes. Also, an amendment must preserve at least a part of the thing being amended so that there is something to transform from bad to better.
I searched for every occurrence of amend and words with the root of amend in the following, prominent compilations of records from the Constitution’s ratification period: F T
The compilations of records abound with over 60 examples of writings, most of which concern the Articles of Confederation, suggesting amendments could not be complete substitutes. Since my examples are so numerous, the Appendix lists those not discussed in my article. My examples are consistent with the evidence presented in the recent article on the Origination Clause by Professor Priscilla Zotti and scholar Nicholas Schmitz. Their article documented numerous examples of writings from the ratification period, and none to the contrary, suggesting the original public meaning of the Origination Clause did not contemplate the possibility that the Senate could originate revenue bills in any way, including as complete substitutes. Priscilla H.M. Zotti & Nicholas M. schmitz,
Among the over 60 examples that I found are a few from Federalists regarding the Origination Clause that suggest the Senate’s amendment power was not so expansive as to permit complete substitutes. The first example is the article by Brutus, who is not to be confused with the popular Anti-Federalist of the same pseudonym, in the Brutus, Virginia Journal, 6 December 1787,
A second example is Marcus’ article in the Marcus I, Norfolk and Portsmouth Journal, 20 February 1788,
A third example is a Native of Virginia’s pamphlet titled A Native of Virginia: Observations upon the Proposed Plan of Federal Government, 2 April 1788,
Of the numerous examples of writings suggesting amendments to the Articles of Confederation could not be complete substitutes, several examples allegorized the Articles to make the point. One example involves the popular pamphlet of letters written by the Federal Farmer, who was actually an Anti-Federalist, titled
[Leading up to the Philadelphia Convention,] not a word was said about destroying the old constitution, and making a new one– Federal Farmer, Letters to the Republican--Letter I, 8 November 1787,
According to the Federal Farmer, the Articles was the old ship that, after passing the Rubicon, was not fixed but destroyed and replaced with a new ship.
Ship News, in an article in the
[It] is a very leaky weak vessel, built at a time when season’d timber could not be procured; the necessity of her being built immediately was the cause of the Builders throwing her so slightly together, and not more firmly and consistently uniting the various parts. That many of her planks are rotten; that her timbers in many parts are defective; that should she engage an enemy of one third of her guns, on the reception of the first well-aim’d broadside, she would be effectually ruined: in short, that she is beyond repair.
Ship News said Constitution, by contrast, was “beautiful,” “far superior to any [other ship],” and “well calculated for … American service.” Ship News, Boston Gazette, 4 February 1788,
Another popular allegory was Federalist Francis Hopkinson’s “The New Roof,” published in the
[T]hat it would be altogether vain and fruitless to attempt any alterations or amendments in a roof so defective in all points; and therefore proposed to have it entirely removed, and that a new roof of a better construction should be erected over the mansion house.
The architects then proposed a plan to install a new roof, which represented the new constitution and which the family would have to consider. The New Roof, Francis Hopkinson, Pennsylvania Packet, 29 December 1787,
Many other examples, mostly from Anti-Federalists, argued the Philadelphia Convention’s amendment power disallowed complete substitutes to the Articles. One example is a letter by Robert Yates and John Lansing, representatives of New York at the Philadelphia Convention, to George Clinton, governor of that state, on December 21, 1787. Describing why they opposed the new constitution, Yates and Lansing said, among other arguments, that the Philadelphia Convention “exceed[ed] the powers delegated to us” by, instead of amending the Articles, proposing a “general Constitution in subversion of … the [Articles.]” Yates and Lansing further said the (emphasis added) “leading feature of every amendment ought to [have] be[en] Robert Yates and John Lansing, Reasons of Dissent, N
Cato, a popular Anti-Federalist, provides another example with his article in the
[The framers] transmitted to [the Confederation] Congress a new political fabric [the new constitution], essentially and fundamentally distinct and different from it [the Confederation], in which the different states do not retain … their sovereignty and independency [sic], united by a confederated league[.]
Then, Cato emphasized the “new government” consisted of a national structure and powers “not known to the articles of confederation.” Cato further claimed the framers proposed the new constitution under an “assumption of power [and therefore not under the amendment power]” and “in usurpation.” Cato II, New York Journal, 11 October 1787,
In an article in the The Republican Federalist IV, Massachusetts Centinel, 12 January 1788,
In the same article, the Republican Federalist gave the following warning given what he perceived as a precedent for permitting an amendment to be a complete substitute (emphasis added):
But supposing a Convention should be called [to amend the new constitution], what are we to expect from it, after having ratified the proceedings of the late federal [Philadelphia] Convention?
According to the Republican Federalist, the Philadelphia Convention had corrupted the definition of amendment to permit complete substitutes and amendments could now “signify any thing.”
Another example involves Anti-Federalist Silas Lee’s letter to Federalist George Thatcher on February 14, 1788. The following excerpt made a similar warning as the Republican Federalist’s article (emphasis added):
But I hope the precedent of the late federal [Philadelphia] Convention will not be followed by the next [convention to amend the new constitution] that may be appointed; viz Silas Lee to George Thatcher, Biddeford, 14 February 1788,
Lee thereby suggested the Philadelphia Convention violated its amendment power by proposing a new constitution.
An additional example is Exeter, N.H.’s article in the Exeter, N.H., Freeman’s Oracle, 21 March 1788,
An example from the South involves a Georgian’s article in the Essay by A Georgian, G
Several more examples involve three towns’ instructions to their respective representatives at the Massachusetts Convention. On November 26, 1787, the Town of Grate Barrington directed representative William Whiting to oppose the new constitution given these two reasons (emphasis added and the original text included all the spelling errors):
First as the Constitution of this Commonwealth Invests the Legslature with no such Power as sending Delligates To a Convention for the purpose of framing a New System of Fedderal Goverment— 2nd had the Delligates from this state been Constituenaly appointed yet Town of Grate Barrington’s (Massachusetts) Draft Instructions, 26 November 1787, To William Whiting Esq.,
Thereby, the Town of Grate Barrington stated the Convention’s amendment power disallowed complete substitutes, such as the new constitution.
