In his landmark T Tessa Dysart, J
Surely, Jefferson’s manual influenced both his contemporary and later congressmen. For instance, by as early as 1802 the Senate invoked rules from Jefferson’s manual about keeping sensitive treaty proceedings secret,
A A J Brian Alexander,
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More recent publications have described several complete substitutes in Congress after the Civil War. For instance, scholar Michael Evans (2004) documents the Senate’s attempt in 1872 to completely replace a House bill reducing taxes on tea and coffee with a bill aiming to abolish the federal income tax and alter the tariff system.
Michael W. Evans, Rebecca M. Kysar, Daniel J. Smyth, For instance, the “gut-and-amend” procedure resulting in EESA kept the original House bill’s provision that commanded group health insurance plans to impose the same limits on benefits for mental health and substance use treatment as on all other medical and surgical benefits.
Jefferson’s two above quotes and all these just-mentioned examples of Congress’ complete substitutes are relevant to discussions of the Constitution’s Origination Clause. This clause, ratified as part of the original Constitution in 1788, reads (emphasis added), “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with U.S. C Priscilla H.M. Zotti & Nicholas M. Schmitz,
Historical legal arguments justifying the Senate’s practice of complete substitution to House revenue bills—particularly in the case of PPACA—have heavily relied on Jefferson’s two quotes and the mentioned examples of complete substitutes since the Civil War.
Sissel v. U.S. Dep’t of Health & Human Servs., 799 F.3d 1035, 1061–62 (D.C. Cir. 2015) [hereinafter
The other main evidence some of these historical legal arguments rely on is a quote by Delegate William Grayson in the Virginia Convention to ratify the Constitution on June 14, 1788.
But of course, as Zotti and Schmitz have noted, the Origination Clause applies only to bills for raising revenue and to Senate amendments on these bills.
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My previous research examined the original public meaning of amendment, which of course had the same meaning relative to revenue bills as to “other bills,” such other legislation as resolutions, and even constitutions.
Randy E. Barnett, One may think that this definition of a valid amendment is too lenient and that an amendment is invalid when it replaces, say, the intention or majority of an original item. Surely, amendment extensiveness may be understood as a spectrum, with amendments getting closer to a “complete substitute” as they depart from the original. However, in analyzing ratification records, my previous research did not find enough evidence to claim a more stringent definition of an amendment.
The original public meaning of amendment appears to conflict with the practice of complete substitution that Jefferson’s quotes seemingly validate and that In general, this decade represents the time frame of post-ratification evidence most relevant to originalism (and the earlier the evidence—especially from the First Congress held 1789 to 1791—the stronger it is). Few originalists view post-ratification evidence from after this decade as capable of significantly informing the meaning of the original Constitution.
Answers to these questions may have important implications for debates surrounding the Origination Clause. It is true many originalist scholars give post-ratification history little importance when determining the original meaning of a constitutional word or provision. A primary reason is even congressmen in the First Congress may have taken actions inspired more by political considerations than by any constitutional fidelity.
Jake Linford,
One should note complete substitution is not the only legal controversy surrounding the Origination Clause. Another important controversy is if Senate amendments may originate a new revenue bill by simply “tacking” it to a House revenue bill.
Chris Land, Natelson argued that, according to the Constitution, “all taxes are within the same subject” and may therefore be swapped in and out of revenue bills through amendments.
Before delving into early congressional records to track the rise of complete substitutes, it is worth examining several background topics. These topics include A) proper context to Jefferson’s two manual quotes, B) any occurrences of complete substitutes in British Parliament and American legislative bodies before the Constitution’s ratification and the First Congress, C) the general permissibility of extensive amendments in British and early American history, and D) any rules of procedure addressing complete substitutes in the early Congresses.
To best understand and weigh the evidentiary strength of Jefferson’s two manual quotes, this article must first place Jefferson’s quotes in proper context. In a section titled “Amendments,” Jefferson’s manual presents the two quotes together as one paragraph that reads, in full, as follows:
Amendments may be made so as totally to alter the nature of the proposition; and it is a way of getting rid of a proposition, by making it bear a sense different from what was intended by the movers, so that they vote against it themselves.
No other part of this “Amendments” section—or the rest of the manual—addresses the permissibility of a complete substitute.
