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Deep Ignorance

Deep Ignorance

This column was first published in The Hill on February 20, 2018.

The web has been ablaze over the ignorance displayed by Senator Brian Schatz (D-Hawaii), who showed himself unaware of the Anglo-American legal heritage. Schatz revealed his lack of knowledge by mistaking Attorney General Jeff Session’s reference to that heritage for a racist dog whistle.

For those who have been living on Pluto — or serving in Congress — the phrases “Anglo-American heritage” and “Anglo-American legal system” are standard ways of referring to the jurisprudence America inherited from England. To a considerable extent, we still share that jurisprudence with our mother country. The Constitution itself is filled with English legal terms (such as habeas corpus, and privileges and immunities) that cannot be fully grasped without understanding the English heritage. Many, if not most, states — including Schatz’s state of Hawaii — have constitutional provisions or “reception statutes” formally adopting the common law of England.

If Schatz’s comment were unique, it would simply mark him as uniquely unfit to be a lawmaker. Unfortunately, in recent years other top officials have revealed similar deep ignorance. By this I mean ignorance not merely of academic or esoteric facts but of matters central to an officeholder’s responsibilities — and sometimes central to citizenship itself.

Readers may recall that in 2010 a reporter asked U.S. Rep. John Conyers(D-Mich.) what provision of the Constitution supported Obamacare’s individual insurance mandate. A video camera caught Conyers’ response:

Under several clauses. The good and welfare clause, and a couple others. All the scholars, all the constitutional scholars that I know— I’m chairman of the Judiciary Committee, as you know — they all say there’s nothing unconstitutional in this bill. 

Of course, the Constitution contains no “good and welfare clause.” What is just as disturbing is that Conyers apparently did not know that legal scholars had issued constitutional warnings about ObamaCare on several fronts, including its mandates on the states and the procedure Congress used in adopting it. (Some of these warnings were later vindicated by the Supreme Court.)

As Conyers observed, he was then chairman of the House Judiciary Committee. According to its website, that committee “has been called the lawyer for the House of Representatives because of its jurisdiction over matters relating to the administration of justice in federal courts, administrative bodies, and law enforcement agencies.” Because the Constitution is the federal government’s basic rule book, the committee is deeply immersed in constitutional issues. Conyers was not only its chairman; he had served on the committee for 45 years!

Educated citizens who enter politics eventually learn that deep ignorance is not unusual among elected officials. To idealists, the discovery can be a shock.

It was a shock to me. As a Montana political activist and candidate during the 1990s, I was stunned to learn that the incumbent Republican governor did not know whether the state budget he had approved was smaller or larger than the previous budget. He also was uninformed of the contents of other major bills he had signed into law. And after four years in office supposedly dealing with education issues, his second lieutenant governor still had no clue what a charter school was.

Deep ignorance is not limited to matters of law and policy. The “you didn’t build that” comments in 2012 by President Obama and Senator Elizabeth Warren (D-Mass.) represent a case in point. Claiming an entrepreneur did not build his business because he used pre-existing resources is like saying to an employee that he didn’t earn his salary because the employer provided the job. The comment reveals fundamental unawareness of how creativity and effort operate in a free enterprise context. This is a risk of electing people who have little or no private sector experience.

To be sure, deep ignorance is not the biggest problem in government right now. A more basic problem is that government has gotten too massive for officials to do their jobs, even if they all had the extraordinary knowledge and capacity of, say, the late Sen. Daniel Patrick Moynihan (D-N.Y.). Still, electing ignorant people to office aggravates the federal dysfunction so concerning to most Americans.

The most ‘underrated’ founder’s influence on America’s Constitution

The most ‘underrated’ founder’s influence on America’s Constitution

This article first appeared in The Hill.

This month marks the 250th anniversary of John Dickinson’s Letters from a Farmer in Pennsylvania — the landmark series of newspaper op-eds that laid out the colonial case against taxation without representation.

The letters were widely republished and made Dickinson for a time the most famous American in the world, second only to Ben Franklin.

The Farmer Letters should not, however, overshadow Dickinson’s immediate impact on the U.S. Constitution. The Constitution bears a much closer resemblance to his vision than to the pre-convention ideas of more celebrated founders.

Dickinson’s influence survives today in the structure of “the Hill” — that is, of Congress.