On December 16 of the same year, the town of Harvard told representative Josia Witney to “give your negative vote” to the new constitution. The town explained that (emphasis added) “amendments may be made upon the Confederation of the United States, by vesting Congress with greater Powers, [but] Town of Harvard’s (Massachusetts) Instructions, 17 December 1787, To J
Two weeks later on December 31, the town of Townshend recommended that representative Daniel Adams support the new constitution with certain amendments, such as the addition of a declaration of rights. However, the town also noted the Philadelphia Convention was supposed to have only amended the Articles “yet … instead of that [amendment] … Sent out a [new] fraim [sic] of government[.]” Town of Townshend’s [Townsend’s] (Massachusetts) Instructions, 31 December 1787 — To Capt. Daniel Adams —,
Several examples from Anti-Federalists emphasized that, if the new constitution had preserved a part(s) of the Articles of Confederation, then the Philadelphia Convention may have avoided exceeding its amendment or alteration power. In the Denatus, Virginia Independent Chronicle, 11 June 1788, A Federal Republican, A Review of the Constitution, 28 November 1787, Federal Farmer, Letter X, January 7, 1788,
Several other examples, all from Federalists, countered that the new constitution did, in fact, preserve enough of the Articles to qualify as an alteration or amendment and to thereby not be a complete substitute. On January 16, 1788, State Soldier’s article in the State Soldier; Essay I, Virginia Independent Chronicle, Richmond, 16 January 1788,
Two days later in the T
Colonel John Banister’s article in the Colonel Banister, Petersburg Virginia Gazette, 25 October 1787,
A Citizen of Philadelphia’s “Remarks on the Address of Sixteen Members,” published on October 18, 1787, A Citizen of Philadelphia, Remarks on the Address of Sixteen Members, 18 October 1787 (excerpt), 3 C
[A]n amendment in the sense of legislative bodies, means either to strike out
Thereby, a Citizen of Philadelphia said the definition of amendment according to legislators permits the deletion or replacement of “some”—not “all”—parts of a bill. He then said, “I challenge the whole sixteen members to shew [sic] that the convention have done an iota more than this[.]” A Citizen of Philadelphia, Remarks on the Address of Sixteen Members, 18 October 1787 (excerpt),
In the A Citizen of New Haven [Roger Sherman], The Letters: I-II, New Haven Gazette, 25 December 1788,
William Cushing of Massachusetts’ undelivered speech dated February 4, 1788, made a claim similar to a Citizen of New Haven’s. First, Cushing implied the new constitution was not an alteration or amendment to the Articles by saying (emphasis added and the original text included all the shorthand) “[s]ome Gentlemen say— William Cushing: Undelivered Speech, c. 4 February 1788,
Several examples of writings in the compilations emphasized that amendments could be extensive but not complete substitutes. Two of these examples involve writings by Alexander Hamilton under the pseudonym of Publius. His first example is from his article in the T T
A third example is from a Columbian Patriot, the pseudonym of Mercy Otis Warren, who published a pamphlet titled Observations on the New Constitution, and on the Federal and State Conventions, by A Columbian Patriot, Boston, 1788, JOHNSON,
Four examples of ratification records One other record came close to suggesting an amendment to the A However, Remarker ad corrigendum directly addressed only the meaning of the Convention’s power to alter and revise the Articles, which he said permitted complete substitutes. It is unclear if he thought the same for the power to amend the Articles, which he framed as a power that was inherent to—and thus less significant than—the power to alter and revise the Articles.
Had it [the Philadelphia Convention] been even invested with full powers to amend the present compact [Articles], their proposed plan would not have exceeded their trust. Aristides (Alexander Contee Hanson): Remarks on the Proposed Plan, 31 January 1788,
Aristides thereby suggested only that the definition of amendment according to legislators permitted complete substitutes. He did not suggest “reasonable speakers of English” would have defined amendment in this way. Aristides then warned the public against attempting amendments to the new constitution before its ratification. According to Aristides, there may “never be an end” to amendments, resulting in a complete substitute to the new constitution.
The second example involves a Citizen’s article in the
The powers given to the [Philadelphia] Convention were for the purpose of proposing amendments to an old Constitution [the Articles]; one is an old one made new, the other new originally. and [sic] A Citizen, Lansingburgh Northern Centinel, 29 January 1788,
However, a Citizen may have qualified his remarks by saying “
The third example involves Brutus, the pseudonym of Robert Yates, in
[F]or Brutus XVI, New York Journal, 10 April 1788,
Yates did not explain why he equated the amendment power to the origination power, but his implication appears to be that the amendment power permits complete substitutes to bills. However, similar to how a Citizen said “I conceive [that an amendment can be a complete substitute]” in the previous example, Yates may have qualified his remarks by saying “I consider” before declaring the amendment power equivalent to the origination power. This possible qualification suggests Yates’ understanding of amendment may have been an anomaly. Therefore, one should also not consider this passage to be evidence of what “reasonable speakers of English” in general thought was the meaning of amendment. Regardless, Yates’ article broke from his understanding of amendment as something short of a complete substitute expressed months earlier in his letter with Lansing to Governor Clinton.
The fourth example involves Thomas a Kempis’ article addressed to “Mr. Russell” in the
Mr. RUSSELL, I have seized a moment to inform you, that in my last, haste precluded me from asking the Hon. Mr. ADAMS, or the Hon. Mr. AUSTIN, jun. or some other Candid gentleman, acquainted with Legislative proceedings, Thomas a Kempis, Massachusetts Centinel, 29 December 1787,
However, the inquisitive tone of Kempis’ article suggests he thought his observation that amendments might be able to be complete substitutes was unique.
According to the definitions of “amendment” and “amend” in the founding-era dictionaries, an amendment is a change or alteration to something that transforms the thing from bad to better. The dictionary definitions suggest an amendment must be germane to what is being amended, as to correct something requires relevant changes. The definitions further suggest an amendment must preserve at least a part of the thing being amended so that there is something to change from bad to better.
Over 60 ratification records representing the views of Federalists and Anti-Federalists suggested amendments must be short of complete substitutes. These records ranged from a Native of Virginia’s pamphlet suggesting the Senate could not amend a money bill with a “new model” to the Town of Grate Barrington’s (Massachusetts) proclamation that the Philadelphia Convention’s amendment power disallowed the proposal of a “new form of Fedderial [sic] Government.”
Some records implied an amendment had to be germane to the document being amended. For instance, articles about the Origination Clause, such as Brutus’ article, suggested any bill amendments would only correct a given bill and thereby be relevant.
Other records suggested an amendment had to preserve at least a minor but significant part of the substance—not the intention or purpose—of the document being amended. My research shows that a “significant part” means a distinct portion that served a function within the document. One such record was Denatus’ argument, which said that, if the new constitution had preserved only one article from the Articles of Confederation, then “the objection of innovation would be unreasonable.” Article 11 of the Articles stated only that Canada could join the Confederation at any time, A
Several other records indicated an amendment could preserve simply the essence—not the exact language—of the given part. William Cushing’s undelivered speech made this point by arguing the new constitution appeared to have kept, among other parts of the Articles, the power to form a navy. The Articles stated the Confederation Congress may “build and equip a navy,” A U.S. C
Four ratification records suggested amendments could be complete substitutes. In one example, Aristides said an amendment can involve “striking out the whole” of a legislative document and “substituting something in its room.” In another example, a Citizen claimed the Philadelphia Convention’s amendment power permitted the replacement of “the whole” of the Articles.