In any case, Jefferson’s two quotes do not necessarily indicate that legislative amendments could completely replace an original item with totally different and non-germane text. As shown above, Jefferson’s first quote that “[a]mendments may... totally...alter the nature of the proposition” is actually followed by a semicolon and then this clarification (emphasis added): “[I]t is a way of getting rid of a proposition, by making it
In addition, Jefferson based much of his manual on—and even borrowed both the “totally...alter” and “new bill...ingrafted by way of amendment…” quotes from—his J
Furthermore, Jefferson’s sources for both manual quotes address the procedures of British Parliament, not U.S. Congress or other American legislative bodies. The “totally...alter” quote cites John Hatsell’s J J
Moreover, as Natelson has indicated, neither of these citations for Jefferson’s quotes even provide much background support for Jefferson’s claims.
J
And the Commons debate from 1669 that Jefferson cites when claiming “[a] new bill may be ingrafted by way of amendment...” provides even more dubious background support. This debate discussed a controversial bill from the House of Lords “for taking away Privilege, and increasing the numbers of Peers upon tryals.” A member of Parliament said, “save this Bill if it have [sic] ten good lines,” and another member announced he would “retain the Bill to mend it.” Later, a third member remarked—perhaps sarcastically in response to these calls to mend and save ten lines of the bill—that “One line only to be grafted upon in this Bill, viz. ‘Be it enacted by the Lords and Commons.’”
“Debates in 1669: November 27,” in
All this proper context to Jefferson’s quotes is insufficient grounds to outright dismiss Jefferson’s quotes as evidence for the permissibility of complete substitutes in early Congress. For instance, it would be reasonable to argue Jefferson included these quotes in his manual because he thought they fairly represented actual Senate practice. Nevertheless, this proper context to Jefferson’s quotes indicates his quotes are not close to being conclusive evidence for the permissibility of complete substitutes.
What was the precedence of complete substitutes in British Parliament and American legislative bodies before the Constitution’s ratification on June 21, 1788, and the First Congress’ start on March 4, 1789?
Gary Lawson & Gary Seidman,
My previous research examined British parliamentary practice from 1688 to 1789, the century leading up to the Constitution’s ratification, using relevant volumes of Cobbett’s W
I found only one example of a complete substitute to non-bill legislation. This example occurred in the Lords on November 25, 1779, and involved the Lords’ response address to a speech by King George III to Parliament.
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No other lord challenged Lord Stormont’s objection, but it surprisingly garnered no further commentary. After more debate on the political merits of the Marquis’ amendment, it lost by a vote of 82 to 41.
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Turning to American legislative bodies, my previous research assessed the existing evidence of complete substitutes from the Continental Congress, state legislatures, and state conventions between 1774 and 1790. This roughly 15-year period included the years between the start of the First Continental Congress and when all original states had ratified the Constitution.
The first supposed complete substitute was in the Virginia House of Delegates and occurred on June 6, 1780.
That That certain funds ought to be established for furnishing to the continent the quota of this State, for the support of the war for the current year. That a specific tax ought to be laid for the use of the continent in full proportion to the abilities of the people.
After the House changed the word “ten” in the first resolution to “fifteen,” a delegate proposed the following replacement language to the first resolution (emphasis added):
[T]hat this Commonwealth will take upon itself its due
However, this amendment to the first resolution, which was quickly rejected, did not amount to a complete substitute. As indicated with the above italics in the original first resolution and its proposed substitute, both these versions contained the same call for Virginia to pay its share of the national debt. Specifically, the original called for “certain funds to be established [by Virginia]” to pay off Virginia’s “quota of the continental debt,” while the substitute called for establishment of “certain funds” to pay off “this Commonwealth’s due proportion” of the continental debt of $180 million. Also, the proposed amendment was no complete substitute because the amendment was to replace only one of a series of related resolutions, not the entire series. A series of related resolutions—much like a series of sections in a bill—are presented together for consideration and should be treated as a whole legislative proposal.
The second supposed complete substitute was on December 19, 1780, and again involved the House of Delegates.