For example, Dickinson suggested the Great Compromise — equal representation of states in the Senate and “proportional” representation in the House — long before the convention adopted it. It also was Dickinson’s idea to moderate “proportional” representation by allotting to every state, no matter how small, at least one representative.

The House of Representatives enjoys the exclusive right of originating revenue bills only because John Dickinson, in company with Virginia’s Edmund Randolph, fought for it. They had to overcome the resistance of several skeptics, including James Madison.

Like most of the Founders, Dickinson opposed slavery. Unlike most of those convention delegates who had owned slaves, however, Dickinson already had emancipated his. Although he favored an immediate end to the international slave trade, he also recognized political reality. Thus, he helped negotiate the compromise by which Congress could abolish the slave trade, but only after 20 years.

Dickinson moved to permit, but not require, Congress to create federal courts below the Supreme Court and (despite some initial doubts) to allow Congress to impeach and remove the president.

The Constitution’s organization of the Senate largely followed Dickinson’s ideas. He suggested that Senators represent the states equally and be selected by state legislatures for long, staggered terms. He hoped the Senate would serve as a republican analogue of Britain’s upper chamber, protecting the states as the House of Lords protected the British aristocracy.

Just as important was Dickinson’s influence on American federalism. In pre-Independence writings, he outlined his ideal division of powers between the colonies and the central government in London. The division later ordained by the Constitution between the states and the federal government was remarkably similar.

On this subject of the federal-state balance of power, Dickinson’s views occupied the middle ground between “states rights” advocates such as Robert Yates of New York and centralizers such as Alexander Hamilton and (at that time) Madison. Dickinson proposed the Constitution grant the new government a generous list of powers while reserving all other authority to the states. His constitutional plans dated June 18, 1787 contain prototypes of Article I, Section 8, the constitutional provision enumerating most congressional powers. His June 18 plans also feature prototypes of the Constitution’s Necessary and Proper Clause, which recognizes Congress’s authority to pass laws to carry other powers into execution.

After the convention adjourned, Dickinson continued to further the Constitution’s cause. He penned nine op-eds known as the Letters of Fabius. They responded to the opposition charge that the Constitution would promote aristocracy. During the convention Dickinson had predicted this charge and warned other delegates to forearm themselves against it.

Modern constitutional interpreters often rely on statements by Founders who occupied the extremes of the political spectrum. Advocates of big government typically resort to Hamilton (who played only a minor role at the convention) and advocates of small government rely on Jefferson (who wasn’t even there). This practice overlooks the moderates who actually pulled the Constitution together and secured its ratification. Of these, Dickinson was the most significant.

Forrest McDonald, America’s greatest 20th century constitutional historian, characterized Dickinson as the “the most underrated of all the founders.” Indeed, it was not until Dickinson’s own convention notes were rediscovered in the early 1980s that his contributions became better understood even among scholars.

This much is clear: John Dickinson deserves much more of our national gratitude than we have given him.

New Origination Clause Article Now Published

New Origination Clause Article Now Published

2009 RGN

The Harvard Journal of Law and Public Policy has now published my article on the Origination Clause. That’s the article documenting the research that found—contrary to all expectations—that the taxes in Obamacare were validly adopted.

But it also found that the regulations and appropriations in Obamacare were invalidly adopted.

You can read a summary of my findings here, and new evidence to support them (which just barely made it into the article) here.

You can find the article itself here.

Did Obamacare Violate the Constitution’s Origination Clause? No. . . and Yes

Did Obamacare Violate the Constitution’s Origination Clause? No. . . and Yes

Rob at the Univ. of Montana
Rob at the Univ. of Montana

Note: This a modified version of an article that appeared at The American Thinker.

Two years ago, the Supreme Court declared Obamacare’s penalty for failure to purchase conforming insurance to be a “tax.” Several plaintiffs subsequently sued in federal court arguing that the penalty is invalid for violating the Constitution’s Origination Clause. The Origination Clause says that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

The argument of the plaintiffs is that the Affordable Care Act and its taxes originated in the Senate, and that the tax/penalty is therefore void. (A 1990 Supreme Court case does strongly suggest that taxes originating in the Senate are void.) Thus far, those lawsuits have been unsuccessful, but they have provoked much commentary.