However, all of these four records suggested only that the view that amendments could be complete substitutes was or may have been the view of at least some legislators or other select individuals, not necessarily “reasonable speakers of English” in general. For example, in his article, Thomas a Kempis made what he perceived to be the unique observation that procedures in the Massachusetts legislature may have permitted amendments to be complete substitutes.
The totality of evidence from the founding-era dictionaries and compilations of ratification records indicates most “reasonable speakers of English” during the founding era would not have been aware of the argument that amendments could be complete substitutes, let alone defined the word amendment as permitting of complete substitutes.
The totality of evidence shows the original public meaning of amendment is a change or alteration to something that must 1) be germane to that something, 2) preserve at least the essence of a significant part of the substance of that something (a “significant part” being a distinct portion that served a function within that something), and 3) make that something transform from bad to better. The only other part of the original Constitution that contained the words amend or amendment is Article V, which reads as follows (emphasis added): The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose The original public meaning of amendment also applies to Article V. Thus, any amendment to the Constitution must 1) be germane to the Constitution, 2) preserve at least the essence of a significant part of the substance of the Constitution, and 3) make the Constitution transform from bad to better.
As discussed in the Introduction, this part rebuts Natelson’s claim that the original understanding of the scope of an amendment permits complete substitutes. This part first examines evidence from the British parliament, followed by evidence from the Philadelphia Convention, Confederation Congress, state legislatures, and, lastly, state conventions.
My previous research on the Origination Clause examined the practice of the British parliament in the eighteenth century regarding bill amendments. Daniel Smyth, 2 T J Robert J. Taylor, M
Natelson’s article confirmed much of my previous research, which argued the British parliament most likely disallowed amendments that were complete substitutes. Natelson examined the years 1740 through 1790, and he analyzed many sources, such as the official journals of the House of Commons and House of Lords. W “Records Frequently Asked Questions,” Parliament of the United Kingdom,
The most revealing example occurred in 1736 when the Lords received the Commons’ “Bill for the more easy recovery of the Tythes, Church Rates, and other Ecclesiastical Dues, from the people called Quakers.” After the second reading of this bill by the Lords and in the context of proposing amendments to the bill, a lord whose name the
I think it impossible to make a proper Bill of that we have now before us, without altering the whole, which, according to our methods of proceeding, cannot be done in the committee; for as the Bill would then be a new Bill, it could not be pretended that such a Bill had been twice read, then committed, and after that read a third time, which is the method of passing Bills constantly observed in this House.
Other lords who debated this Quaker bill agreed with the above assessment. For example, one lord proposed an amendment that would “be but a small and an easy amendment to the Bill; it will be very far from making it a new Bill.” 9 C
A second example is from 1743 when the Lords debated the Commons’ bill “For repealing certain Duties on Spirituous Liquors, and on Licences for retailing the same; and for laying other Duties on Spirituous Liquors, and on Licences for retailing the said Liquors.” The Earl of Ilay declared his fellow lords should consider the bill as follows (emphasis added):
If it be a Bill your lordships think essentially wrong, or such a one as cannot be
Thereby, the earl said the Lords could amend the Commons’ bill to make it “useful” or “good,” but not to make it a different bill. 12 C
The third example was in 1719 when the Commons considered the Lords’ “Act for the Settling [sic] ‘the Peerage of Great Britain.’” Sir Richard Steele said this (emphasis added) 7 C
According to the 5 C 13 C
[W]hat may constitute a Bill to be the same or a new Bill, is a question that may admit of some disputes, and a question, I think, not very material; but if seven new clauses added to a Bill which at first consisted but of sixteen, and every one of those it consisted of at first very much altered, does not make it a new Bill, I am sure, it shews [sic], that the Bill, as sent down to us [from the Lords], was a very inconsiderate and imperfect Bill[.]
The Lords agreed to all the Commons’ amendments to this marriage bill. 15 C
The British parliament’s records from the eighteenth century are incomplete and have other limitations. Nevertheless, according to available sources, it is evident that, at least for the several decades before the founding, the British parliament prohibited bill amendments from being complete substitutes. The parliament permitted extensive amendments to bills, but extensive amendments could not amount to originations of new bills.
On May 25, 1787, the Philadelphia Convention began with what many framers had understood to be the purpose of amending the Articles of Confederation. 1 F 5 T
In late July, the Convention finished approving and amending the Virginia Plan, which amounted to 19 resolutions for having an effective government. D S The Confederation Congress and the Constitution, 26-28 September 1787,
The only substantive evidence Natelson found regarding the framers’ views concerning the scope of an amendment was comments by James Madison, a Federalist and perhaps the Convention’s most influential participant. On August 13, 1787, the framers had been discussing the following draft of the Origination Clause (emphasis added):
Bills for raising money for the purpose of revenue or for appropriating the same shall originate in the House of Representatives and shall not be so 2 F
And then Madison commented as follows (emphasis added):
Natelson argued Madison meant a bill amendment can be “very broad” but must address the bill’s subject matter and object.
However, Madison did not, as Natelson implied, say simply that an amendment must have a “degree of connection” with the bill’s “matter & object.” Madison said only that the answer to whether a bill amendment is acceptable requires an examination of the amendment’s “degree of connection” with the bill’s “matter & object.” Madison did not specify the “degree of connection,” which could be low or higher. Since a higher “degree of connection” could require the amendment to preserve a part(s) of the substance of the original bill, it is unclear from Madison’s comments if he would accept a complete substitute to a bill.
The Convention’s most significant discussions of the scope of an amendment concerned the Articles of Confederation and not the Origination Clause. Article 13 of the Articles, which allowed alterations to the Articles, read in part as follows (emphasis added):
[T]he Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any A
And on February 21, 1787, the Confederation Congress had given the Philadelphia Convention this mission (emphasis added):
[To meet] for the sole and express purpose of 3 F
Of course, Article 13 and the Philadelphia Convention’s mission stated the Confederation Congress and states could alter or revise the Articles. The word amend was not used. However, as indicated in the Introduction, the founders often used the words alter and amend as synonyms and several founding-era dictionaries actually defined an amendment as a type of alteration that corrects something. Thus, many framers discussed either explicitly or implicitly whether the Convention’s amendment power permitted the proposal of a new constitution.