That the delegates representing this State in Congress, ought to be allowed a certain fixed and genteel support…[of] two pounds six shillings in specie per day for every day that he shall attend…Congress[.] That the treasurer of this Commonwealth ought to take effectual measurers to lodge a sufficient credit in Philadelphia, for the purpose of furnishing the delegates their pay as aforesaid. That the said
After the House approved the first two resolutions, a delegate proposed—and the House approved—a substitute to the third resolution in these words (emphasis added):
[T]hat
This approved substitute was not a complete substitute for two reasons. First, as indicated with the italics in the original third resolution and its substitute, the substitute kept the original’s call to hold Meriwether Smith accountable for—and get his input regarding—an apparent unauthorized use(s) of state funds. The original alleged Smith was guilty of misusing funds and should “answer for such misapplication,” and the substitute more diplomatically said that Smith’s accounts show some funds “unaccounted for” and that there should be a “full and explicit settlement [by Smith] of his accounts.” Second, the approved substitute replaced only one of a series of related resolutions, not the entire series.
The third supposed complete substitute, which occurred in the North Carolina ratifying convention, was surely extensive.
Whereas (The Constitution.) Resolved,
Then, a delegate proposed the following substitute, which was subsequently rejected (emphasis added):
[Five specific amendments, such as this one: “That Congress shall not introduce foreign troops into the United States without the consent of two-thirds of the members present of both Houses.”]
At first glance, the proposed substitute may appear to be a complete substitute, as the original report calls for immediate ratification of the Constitution while the substitute essentially calls for specific constitutional amendments. However, both reports shared mention of the fact that the Philadelphia Convention had proposed a new constitution for consideration by states, which served as an introduction for the reports’ respective calls to action. And, more importantly, both reports called for ratification of the Constitution. The original report obviously calls for immediate ratification, and the substitute calls for ratification “in [sic] behalf and on the part of the State of North Carolina” after incorporation of the proposed amendments.
All considered, during the 15 years (1774 to 1789) leading up to the Constitution’s ratification and the First Congress there was a precedence of only one actual complete substitute in British Parliament, which involved a parliamentary address to the King, and zero actual complete substitutes in American legislative bodies. Of course, it is uncertain that no compete substitutes occurred in American legislative bodies during this period. For instance, as Natelson has noted, analysis of paper-only records in state legislative archives could reveal unknown amendments,
H J 14 J
It bears emphasis that extensive, germane amendments short of complete substitutes are consistent with the original public meaning of amendment. There were a significant number of these amendments in British Parliament and American legislative bodies leading up to the Constitution’s ratification.
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During early U.S. Congresses, the situation regarding rules of procedure for complete substitutes was somewhat complicated. The Senate never had a rule governing a motion “under color of amendment as a substitute” as in the Continental Congress.
This proper background to examining Congress’ rise of complete substitutes has involved discussions of A) context to Jefferson’s two manual quotes, B) the precedence of complete substitutes before the Constitution’s ratification and the First Congress, C) the general permissibility of extensive amendments, and D) the situation in early Congresses regarding rules of procedure for complete substitutes. These discussions allow for several important deductions. First, as Jefferson’s quotes are non-conclusive evidence for complete substitutes in early Congresses, one should not necessarily expect to find complete substitutes in early Congresses. Second, the lack of a significant precedence of complete substitutes in British Parliament and American legislative bodies indicates how novel complete substitutes as an accepted practice may have been to Congress once they emerged. Third, the permissibility of extensive amendments in the original public meaning of amendment gives Congress much leeway in making amendments despite the implicit ban on complete substitutes. Finally, even though the House continuously had a rule of procedure in early Congresses that seems to have banned complete substitutes, there was ample opportunity for complete substitutes to occur in Congress, especially in the Senate.
I examined congressional amendment practice vis-à-vis complete substitutes between 1789 and 1805, a period spanning from the First Congress (beginning March 4, 1789) through the Eighth Congress (ending March 3, 1805). This period included the important first decade (1789–1799) and the years leading up to and soon after publication of Jefferson’s manual in 1801. To examine amendment practice, I first searched for and highlighted every mention of “amend” and words with the root of “amend,” such as “amendment” and “amended,” in the following main sources of early congressional records:
Journals of the House
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In these three main sources (and excluding the
Then, I searched for and highlighted every mention of the following 25 key words historically associated with “gut-and-amend” procedures to best identify any possible complete substitutes to any legislation:
All after Alter Enacting Entire Except “Expung” (for expunge, expunging, etc.) In lieu Insert “Modif” (for modify, modified, etc.) New bill New resolution “Originat” (for originate, originating, etc.) Replace Residue “Revis” (for revise, revision, etc.) Strike out Strike out all Striking out Striking out all Struck out “Substitut” (for substitution, substituted, etc.) To the end Under color Whole bill Whole resolution
Finally, I went page by page in these sources analyzing the text surrounding any mention of “amend” and its derivative words or the above 25 keywords. I recorded any instance where a complete substitute may have occurred. Such instances included when congressmen used a “gut-and-amend” procedure (e.g., “strike out all after the enacting clause and insert...”) and when it was otherwise evident a whole proposal may be at stake (e.g., a committee to amend a bill proposes a “new bill”). As needed and to verify whether a complete substitute actually occurred, I consulted available legislative texts (or exerts of or references to these texts) found in the journals, Legislation: 1799–1801, 1801–1803, 1803–1805. Available from: Congress.gov (Law Library of Congress). 1–2 Stat. (1789–1805). ProQuest Digital U.S. Bills and Resolutions. Available from: ProQuest® Congressional. Records of the United States House of Representatives, Record Group 233 (RG 233); National Archives Building, Washington, DC (NAB); Records of the United States Senate, RG 46; NAB.