H.R. 3590 initially was a 6-page bill addressing (1) a federal income credit and (2) acceleration of certain estimated corporate income tax payments. The bill probably would have had little revenue effect, and may even have cost money. After H.R. 3590 passed the House, the Senate gutted it entirely and inserted 2,076 pages of Obamacare. The Senate voted for H.R. 3590 in that form, and transmitted it to the House, which likewise approved it.

As readers of this site know, I have my own political views, but I do my best to conduct objective research. And I insist on reporting my results whether I personally like them or not. In January, I began an independent research project to determine if the Origination Clause lawsuits have merit. The answer turns out to be both “yes” and “no.”

There are several key issues involved:

*    The Constitution’s Origination Clause applies only to “Bills for raising Revenue.” What does that phase mean?

*    Was the original H.R. 3590 a “Bill for raising Revenue?”

*    If it was, then the Senate had power only to “propose or concur with Amendments as on other Bills.” What is an “Amendment” as the Constitution uses the word? Was the complete replacement of the text of H.R. 3590 an “Amendment?”

The most commonly-used sources for recovering original constitutional meaning are the records of the 1787 Philadelphia Convention, the debates in the state ratifying conventions, and orations and publications (such as The Federalist) issued in advance of ratification. I found, as some other scholars have, that this material was insufficient to explain the scope and meaning of the Origination Clause.

I often have to venture well beyond the sources customarily used, and that was the case here. The origination rule came from the British Parliament, so I examined 50 years of parliamentary debates, as well as historical works on Parliament. I read 18th century treatises on the topic. I examined the legislative records of American colonies. I also examined the legislative records of the Continental, Confederation, and first Federal Congresses. Finally, I studied the origination rules in the newly-independent American states (14 of them, counting Vermont). This required perusing early state constitutions and legislative records. I disregarded materials generated too late to have influenced the founders.

I embodied my conclusions in a new, and rather lengthy, article. Here they are:

*    The constitutional phrase “Bill for raising Revenue” means a “tax” or a change in the tax code justifiable only under the Constitution’s Taxation Clause. (An exaction for regulating commerce is not a “Bill for raising Revenue.”)

*    H.R. 3590 in its initial form was a “Bill for raising Revenue” as the Constitution uses that term. It does not matter that H.R. 3590 in that form was revenue-neutral or revenue-negative. All changes to the tax code are within the origination rule.

*    H.R. 3590 properly arose in the House of Representatives.

*    The Senate had power to propose “amendments” of H.R. 3590. An amendment could take the form of a compete substitution. In fact, I found a fair number of examples of founding-era legislatures amending measures by complete substitution.

*    However, the constitutional word “Amendment” is limited to the subject matter of the original bill. The claim made by some writers that an “Amendment” could include an unrelated substitute turned out to be erroneous.

*   In other words, the power of an amending chamber over a revenue bill is less than the power of an originating chamber.

*   For constitutional purposes, all “Revenue” is the same subject matter, so it is irrelevant that the Senate’s revisions completely altered the nature of the taxes in H.R. 3590. Thus, because the Supreme Court has held the penalty to be a tax, the penalty was within the power of the Senate to add. Also valid are Obamacare’s other levies, such as the medical equipment tax.

*    On the other hand, because the underlying H.R. 3590 was limited to the subject of revenue and any “Amendment” must address the same subject as the underlying bill, the Senate’s addition of regulations and appropriations was not within its power.

I concluded that the Origination Clause lawsuits are attacking the wrong part of the law. The invalid portions of Obamacare under the Origination Clause are not its taxes, but its multitude of appropriations and its regulations on health care providers, employers, insurance companies, and others.

One final observation: In dismissing one of the origination suits late last month, the U.S. Court of Appeals for the D.C. Circuit held that the Obamacare tax was not a “Bill for raising Revenue” because it was passed for regulatory purposes. But the anterior constitutional test is whether the initial H.R. 3590 was a revenue bill—and it certainly was, according to the constitutional definition.

If the Court of Appeals were correct that the penalty is regulatory, then the penalty would be invalid as outside the Senate’s amendment power.

More importantly, however, the Supreme Court specifically held that congressional regulatory purposes were outside the scope of Congress’s other enumerated powers. Only the Taxation Clause supports the penalty, and it can be preserved only as  a tax.

The Results Are In: The Obamacare “Penalty” Didn’t Violate the Origination Clause, but Obamacare's Regulations Did

The Results Are In: The Obamacare “Penalty” Didn’t Violate the Origination Clause, but Obamacare's Regulations Did

Rob at James Madison's home in Virginia
Rob at James Madison's home in Virginia

Is the penalty for not buying insurance in the Affordable Care Act (ACA—Obamacare) unconstitutional as a “tax” that originated in the Senate?