I searched F
Numerous records from the Convention suggest an amendment to the Articles could not be a complete substitute. On May 30, 1787, a day after Randolph proposed the Virginia Plan, someone proposed two resolutions that essentially said the Confederation could never be amended properly. For instance, the first resolution stated “[t]hat a union of the states, merely federal [i.e., the Confederation], will not accomplish the objects proposed by the Articles of Confederation, namely, common defence, security of liberty, and general welfare.” A third resolution was also proposed that recommended the establishment of a national government featuring a supreme judiciary, legislature, and executive. Thus, together these three resolutions suggested the Convention should forget about amending the Confederation and replace it with a new system of government. However, Charles Pinckney of South Carolina, evidently shocked at the first resolution in particular, objected to proposing new systems of government to replace the Confederation as follows:
[I]t appeared to him [Pinckney] that their [the framers’] business was at an end; for as the powers of the house in general were to revise the present confederation, and to alter or amend it as the case might require;
Convention notes stated “[t]his remark had its weight, and in consequence of it” the framers withdrew the two resolutions suggesting the Confederation could never be amended properly. 1 F
On June 9, a committee of the whole house discussed the Virginia Plan’s rules for voting for the national executive.
[T]he amendment of the confederacy was the object of all the laws and commissions on the subject … the articles of the confederation … [should] therefore [be] the proper basis of all the proceedings of the Convention. We ought to keep within its limits, or we should be charged by our constituents with usurpation. that [sic] the people of America were sharpsighted and not to be deceived. But the Commissions under which we acted were not only the measure of our power. they [sic] denoted also the sentiments of the States on the subject of our deliberation. The idea of a national Govt. [sic] as contradistinguished from a federal one, never entered into the mind of any of them, and to the public mind we must accommodate ourselves.
In particular, Paterson’s comment that “[w]e have no power to go beyond the federal scheme [the Confederation]” suggested any amendment to the Articles could not fully replace the Confederation and had to preserve at least the Confederation’s essential qualities.
On June 16, John Lansing of New York made a comment similar to Paterson’s. The committee of the whole house was considering whether to scrap the Virginia Plan for the New Jersey Plan,
On June 18, Alexander Hamilton of New York acknowledged the Virginia Plan may violate the Convention’s amendment power because the plan drastically reduced the role of states, making “the people” the national government’s ultimate source of power.
Thereby, Hamilton said an amendment to the Articles may have to preserve at least the essential quality of the Articles wherein states are the ultimate source of the national government’s power. Of course, this argument appears more close-minded than Hamilton’s arguments as Publius, discussed earlier, that suggested a valid amendment could preserve only secondary or minor parts of the Articles. Even so, all his arguments suggested amendments should be short of complete substitutes. Hamilton’s invocation of the “country’s happiness” as part of the justification for the possible violation by the Virginia Plan of the Convention’s amendment power most likely made reference to T
On June 30, Gunning Bedford, Jr., of Delaware discussed how lower-populated states could never accept the Virginia Plan, as it would give higher-populated states greater power in a national government. 1 F A 1 F
Several Convention passages suggest an amendment could be extensive but not a complete substitute. The following example occurred on June 16 when Governor Randolph responded to criticism that his Virginia Plan destroyed state equality:
It has been contended that the 5th article of the confederation [state equality] cannot be repealed under the powers to new modify the confederation by the 13th article. This surely is false reasoning, since the whole of the confederation upon revision is subject to amendment and alteration[.]
Thus, Randolph said no part of the Articles was untouchable but stopped short of approving complete substitutes.
A second example occurred on June 19 when someone again claimed the Virginia Plan violated state equality. 1 F
The Convention could clearly deliberate on & propose any alterations that Congs. could have done under ye. federal articles. and could not Congs. propose by virtue of the last article [Article 13], a change in any article whatever: And as well that relating to the equality of suffrage, as any other.
King thereby emphasized that any given part of the Articles could be altered, but he did not declare an alteration could completely replace the Articles.
In another example from June 19, James Wilson of Pennsylvania, while discussing the controversy over state equality in the Virginia Plan, explained what he believed was the limit of the scope of the Convention’s alteration power. “[E]—very article may be totally altered,” he said, “except that wh[ich] destroys the Idea of a confedy [confederation].” Although Wilson did not identify the article(s) in the Articles of Confederation without which there would be no confederation, he said an extensive alteration must leave “to each State the right of regulating its private & internal affairs in the manner of a subordinate corporation[.]” A
Natelson’s article presented no actual evidence from the Philadelphia Convention that the framers believed amendments could be complete substitutes. Natelson incorrectly implied that James Madison’s comments regarding the Senate’s amendment power in a draft of the Origination Clause demonstrated Madison approved of complete but germane substitutes to bills.
My article found no evidence from the Convention that suggested an amendment to the Articles of Confederation could be a complete substitute. Even Federalists never connected the proposal of the new constitution to the Convention’s amendment power. Alexander Hamilton’s comments regarding the Virginia Plan suggested
On September 20, 1787, the Confederation Congress received the Philadelphia Convention’s new constitution to consider relaying to state legislatures. Between September 26 and 28, Congress discussed the new constitution’s propriety. The Confederation Congress and the Constitution, 26-28 September 1787, Natelson’s search of the official journals of the Continental Congress and Confederation Congress found no evidence that suggested the congresses permitted amendments that were complete substitutes.
The first record was the proposed resolution by Anti-Federalist Richard Henry (R.H.) Lee that stated, in part (emphasis added), “the said Constitution [i.e., the Articles of Confederation] in the thirteenth article thereof
Nevertheless, out of respect for the framers’ efforts, his resolution asked Congress to relay the new constitution to state legislatures. Richard Henry Lee’s Motion, Journals of Congress, 27 September,
The second record was notes by Delegate Melancton Smith. According to these notes, R.H. Lee’s resolution instigated an interesting discussion about the new constitution’s legal authority between Federalist Henry Lee, James Madison, Federalist William Samuel (W.S.) Johnson, and others. Henry Lee responded to R.H. Lee’s resolution by saying “we [Congress] have a right to decide [the new constitution’s fate] from the great principle of necessity or the [principle of] salus populi. This necessity justifies the measure.” The founders knew the principle of necessity in Latin as B Melancton Smith’s Notes, 27 September [I],
James Madison likewise opposed the part of R.H. Lee’s resolution that claimed Congress was exceeding its power. Madison argued Congress could invoke James Madison to George Washington, Sepr. [sic] 30. 1787,
W.S. Johnson opposed R.H. Lee’s resolution because it could make “[t]he people … see [that] we, that Congress, act without power[.]” However, W.S. Johnson also suggested Congress’ legal authority could be Melancton Smith’s Notes, 27 September [I],
After this exchange about the new constitution’s legal authority, Congress postponed and thereby effectively defeated R.H. Lee’s resolution. Melancton Smith’s Notes, 27 September [II],
This exchange suggests the delegates who debated R.H. Lee’s resolution, whether Federalist or Anti-Federalist, thought the new constitution was a complete substitute to the Articles and thus not an amendment. Of course, R.H. Lee made this very argument in his resolution. But also, Henry Lee, James Madison, and W.S. Johnson suggested the legal authority of the Philadelphia Convention and Confederation Congress to propose a new constitution was
On September 28, 1787, the Confederation Congress relayed the new constitution to state legislatures, which would decide upon having state conventions that would consider ratification. 33 J Gregory E. Maggs,
To determine if any state legislatures had permitted amendments that were complete substitutes in the decades leading up to the founding, Natelson examined the legislatures’ available records, such as official journals, from this time period. Natelson said he found examples of complete substitutes in the legislatures of Virginia, North Carolina, New Jersey, Pennsylvania, and Massachusetts.