I was unable to examine the totality of available paper records of early Congresses at the National Archives Building, Washington, DC. The British military burned the Capitol building, including the early congressional records stored there, during the War of 1812.
Jessie Kratz, I did examine if any law
It is important to emphasize that my analysis considered an amendment to be a complete substitute if the item being amended was a whole entity and not just a part of a larger whole. Key examples of a whole entity include a bill, stand-alone resolution, series of related resolutions, report, order, and an address to the U.S. president. Key examples of items that are not whole entities and are part of a larger whole include 1) a resolution that is one of a series of two or more related resolutions presented together for consideration, 2) a proposed amendment to the Constitution that is one of a series of two or more proposed amendments presented together for consideration, and 3) an individual amendment as occurs when one tries to amend an amendment to a piece of legislation (unless, of course, the amendment being amended is a complete substitute to a whole entity). Afterall, this article is debating complete substitutes to whole bills—that is, whole entities—not complete substitutes to clauses, sections, or other parts of a bill. It would be erroneous to use an example of a complete substitute to a part of a whole entity as evidence for permitting complete substitutes to whole entities.
My analysis of the journals and
This Part first discusses the episodes where I verified complete substitutes were actually—or most likely—involved (the “Yeses”). I also discuss when complete substitutes were attempted—that is, held out of order, withdrawn, or otherwise not voted on. Then, this Part presents a tentative timeline of these actual versus attempted complete substitutes. The timeline shows all these complete substitutes relative to the only actual complete substitute in British Parliament and to such other relevant milestones as the Constitution’s ratification date. Finally, this Part addresses the episodes where it turns out a complete substitute clearly—or most likely—did not occur (the “Nos”).
I found a total of six complete substitutes, including four attempts and two actuals. These six episodes represent a relatively small number of complete substitutes overall considering that, as mentioned earlier, I found over 29,000 mentions of amend or its derivative words in the journals and
Surprisingly, the first attempt was in the House in the First Congress on May 31, 1790. The House was considering a resolution that “Congress shall meet and hold their next session at --” (with “--” indicating a location to be determined later). A congressman then declared there was “more important business...before the House” and proposed a non-germane complete substitute. This substitute read, “a permanent seat for the [U.S.] Government…ought to be fixed at some convenient place on the banks of the river Delaware, and [--]” (with “--” indicating a location to be determined later). After the Speaker decided the amendment was out of order, an appeal was made to the entire House. With the Speaker casting a tie-breaking vote to make the tally 30 to 29, the House upheld the non-germane substitute as out of order. Although neither the journal nor the 1 H Such a House rule emerged in 1822, when the House changed its rule against motions “under color of amendment as a substitute” to be against only a “[new] proposition on a [different] subject...under color of amendment.” See
No other attempted complete substitute occurred in either chamber until the first actual complete substitute, which was almost a decade later in the Senate on March 6, 1800 (Sixth Congress). The important background to this episode was Presiding Officer Thomas Jefferson, a Republican, was surely considering entering a close race for U.S. president that year against then-President John Adams, a Federalist (Jefferson ended up being nominated in May and ultimately won the election).
S D D Roy Swanstrom, The United States Senate, 1787–1801: A Dissertation of The First Fourteen Years of the Upper Legislative Body 307 (1962) (Ph.D. dissertation, Seattle Pacific College).
Under Senate debate on March 6 was a resolution calling for a congressional investigation into the That the Committee of Privileges [shall] inquire who is the editor of…the 3 S
In short, this resolution requested a legislative committee investigate this editor and his source(s), even by summoning persons, papers, and records.