Under the Constitution’s Origination Clause, the answer appears to be “no”—the Senate’s decision to add the penalty to the underlying bill was not a violation of that Clause. But under the same provision, most of the remainder of Obamacare may be unconstitutional.

As I reported in February, I have been involved in a multi-month study into the meaning of the Constitution’s Origination Clause and its implications for the ACA. The Origination Clause is the Constitution’s rule that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” My project was provoked by several federal lawsuits that claimed that because (1) the Supreme Court has held that the penalty for not buying insurance is a “tax,” and (2) the ACA law really originated in the Senate, therefore (3) the penalty was unconstitutionally adopted.

Here’s how the ACA became law: First, the House of Representatives passed H.R. 3590, a bill to expand a tax credit and force certain corporations to pay income taxes earlier than previously required. When H.R. 3590 went to the Senate, that body “amended” it to delete all six pages in the bill and insert the 2076-page ACA. This amendment “in the nature of a substitute” included not only the penalty for failing to purchase insurance, but a mass of other new taxes, appropriations, and regulations. The Senate then adopted the revised H.R. 3590 and sent it back to the House, which passed it.

Many people instinctively react against this procedure, but instinctive reaction is not the same as constitutional law. My job was to reconstruct the actual meaning of the Origination Clause, not expound what I would like it to mean. I therefore reviewed the debates over the Clause at the Constitutional Convention and in the ensuing ratification contest. I then turned to 18th century legislative vocabulary, procedures, and practice. This required reviewing 50 years of British parliamentary records; examining several decades of legislative records in 14 American colonies and states; consulting 18th century treatises and other writings; and reviewing the records of the Continental Congress (1774-81), the Confederation Congress (1781-89), and the First Federal Congress (1789-91). Here is what I learned:

* Any measure that alters the tax code to raise or reduce revenue is a “Bill for raising Revenue.” Another way to state it is that any law that can be justified only by the Taxation Clause (I-8-1) rather than by some other enumerated power is a “Bill for raising Revenue.” Thus, the original H.R. 3590 qualified as a “Bill for raising Revenue” as the Constitution uses the term, even though it was revenue-neutral or revenue-negative.

* The Constitution permits the Senate to adopt “Amendments” to “Bills for raising Revenue.”

* The Senate’s “Amendment” of H.R. 3590 was what is called a “complete substitute.” I could find no precedents for complete substitutes in British parliamentary practice, but they did exist in early American practice.

* The constitutional term “Amendments” is broad, but not unlimited in scope. As the Founders used the word, an “amendment” might make virtually any kind of alteration in the underlying bill, BUT it had to  address the same subject matter as the underlying bill. This rule also applied to amendments that, like H.R. 3590, were complete substitutes.

* For constitutional purposes, all tax/revenue measures are deemed to address the same subject as all other tax/revenue measures. So even an amendment (or substitute) that completely changes the taxes in the underlying bill is a valid amendment.

* Given the Supreme Court’s decision that the penalty for not buying insurance is a “tax” (a decision that was erroneous, but is now settled law) the Senate was within the rightful scope of its amendment power by adding the penalty and other taxes to the original H.R. 3950.

* However, the original H.R. 3590 addressed only taxes. The House could have added appropriations or regulations, but it did not. The Senate not only added the penalty/tax. It also inserted appropriations for various purposes and regulations on health care providers, employers, and insurance companies.

*The added regulations did NOT address the same subject (revenue) as the underlying H.R. 3590. It was therefore outside the amendment power of the Senate to add those regulations. From an originalist point of view, those regulations are void as never properly enacted, even though the House voted for them.

* This is true even though the Senate could have originated the regulations itself in a separate bill. When amending a revenue bill, the Senate does not have power as broad as it does when originating its own (non-revenue) bills.

* In addition, the Senate inserted appropriations into H.R. 3590. These probably was also outside the Senate’s amendment power.

A court constrained by the Supreme Court’s Obamacare decision, but otherwise applying the Constitution’s original meaning, should rule as follows: It should uphold the ACA’s taxes, including the penalty for not buying insurance, but strike down the regulations and appropriations in the law.

You can read the entire study here.