Natelson’s examples of complete substitutes from the legislatures of New Jersey, North Carolina, Pennsylvania, and Massachusetts were examples of only extensive amendments to resolutions or bills. Natelson’s example from New Jersey was in 1780 and involved the following resolution (emphasis added):
That it is the Opinion of this Committee, that the Act for the Limitation of Prices, and to prevent the with-holding the Necessaries of Life from Sale, already agreed to be gone into at this Sitting,
Someone proposed an amendment that replaced the resolution except for the line, “will be sufficient to enable the Purchasers for the Army to procure all the Flour which this State will be able to furnish.”
Natelson’s example from North Carolina occurred in 1777 when someone proposed an amendment to the following resolution (emphasis added):
This House have resolved that the
The amendment read as follows (emphasis added):
Resolved that the two
The amendment avoided being a complete substitute by keeping the original resolution’s stipulation that “Treasures of this State … be allowed” a certain payment “for the ensuing year … in lieu and satisfaction of all services as Treasurers.”
Natelson’s example from Pennsylvania involved a resolution in 1785 that called for “the appointment of a committee ‘to bring in a bill directing the commissioners of the city and several counties in this state’ to make out an assessment roll.” According to Natelson, someone completely replaced this resolution by proposing “[that] the assessment roll … [instead] be prepared ‘by each county within this state’” along with some “technical changes.”
Regarding the Massachusetts legislature, Natelson noted there are few available records. He analyzed only one volume of journals, which was from 1784. This volume noted the senate so “[h]eavily amended” many of the house’s money bills that the house had to write the original bills as “new draft[s].” Natelson suggested these new drafts must have amounted to complete substitutes. However, Natelson thereby assumed the new drafts excluded significant provisions from the original bills. Just because a bill became a “new draft” after extensive amendments does not mean “all the language in … [that] bill … after the enacting clause … was removed and replaced with new language.”
There is significant evidence regarding the original understanding of the scope of an amendment from debates in state legislatures about the new constitution. I searched
As mentioned earlier, on September 28, 1787, and without having received word of the approval by the Confederation Congress of the new constitution, the House of Representatives of Pennsylvania began debating the propriety of calling for a state convention that would consider ratifying the new constitution. Anti-Federalists Robert Whitehill and William Findley asked the House to await the official paperwork from Congress before proceeding. These assemblymen claimed the new constitution was an alteration to the Articles of Confederation because the framers were “limited to act federally … [and] acted federally” and the new constitution was on “federal ground.” By saying the new constitution was on “federal ground,” Whitehill and Findley most likely meant the constitution formed a government system in which states maintain independence from a national government. According to Whitehill and Findley, as the new constitution altered the Articles, Pennsylvania had to follow the rules for altering the Articles in Article 13, including the rule that the Confederation Congress must approve any alterations before state legislatures do so. Assembly Debates, A.M.,
Several Federalists opposed Whitehill’s and Findley’s argument, claiming Pennsylvania could approve the new constitution before the Confederation Congress. These assemblymen said that, because the new constitution was not an alteration or amendment to the Articles, no states should follow Article 13. For instance, Assemblyman William Robinson said the new constitution was “new ground,” “a different organization [than the Articles],” and “no alteration of any particular article of the Confederation, which is the only thing provided for.” Robinson added the Convention “did not think of amending and altering the present Confederation, for they saw the impropriety of vesting one body of men [the Confederation Congress] with the necessary powers.” Assemblyman Thomas Fitzsimmons asked Findley if he “ever looked at the new Constitution? If he has, he will see it is not an alteration of an article in the old, but that it departs in every principle from the other.” Fitzsimmons further said the framers “found the Confederation … so decayed that it was impossible to graft a useful article upon it.” Assemblyman Hugh Brackenridge added the new constitution was “not on federal ground but on the wild and extended field of nature, unrestrained by any former compact[.]”
Despite these differences between Whitehill’s and Findley’s argument and the other assemblymen’s arguments about whether the new constitution altered or amended the Articles, all the assemblymen agreed an alteration or amendment could not be a complete substitute. For Whitehill and Findley, if the new constitution had not, in their opinion, preserved aspects of the Confederation that maintained state independence from a national government, then the new constitution would not have qualified as an alteration to the Articles. For the other assemblymen, such as Robinson, if the new constitution contained at least one alteration of “any particular article of the Confederation,” then the new constitution could have qualified as an alteration or amendment to the Articles.
Interestingly, a few days after making their above arguments, Whitehill and Findley signed “The Address of the [Sixteen] Seceding Assemblymen,” mentioned earlier, in which 16 legislators from Pennsylvania described their opposition to the new constitution. 3 C The Address of the Seceding Assemblymen,
It appears Whitehill’s and Findley’s original argument that the new constitution altered or amended the Articles was only a delay tactic. These assemblymen were probably trying to delay a vote regarding the new constitution so they would have time to convince other assemblymen to oppose the new constitution. Historians have noted that, after the Philadelphia Convention proposed the new constitution, Federalists in Pennsylvania rushed to ratify the constitution while Anti-Federalists scrambled to prevent a blitzkrieg.