A congressman, clearly in opposition to this resolution, proposed the following substitute amendment:
[T]he constitution…does not vest in…Congress…any other powers… of privilege than those mentioned [such as punishing its members for disorderly behavior.] [T]herefore, to assume any other privilege would be to diminish the [people’s] rights[,] to encroach on the [judiciary’s] powers…; to disparage the right of trial by jury; and to establish…that a single branch…can…in their own case, punish for reasons on which the constitution has given them no power to decide.
This proposed amendment criticized—albeit indirectly—the perceived lawlessness of the original resolution’s proposed investigation of a newspaper editor, so the amendment was germane to the original resolution. However, the amendment lacked the essence of any significant part of the original resolution, such as a grant to a legislative committee or other entity to investigate the newspaper editor or his sources. Instead, the amendment essentially communicated that any assumption by Congress of having such an extra-constitutional privilege as the authority to investigate an editor would be an abuse of power that violates people’s rights.
After some debate on this obvious complete substitute, the Senate adjourned for the day. Two days later on March 8, the Senate reconsidered, slightly reworded, and ultimately rejected the substitute by a vote of 19 to 8. But, as this substitute was voted on and not held out of order, it qualifies as an The second “gut-and-amend” procedure offered the following language, which was similar to the original resolution: “[T]he Committee of Privileges [should]…inquire and report whether…the publication of [February 19th]…in the
The first actual complete substitute in the House of Representatives was months later on December 22, 1800, representing Congress’ second actual complete substitute overall. A representative had proposed the following resolution about controversial government actions in the Mississippi Territory under Governor Winthrop Sargent:
That the laws passed by the Governor and Judges of the Mississippi Territory…heretofore presented to the House, together with all the documents relative thereto, be transmitted to the [U.S.] President[.]
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Immediately, another congressman proposed the following substitute amendment:
[A] committee be appointed to inquire into the official conduct of Winthrop Sargent, Governor of the Mississippi Territory, and to report thereon to this House; and that the said committee have power to send for persons, papers, and records[.]
The original resolution and the amendment were germane because they addressed certain actions (i.e., “laws passed” in the original versus “official conduct” in the amendment) by Governor Sargent of the Mississippi Territory. But the original called for all the House’s materials on this topic to be transferred to the U.S. president (presumably for possible executive action), while the amendment—in a totally different approach—would establish a House committee to investigate the Governor’s conduct. Neither Speaker Theodore Sedgwick nor another representative objected that the amendment was a substitute. After significant debate on the amendment’s exact wording, the House passed the amendment with a vote of 70 to 11.
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After this actual complete substitute in the House, I found no more actual but a few more attempted complete substitutes—all in the Senate. The next attempt was on January 19, 1802 (Seventh Congress), when Aaron Burr of New York was the Senate’s Presiding Officer in his role as Jefferson’s Vice President. This episode involved a resolution stating that “[T]he act passed last session respecting the Judiciary Establishment of the United States, be repealed.” A substitute amendment was proposed requesting a “committee be appointed to inquire if any, and what, alterations are necessary in the Federal Judiciary system.” This amendment kept the topic on the judiciary. However, the amendment’s suggested course of action of having a committee consider possible alterations to the general judiciary system was completely different than the original resolution’s call to outright repeal a specific judiciary law. After all, any committee list of possible alterations to the general judiciary system would not necessarily include a call to repeal the mentioned judiciary law. Burr rejected the proposed amendment as out of order, although the 11 A U.S. 7th Congress, 1801–1803. Senate. Rules for Conducting Business in the Senate (Washington, 1801). MWA copy (on file with author). This proposed amendment was no complete substitute to the original resolution. While a repeal of the judiciary law would have totally changed the state of the law, an amendment would have involved at least a partial change. After all, an amendment requires there be some kind of improvement to the original (i.e., a change from bad to better). 11 A
Another attempted complete substitute occurred on January 6, 1803 (Seventh Congress). The Senate was debating a resolution “that a committee be appointed to bring in a bill for giving effect to the laws of the United States within the state of Ohio.” Before the Senate adjourned that day, a senator motioned an amendment with this replacement text:
[A] committee be appointed to inquire whether the people of the eastern division of the territory northwest of the river Ohio have formed a constitution and state government agreeably to the constitution and [U.S.] laws…and the ordinance of Congress for the government of the territory of the United States northwest of the river Ohio, and make report thereon.
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Both the original resolution and the amendment called for appointing a committee on the topic of the Territory Northwest of the River Ohio, but this similarity establishes only germaneness. The original specifically called for a committee to report a bill for extending U.S. laws to the entire territory, whereas the amendment called for a committee to inquire and report on whether the territory’s eastern division has a constitution and government agreeable to federal laws and the Constitution. The amendment did not further stipulate that federal laws could be extended to the entire territory or its eastern portion and thereby was a complete substitute. The next day, this proposed amendment was withdrawn with no reason provided. The Senate then passed another amendment that reworded the original resolution.
The last attempted complete substitute was on February 2, 1805, during the Twenty-Third Session of the Executive Proceedings of the Senate (Eighth Congress). This episode involved a proposed treaty between the United States and the Creek Nation. Under debate was the following resolution, which was originally proposed on January 22: “[T]he Senate do advise and consent to the ratification of the treaty, made in [sic] behalf of the United States with the Creek nation of Indians…on [November 3, 1804.]”
1 S [T]he further consideration of the treaty entered into…on [November 3rd]…be postponed until…December next; and that the [U.S.] President…be requested to enter into further negotiations with the Creek nation of Indians…to effect, if possible, such modification of the terms contemplated by said treaty, as well relative to price, as to the mode of payment, as may be more conformable to…[U.S.] interest[s].
Clearly the substitute was germane to the original, as both versions addressed the proposed treaty with the Creek Nation. However, the original resolution requested immediate consent to the treaty, while the amendment requested 1) the president to restart negotiations with the Creek Nation to improve U.S. benefits and 2) postponement of further treaty consideration until December 1805 (presumably to give the president time for renegotiations). The amendment’s proposer may have envisioned eventual consent to the treaty (with the stated changes), but the amendment did not mention eventual consent. This amendment could have ended up being an actual complete substitute, but the Senate decided not to delete the original text and thus held no vote on the new language. The Senate then rejected the original resolution.
My analysis of congressional records from 1789 to 1805 (First through Eighth Congresses) revealed six complete substitutes, including four attempts and two actuals. All six substitutes involved resolutions and never revenue bills or other legislation. Figure 1, provided below, shows a tentative timeline of these actual versus attempted complete substitutes. The figure also shows the first actual complete substitute in British Parliament and other relevant milestones, such the Constitution’s ratification date and Jefferson’s tenure as the Senate’s Presiding Officer. The House had the first attempted complete substitute in 1790 (First Congress), which was held out of order. Neither chamber had another attempt until almost a decade later with the Senate’s first actual complete substitute in March 1800 (Sixth Congress), which was voted on and rejected. Later that year in December, the House followed suit with its own actual complete substitute, which passed. In the ensuing years until 1805 (Eighth Congress), there were three more attempted complete substitutes—all in the Senate—including a germane one in 1802 held out of order.
Twenty-six of the 32 episodes I identified as involving at least one “gut-and-amend” or similar procedure were clearly—or most likely—not complete substitutes. This Section chronologically discusses the 10 of these 26 episodes that are more complicated and require elaboration. For instance, for almost all these 10 episodes, neither the journals nor the
The first episode occurred in the House early in the First Congress on June 29, 1789. The committee on the “bill to regulate the collection of the duties imposed on goods, wares, and merchandises imported into the United States” reported “an entire new bill, as an amendment and substitute to the former bill.”
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The second episode involved a House resolution proposed on April 7, 1794 (Third Congress). The resolution requested a halt to commercial intercourse with Great Britain and its economic allies unless Great Britain compensated America for several perceived grievances, such as “loses and damages” imposed by hostile British vessels on U.S. ships. This resolution generated multiple days of debate.
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During a debate on April 14, William Smith of South Carolina argued against the resolution’s wording. His primary objection was that the resolution’s threat to halt commercial intercourse was an unproductive negotiation technique. In a lengthy speech, Smith said he supported asking Great Britain for “reparations, in decent terms, unaccompanied with threats.”
More debate on the resolution continued the next day. Smith then “presented his modification of the original [that]…was declared to be a substitute by the Chair, and therefore out of order.”
E-mail from National Archives Building, Washington, DC, to Dan Smyth (October 14, 2021) (on record with author).