On January 31, 1788, the New York State Assembly debated a resolution that stated a state convention should consider ratifying the new constitution. Representative Cornelius Schoonmaker wanted to amend the resolution by adding, among other statements, that “[the] Convention … instead of revising and reporting alterations and provisions in the Articles of Confederation, have reported a new Constitution for the United States[.]” Assembly Proceedings, Thursday, 31 January 1788 (excerpt), Newspaper Report of Assembly Debates, Thursday, 31 January 1788,
A similar episode occurred when the Senate considered the Assembly’s above resolution to hold a state convention. Senator Robert Yates, being consistent with the understanding of amendment he expressed months earlier as a delegate to the Philadelphia Convention in his letter with Lansing to Governor Clinton, motioned for a committee to amend the resolution by adding an introduction similar to Schoonmaker’s failed amendment. Senator James Duane objected that the Senate sends only bills and never resolutions to committee for amendment. Yates retorted that state residents should nevertheless know the framers “went beyond their powers” and “have not amended, but made a new system.” But Duane, perhaps following Representative Benson’s lead, claimed any amendment to the resolution stating that the Philadelphia Convention exceeded its powers would be biased and unnecessary. Duane threatened that “[h]e was ready … to prove … the Convention had not exceeded their powers.” But Duane continued that “this is not a question to be decided here[.]” Thus, just as with Benson, Duane did not clarify if he thought an amendment could be a complete substitute, Newspaper Report of Senate Debates Friday, 1 February 1788,
On November 29, 1787, which was two days after the Maryland legislature had called for a state convention to consider ratifying the new constitution, William L. Reynolds II,
Among other declarations, Martin condemned the actions of his fellow framers, saying (emphasis added) “we, contrary to the purpose for which we were intrusted [sic], consider[ed] ourselves as master-builders,
[A] short time might show the new system as defective as the old [Confederation], perhaps more so. Should a convention be found necessary again, if the members thereof, acting upon the same principles, instead of amending and correcting its defects, should demolish that entirely, and bring forward a third system, that also might soon be found no better than either of the former; and thus we might always remain young in government, and always suffering the inconveniences of an incorrect, imperfect system. 3 F
Besides Martin’s speech, there are evidently no other published debates from the House that day about whether a state convention should ratify the constitution.
Natelson’s evidence from state legislatures during the founding era that amendments could be complete substitutes amounted to two examples of complete substitutes to resolutions, both of which were from the Virginia legislature. All of Natelson’s examples of complete substitutes from the legislatures of New Jersey, North Carolina, Pennsylvania, and Massachusetts were examples of only extensive amendments to resolutions or bills.
From debates in state legislatures about the new constitution, I found significant evidence that legislators—Federalists and Anti-Federalists alike—thought an amendment to the Articles of Confederation could not be a complete substitute. For instance, in Pennsylvania, William Robinson argued the new constitution was “new ground” and therefore “no alteration of any particular article of the Confederation, which is the only thing provided for.” Also, in New York, many legislators wanted to amend a resolution to declare the Philadelphia Convention violated its alteration power by proposing the new constitution. Other legislators who opposed this amendment declared, without elaboration, that the Convention did not exceed its power. It is possible these legislators thought, as some argued in the Confederation Congress, that
Leading up to the state conventions, the preponderance of evidence shows members of the British parliament, Philadelphia Convention, Confederation Congress, and state legislatures consistently suggested amendments could not be complete substitutes. For example, in 1736, a member of the British parliament said, regarding amendments to a bill, “altering the whole [of the bill] … cannot be done … for … the Bill would then be a new Bill.” Also, Anti-Federalists, such as John Lansing of the Philadelphia Convention, R.H. Lee of the Confederation Congress, and Representative Cornelius Schoonmaker of the New York Assembly, suggested an amendment to the Articles of Confederation could not be a complete substitute. Even some Federalists, such as James Madison of the Confederation Congress, suggested the amendment power disallowed the proposal of the new constitution. Madison said
On November 20, 1787, Pennsylvania became the first state to convene to consider ratifying the new constitution. George J. Graham, Jr., Gaspare J. Saladino, Michael Allen Gillespie and Michael Lienesch,
Natelson’s primary evidence from the 13 state conventions that the original understanding of the scope of an amendment permits complete substitutes was Anti-Federalist William Grayson’s comments in the Virginia Convention about the Origination Clause. Grayson said that, as an amendment to a House bill for raising revenue, “[t]he Senate could strike out every word of the bill, except the word whereas, or any other introductory word, and might substitute new words [and a new bill for raising revenue] of their own.”
Natelson also cited an example of a complete substitute in the North Carolina Convention. As Natelson documented, in 1788, some delegates to the North Carolina Convention proposed an amendment that completely replaced a resolution to adopt the new constitution with another advocating for amendments to the new constitution. The Convention permitted the proposal of the amendment, but the amendment failed to pass.
My article found significant evidence from state conventions that shows the dominant view among the ratifiers was that an amendment to the Articles of Confederation could not be a complete substitute. My evidence is consistent with the evidence of the original understanding of the Origination Clause presented in Zotti’s and Schmitz’s article. Their article documented many comments by ratifiers suggesting the ratifiers did not contemplate the possibility that the Senate could originate its own revenue bills as complete substitutes to the House’s revenue bills. As one of Zotti’s and Schmitz’s examples, James Wilson of the Pennsylvania Convention said “[t]he two branches [the House and Senate] will serve as checks upon the other; they have the same legislative authorities, except in one instance. Money bills must originate in the House[.]”
To find my evidence that ratifiers thought an amendment to the Articles could not be a complete substitute, I searched E
Two ratifiers in the Pennsylvania Convention argued an amendment to the Articles could not be a complete substitute. On November 26, 1787, the Pennsylvania Convention was several days into debating the new constitution. Anti-Federalist Robert Whitehill, who during the debates about the new constitution in the Pennsylvania legislature claimed the Philadelphia Convention had properly altered the Articles, now argued the contrary. He said that the Philadelphia Convention was supposed to have only “give[n] more powers to [the Confederation] Congress” and that “[a new] general government was not thought of.” Whitehill added that “[t]he Convention … made a plan of their own” and thereby “assumed the power of proposing.” Convention Debates, Monday, 26th Nov., 1787, P.M., Convention Debates, November 28, 1787,
On December 4, Federalist James Wilson conceded the new constitution, which he viewed as totally different from the Articles, was based on “no power at all,” including the Philadelphia Convention’s amendment power. Wilson claimed the new constitution was only a proposal from “a private pen” for people to consider. 2 E U.S. C
In the same speech, Wilson reiterated how an amendment to the Articles could not be a complete substitute by telling the following story about Alexander Pope, the eighteenth-century poet and a hunchback:
It was customary with him [Pope] to use this phrase; “God mend me!” when any little accident happened. One evening, a link-boy was lighting him along [with a torch], and, coming to a gutter, the boy jumped nimbly, over it. Mr. Pope called to him to turn, adding, “God mend me!”” The arch rogue [boy], turning to light him, looked at him, and repeated, “God mend you! He would sooner make half-a-dozen new ones.”