The third episode was on April 13, 1796 (Fourth Congress), and involved a House resolution addressing the prospect of implementing several new treaties. The resolution read as follows:
Resolved, That provision ought to be made by law for carrying into effect, with good faith, the Treaties lately concluded between the Dey and Regency of Algiers, the King of Great Britain, the King of Spain, and certain Indian tribes Northwest of the Ohio.
William Giles of Virginia moved to “strike out all the words after ‘Resolve[d],’ that the resolution might be filled up with other words.”
5 A E-mail from National Archives Building, Washington, DC, to Dan Smyth (October 14, 2021) (on record with author). 5 A
In addition, the
The fourth episode occurred on January 8, 1798 (Fifth Congress), after the House began discussing the “Bill for the relief of the legal representatives of certain deceased officers and soldiers.” This bill read as follows:
That the representatives of such officers and soldiers of the [U.S.] Army… as died after [March 24, 1783]…, and before [November 3, 1783]...shall be entitled to all the emoluments to which the said officers and soldiers would respectively have been entitled if they had lived to the end of the war between the United States and Great Britain [i.e., the Revolutionary War.]
Thomas Evans of Virginia motioned to “strike out all the bill after the enacting clause...to introduce words which went expressly to declare the period of the termination of the war.”
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The fifth episode occurred on April 13, 1798 (Fifth Congress), when the House considered a Senate amendment to the House’s “bill providing an appropriation for completing the necessary buildings in the city of Washington.” The Senate’s amendment “struck out all the bill, except the enacting clause, and inserted in its place a provision for a loan of [$]100,000[.]” Neither the journals nor the [That 200,000] dollars be appropriated for completing the buildings requisite for the [U.S.] Government…at the city of Washington[.]
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And right after the
The sixth episode began on June 1, 1798 (Fifth Congress), in the House with the “bill providing for the assessment and collection of direct taxes.” The House submitted the bill to a committee for amendment after deleting the bill’s first section, which comprised “the principle of the bill,” and requiring “many [other] alterations.” Several days later on June 5, the said committee reported its amendment as a “new bill” with a different title, being the “bill providing for the valuation of lands and dwelling houses, and for the enumeration of slaves in the United States.” One congressman even said this “new bill” excluded “everything which relates to the collection of the taxes [from the original bill], and...confine[d] it to the assessment only[.]”
Unfortunately, neither the journals nor
The next episode occurred a month later in the House on July 6, 1798 (Fifth Congress). The House was discussing the Senate “bill to declare the Treaties between the United States and the Republic of France void and of no effect.” This bill had one section reading as follows:
That the Treaty of Amity and Commerce, and the Treaty of Alliance, between the United States and the French Government...and the Consular Convention between the same parties…are hereby declared, void and of no effect[.]
Congressman William Giles of Virginia then suggested “whether a declaration of war might be moved as an amendment to the bill.” The Saikrishna Prakash, 8 A The first amendment declared the treaties void as follows: “[W]hereas the treaties have been in numerous instances violated, they are no longer to be considered as law within the United States[.]” The second amendment had this similar language: “[T]he United States are…freed and exonerated from the stipulations of the treaties…between the United States and France[.]”
The eighth episode happened several years later in the Senate in April 1800 (Sixth Congress) with the “bill to amend the act establishing the Judicial Courts of the United States.” This bill originated on April 8 from a committee led by Nathaniel Chipman of Vermont. The Senate decided to appoint this committee weeks earlier on March 12 with this purpose (emphasis added):
[T]o inquire whether any, and what, amendments are necessary in the act to establish the Judicial Courts of the United States [from 1789], 10 A
Neither the journals nor the It is important to distinguish this Chipman committee bill from the bill of the same title that Charles Pinkney originated on March 5, 1800, which banned the Chief Justice of the Supreme Court and other federal judges from simultaneously holding other government positions. The Senate considered Pinkney’s bill but rejected it on April 3.
After the Chipman committee bill’s second reading on April 16, the Senate sent the bill to a committee led by Wilson Nicholas of Virginia for possible amendment. On April 28, this Nicholas committee reported the following recommendation, which proposed to gut-and-amend the Chipman committee bill as follows (emphasis added):
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Clearly, this amendment text aimed to establish a process for summoning jurors to serve in U.S. courts, which—as discussed above—the original Chipman committee bill most likely had as well.
The next day on April 29, the Senate brought up the Nicholas committee amendment but never voted on it.
The ninth episode occurred in early 1801 (Sixth Congress) in the Senate and involved the House “bill to erect a mausoleum for George Washington.” The original bill’s full text is not in the journals or
A debate on this bill further noted the original bill allotted $70,000 toward building the mausoleum.
On January 22, 1801, a Senate committee on this bill proposed—and the full Senate accepted—an amendment that struck out “the whole of the [original] bill” for this replacement text:
In testimony of the respect and gratitude of…[American] citizens… to George Washington… 3 S
This new text had several blanks to be determined later (indicated by “--”), and the new text did not explicitly mention the appropriation would create a mausoleum. However, after this amendment passed, the title remained unchanged.
The tenth and final episode requiring elaboration occurred in the Senate on April 7, 1802 (Seventh Congress). Under debate was the “bill to revive and continue in force an act, entitled ‘An act to augment the salaries of the officers therein mentioned,’ passed the second day of March, 1799.”
3 S 11 A That in lieu of the salaries heretofore allowed by law to the [U.S.] officers…herein mentioned, the following compensations be…granted to the said officers… [The section then allotted various salaries up to $5,000 to 14 U.S. officers, such as the Secretary of State, Treasurer, and Postmaster General.]
The second section then declared the law would be valid for three years.
A senator then motioned that the original bill under debate (declaring this 1799 law’s revival) be replaced with new amendment text. However, this amendment simply duplicated all the 1799 law’s text, putting blanks (“…”) for the salaries of the 14 U.S. officers to be determined later.
These 10 episodes of a “gut-and-amend” or similar procedure involved varying levels of complexity. However, each amendment clearly or most likely preserved at least the essence of one significant part of the original legislation. The Appendix documents the 16 other similar episodes.
According to my analysis of congressional records from 1789 to 1805 (First through Eighth Congresses), the year 1800 marked the rise of complete substitutes—at least to resolutions and not revenue bills or other legislation—in Congress. In March that year, the Senate—with Thomas Jefferson as Presiding Officer—saw an actual complete substitute to a resolution requesting a congressional investigation into the
Of course, trying to propose complete substitutes as amendments was not novel to U.S. Congress in 1800. As documented, the year 1779 saw one attempted complete substitute to a resolution in the Continental Congress and an actual complete substitute to an address to the King in British Parliament.
But in U.S. Congress before 1800, complete substitutes—whether germane or non-germane—were evidently not accepted as proper amendments. For instance, the House’s rule against new motions under color of amendment, adopted during the First Congress, appears to have outright banned any complete substitutes. And from 1789 to 1799, the House had only one attempted complete substitute, which was in 1790 and which was held out of order. Furthermore, the Senate—even though it had no explicit rule against complete substitutes—never had an attempted complete substitute before its first actual complete substitute in 1800.
It evidently took Jefferson, whose
In any case, Congress’ early amendment practice confirms the original public meaning of amendment and not Jefferson’s two manual quotes that seemingly approve of complete substitutes. Between 1789 and 1805, the Senate made no complete substitutes to House revenue bills. And Congress’ first two actual complete substitutes to any legislation—in these cases resolutions—were in 1800, which was obviously after the important first decade (1789–1799/First-Fifth Congresses). There was thus no trace of any accepted, let alone consistent, practice of complete substitution in the earliest Congresses. This trend of no actual complete substitutes between 1789 and 1800 continued the rejection of complete substitutes in the Continental Congress and evident lack of complete substitutes in American legislative bodies between 1774 and 1790. Similar to how the British Parliament’s complete substitute to an address to the King in 1779 was an anomaly to the long British history opposed to complete substitution, Congress’ two complete substitutes to resolutions in 1800 were evidently anomalies to American legislative history. All considered, Jefferson’s two manual quotes—and any historical legal arguments for permitting the Senate’s complete substitutes to House revenue bills—lack any significant support from either the ratification period or the important first decade and thus have no significant foundation in originalism.
Jefferson, as the Senate’s Presiding Officer, appears to have unwittingly validated the apparent claim in his own manual that congressional amendments may be complete substitutes. He thereby created a precedent for and surely enabled Congress’ later complete substitutes, including the Senate’s substitutes to House revenue bills. Of course, this later Senate practice totally disregarded the original public meaning of amendment in the Origination Clause. But perhaps, given this article’s findings, this original meaning will return to prominence. Then, at the most, a Senate amendment to a House revenue bill could—without originating a new revenue bill—replace all parts of the House bill except for the essence of one significant part with new, germane parts.