Wilson added that “[t]his [story] would apply to the present [Articles of] Confederation; for it would be easier to make another [constitution] than to amend [the Articles.]” 2 E
At the close of the Pennsylvania Convention, 21 members signed “The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents.” Newspapers throughout the country published the dissent, which said, among other arguments, that the framers “were not appointed for the purpose of framing a new form of government, but … were expressly confined to altering and amending the present articles of confederation.” Dissent of the Minority of the Convention, 18 December 1787,
The Massachusetts Convention featured several comments arguing the new constitution amounted to a complete substitute to the Articles and thus was not an amendment. On January 18, 1788, General William Thompson argued Massachusetts should avoid adopting the new constitution until more states did so. Thompson noted the framers “were sent [to Philadelphia] … to amend this Confederation; but they made a new creature; and the very setting out of it is unconstitutional.” 2 E
On January 23, Thompson reiterated his above point as follows:
It is my wish she [Massachusetts] may be one of the … dissenting states [to the new constitution]; then we shall be on our old ground [the Articles], and shall not act unconstitutionally. Some people cry, It [sic] will be a great charge; but it will be a greater charge, and be more dangerous, to make a new one. Let us amend the old Confederation.
For Thompson, the new constitution could have been constitutional if it preserved some of the Articles’ “old ground.”
Another comment occurred on February 5 when Nathaniel Barrell claimed the new constitution, although “not … the most perfect system,” was justified as follows:
I am convinced the Confederation is essentially deficient, and that it will be more difficult to amend that [Articles] than to reform this [new constitution]; and as I think this [new] Constitution, with all its im] perfections, is excellent, compared with that [confederation], and … is the best constitution we can now obtain.
Here, Barrell referred to the Articles and the new constitution as different documents. He did not say the new constitution was an amendment to the Articles, but he suggested the Articles was unamendable.
Two ratifiers in the South Carolina Convention argued the new constitution amounted to a complete substitute to the Articles and thus was not an amendment. On January 16, 1788, Charles Pinckney argued for the new constitution but said the following (emphasis added):
Those [at the Philadelphia Convention] who had seriously contemplated the subject [of amending the Articles of Confederation] were fully convinced that 4 E
Pinckney thus claimed the new constitution, “a total change [to the Articles],” was necessary because amending the Confederation proved impossible. These remarks were consistent with his comment in the Philadelphia Convention that an amendment to the Articles could not be a complete substitute.
The next day, Anti-Federalist Rawlins Lowndes said states should hold another national convention to “add strength to the old Confederation, instead of hastily adopting another [the new constitution.]” He also asked, in reference to the replacement of the Articles with the new constitution by the Philadelphia Convention, “whether a man could be looked on as wise, who, possessing a magnificent building, upon discovering a flaw, instead of repairing the injury, should pull it down, and build another.” According to convention notes, Lowndes “could not understand with what propriety the [Philadelphia] Convention proceeded to change the Confederation; for … the sole object of appointing a convention was to inquire what alterations were necessary in the Confederation[.]” Perhaps feeling outnumbered, Lowndes concluded with a “glowing eulogy on the old Confederation[.]”
On June 4, 1788, two days into the Virginia Convention, several ratifiers opined that the new constitution was totally different from, and thus not an amendment to, the Articles. For instance, Anti-Federalist Patrick Henry wanted the Virginia Convention to hear readings of government documents from before the Philadelphia Convention that showed officials had expected the Philadelphia Convention to revise—not entirely replace—the Articles. Judge Edmund Pendleton objected that these readings would be irrelevant to the Virginia Convention’s mission to discuss the new constitution’s propriety. However, as follows, Pendleton conceded that the Philadelphia Convention’s revision power disallowed complete substitutes: “[T]hose Gentlemen [the framers] were only directed to consider the defects of the old system … not devise a new one[.] [But] they found … [the confederation] so thoroughly defective as not to admit a revision, and submitted a new system[.]” 3 E
Throughout that day, Henry called the new constitution many names, including “an entire alteration of government,” “a proposal that goes to the utter annihilation of the [confederation],” and “a proposal to sever … [the] confederacy.”
June 6 saw more such comments by Henry, Randolph, and James Madison. In the following passage, Henry warned that, given what he viewed as the violation by the Philadelphia Convention of its revision power, Virginians who will attend a future U.S. Congress under the new constitution could similarly abuse their powers:
When we trusted the great object of revising the Confederation to the greatest, and best, and most enlightened, of our [Virginia’s] citizens, we thought their deliberations would have been solely confined to that revision. Instead of this, a new system, totally different in its nature, and vesting the most extensive powers in Congress, is presented. Will the ten men [Virginians] you are to sent [sic] to [the U.S.] Congress be more worthy than those seven [men who represented Virginia in the Philadelphia Convention] were? If power grew so rapidly in their hands, what may it not do in the hands of others?
Thereby, Henry suggested the new constitution amounted to a complete substitute and thus was not a valid revision to the Articles.
Randolph suggested, with the following remarks, that nothing from the Articles was amendable:
I come now … to the great inquiry, whether the Confederation be such a government as we ought to continue under.… Did I believe the Confederation was a good thread, which might be broken without destroying its utility entirely, I might be induced to concur in putting it together [with amendments]—but, I am so thoroughly convinced of its incapacity to be mended or spliced, that I would sooner recur to any other expedient.… The Confederation is, of all things the most unsafe, not only to trust to in its present form, but even to amend.
For emphasis, Randolph added that no part of the Articles “deserves to be retained” and that the Confederation was now “an old benefactor.”
James Madison discussed how similar the “feeble” Confederation was to other confederacies in history that he considered ineffective, such as the Achaean League of Greek states. In the following quote, Madison did not use the words amend, alter, or revise, but he implied the new constitution was a complete replacement—not an amendment and thus a continuation—of the “fatal” Articles (emphasis added):
If we recur to history, and review the annals of mankind, I undertake to say that no instance can be produced … of any confederate government that will justify a
Of course, this argument contradicted Madison’s argument as Publius that the new constitution was an extensive alteration—not a complete substitute—to the Articles. Nevertheless, both arguments suggested an amendment could not be a complete substitute.
William Grayson provided the Virginia Convention’s most intriguing comments regarding how an amendment to the Articles could not be a complete substitute. Of course, Natelson’s argument depends significantly on Grayson’s comment on June 14 that bill amendments could be complete substitutes, even though Madison immediately contradicted this comment.
Grayson made several comments before June 14 suggesting he thought differently regarding amendments to the Articles. For example, on June 11, Grayson said the Articles’ “defects … cannot be removed but by death,” but if men are “capable of freedom and good government,” then the Articles “should [nevertheless] be amended.”
[H]ave a President for life, choosing his successor at the same time; a Senate for life, with the powers of the House of Lords; and a triennial House of Representatives, with the powers of the House of Commons in England.
Here, Grayson gave the options of amending the Articles or adopting his new, powerful government. He did not say the Convention could create his new government by amending the Articles.
Finally, late in the Convention on June 24 when Grayson argued Virginia should properly amend the new constitution before ratification, he said, “[t]he late Convention were not [even] empowered totally to alter the present Confederation. The idea was to amend. If they lay before us a thing quite different, we are not bound to accept it.”
Two ratifiers in the New York Convention suggested an amendment to the Articles could not be a complete substitute. On June 19, 1788, two days into the New York Convention, Federalist Robert Livingston explained why the Philadelphia Convention proposed the new constitution as follows (emphasis added):
[A] change … [was] necessary in the form of the government[.] [W] e could no longer retain the old principle of the confederacy, and were compelled to change its form, 2 E
So, since the Philadelphia Convention thought nothing of the Confederation was salvageable, Livingston suggested the new constitution was a departure from—not an amendment to—the Articles.
The next day, Federalist Alexander Hamilton argued that, given the Articles’ concentration of all national power in the Confederation Congress, The Articles of Confederation did not create an executive or a judicial branch. Only the Confederation Congress, which had such powers as the powers to engage in war and coin money, made national decisions.
[I]t appears to me extraordinary, that, while gentlemen in one breath acknowledge that the old Confederation requires many material 2 E
However, Hamilton thereby advocated for the new constitution, a “government totally different [from the Confederation],” over any amendment to the Articles, suggesting he did not think a complete substitute could be an amendment. By saying the country must eradicate the “fundamental principle of the old Confederation … before we can expect an efficient government,” Hamilton indicated he may have been open to amendments that preserved the Articles’ less fundamental principles. This argument was similar to his arguments as Publius that suggested an amendment could preserve only secondary or minor parts of the Articles.
As discussed earlier, Natelson found an example of a complete substitute to a resolution in the North Carolina Convention. However, as with other state conventions, this convention featured several comments that suggested an amendment to the Articles of Confederation could not be a complete substitute. On July 23, 1788, William Davie argued for ratification of the new constitution but made this point (emphasis added):
4 E
Davie thereby implied the new constitution was so different from the Confederation that the new constitution was a “mere proposal” and not an amendment.
In the following passage from July 30, Anti-Federalist William Lenoir lambasted the new constitution as a violation of the Philadelphia Convention’s amendment power (emphasis added):
When we consider this system collectively [the new constitution],
Lenoir then warned that, given what he viewed as this precedent for permitting an amendment to be a complete substitute, “it may be thought proper, by a few designing persons, to destroy it [the new constitution], in a future age, in the same manner that the old system [the confederation] is laid aside.”
Federalist Richard Spaight opposed Lenoir’s argument that the Philadelphia Convention exceeded its power. Spaight, who attended the Philadelphia Convention, made this argument (emphasis added):
I deny the [Lenoir’s] charge [that the framers exceeded their powers]. We were sent with
However, Spaight thus borrowed William Davie’s earlier argument that the new constitution was not an amendment but rather a “mere proposal” based on the situation’s necessity.
Natelson presented evidence from state conventions that ratifiers thought amendments could be complete substitutes. His evidence amounted to 1) William Grayson’s remark on June 14, 1788, in the Virginia Convention, to which Madison immediately objected, that the Senate’s power to amend House bills for raising revenue permits complete substitutes and 2) an example of a complete substitute to a resolution in the North Carolina Convention.
My evidence from state conventions suggests the dominant view among the ratifiers—Federalists and Anti-Federalists alike—was that an amendment to the Articles could not be a complete substitute. For instance, in the Massachusetts Convention, General William Thompson said the framers “were sent [to Philadelphia] … to amend this Confederation; but they made a new creature[.]” In the Virginia Convention, Grayson even later contradicted his above statement that amendments could be complete substitutes. When discussing the new constitution’s propriety on June 24, Grayson claimed the new constitution “totally … alter[ed]” the Articles and thus was not an amendment. Such remarks by Thompson and Grayson were predictable given the wealth of evidence from the British parliament, Philadelphia Convention, Confederation Congress, and state legislatures indicating amendments could not be complete substitutes. Thus, the preponderance of evidence from the state conventions suggests the original understanding of the scope of an amendment disallows complete substitutes.
My examination of founding-era dictionaries and analysis of various writings from the ratification period discovered the original public meaning of amendment in the Origination Clause. This meaning of amendment is a change or alteration to something that must 1) be germane to that something, 2) preserve at least the essence of a significant part of the substance of that something (a “significant part” being a distinct portion that served a function within that something), and 3) make that something transform from bad to better.
Natelson argued the original understanding of the scope of an amendment permits complete substitutes. His evidence amounted to 1) William Grayson’s remark at the Virginia Convention, to which Madison immediately objected, that the meaning of the word amendment in the Origination Clause permits complete substitutes, 2) an example of a complete substitute to a resolution during the North Carolina Convention, and 3) two examples of complete substitutes to resolutions in the Virginia legislature.
However, as shown in my article, the preponderance of evidence leading up to and from the state conventions suggests the original understanding of the scope of an amendment actually disallows complete substitutes. For one, in the decades leading up to the founding, members of the British parliament consistently suggested bill amendments could not be complete substitutes, such as in 1736 when a lord said a bill amendment could never alter the whole of a bill because “the Bill would then be a new Bill.” Also, much evidence from the Philadelphia Convention, Confederation Congress, state legislatures, and state conventions suggests the dominant view among the founders was that an amendment to the Articles of Confederation could not be a complete substitute. For instance, in the Philadelphia Convention, James Wilson explained what he believed was the limit of the scope of the Convention’s alteration power. “[E]very article [of the Articles] may be totally altered,” he said, “except that wh[ich] destroys the Idea of a confedy [confederation].” And late in the Virginia Convention, Grayson officially switched his position about the propriety of complete substitutes and argued the Philadelphia Convention “totally … alter[ed]” the Articles when “[t]he idea was to amend.”
The original public meaning of the scope of an amendment provides a new definition of a complete substitute to a bill. As discussed earlier, Natelson’s definition of a complete substitute focuses on whether an amendment preserves any exact language of a bill. He said a complete substitute occurs when (emphasis added)
It is therefore simple to determine if PPACA or any other amendment by the Senate to a House bill for raising revenue that is a new bill for raising revenue complies with the original public meaning of the scope of an amendment. One should ask if the given amendment preserved at least the essence of a significant part of the substance of the respective bill. PPACA, as the Senate’s amendment to the House’s Service Members bill, replaced every significant part of the substance of the Service Members bill, including the essence of every significant part, with new parts. PPACA preserved only the number of the Service Members bill, which was H.R. 3590 and which obviously served no function within the Service Members bill. PPACA thus was a complete substitute to the Service Members bill and violates the original public meaning of the scope of an amendment in the Origination Clause.