Tomer Stein (University of Tennessee College of Law) & Shelby Ponton (Stetson University, College of Law, Students) have posted The Constitutional Meaning of Financial Terms (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:
The Constitution has sixty-three financial terms. These financial terms include, for instance, “compensation,” “expenditures,” “debt,” “coin,” “revenue,” “securities,” and “bankruptcies”—all of which determine the elementary building blocks of our governmental makeup. When the Supreme Court interprets the meaning of these financial terms, it does so in isolation and without a consistent framework. This Article proposes a unified framework for the interpretation of financial terms in the Constitution, comprising of two fundamental canons of construction.
First, this Article proposes that all financial terms in the Constitution should be interpreted with fiscal and monetary neutrality—interpreting financial terms in a way that does not favor one kind of economic policy over another. The Supreme Court is not the right institution to manage the economy, as it lacks the expertise to do so. Moreover, fiscal and monetary policy are governmental objects that were intended to be governed by, and are best left to, the political process. The Supreme Court should thus interpret all financial terms in the Constitution in a manner that will leave fiscal and monetary policy open for implementation by either the legislative and executive branches, or the various states, as appropriate. Second, this Article proposes that if the Supreme Court is able to avoid deciding the meaning of a constitutional financial term, and, instead, decide the relevant case on another basis (such as either federal or state law, or procedural grounds), it should do so. In other words, the Supreme Court should invoke the constitutional avoidance doctrine when facing a constitutional financial term.
Together, fiscal and monetary neutrality, coupled with the constitutional avoidance doctrine, provides a consistent framework for the Supreme Court’s treatment of financial terms that serves both the intended meaning of these terms and their continued utility in today’s modern economy.
And from the article:
To show that the neutrality and avoidance principles advocated for in this Article are compatible with such an approach, it is important to show that doing so would not necessitate a deviation from such historic accounts of meaning. Indeed, they do not. To illustrate this point, imagine, for argument’s sake, that the Framers of the Constitution never intended the word “income” to include any money derived from selling sexually explicit content on the internet. Imagine further that this is the case because the Framers never contemplated that such activities would ever be permitted, let alone be utilized for commercial purposes. If such a content provider refused to pay taxes to the federal government on the grounds that any money received from this activity is not “income” under the Sixteenth Amendment, how should the court resolve this dispute? Assuming that Congress’s position is that such money does count as income, would it be incompatible with originalism for the Court to not intervene with the tax collection? Enter underenforcement. Even if the Court agreed with the content provider’s position, the Court may refuse to enforce this meaning of the Constitution. This is because it is one thing for a court to determine the legal meaning of the term, and it is another thing for the court to also take the position that it has the power or right to enforce that meaning. In fact, underenforcement is common in the constitutional practice of the Supreme Court. For instance, in Fourteenth Amendment cases, the Court would, at times, underenforce the meaning of the Amendment in order to encourage Congress or the various States to collaboratively participate in the protection of individual rights.Following the same approach, utilizing fiscal and monetary neutrality would never require incompatibility with originalism.
I was confused by this passage. First, the authors seem to be assuming that "originalism" focuses on the original intent (or constitutional preferences) of the Framers. But this version of originalism is now far outside the mainstream of contemporary originalist theory–both on the courts and in the academy. Contemporary originalism focuses on the original public meaning of the constitutional text–and rejects that idea that originalism should ask "What would James Madison do?." If I understand the hypothetical correctly, it posits that the framers would have believed that "incomes, from whatever source derived" excludes income derived from sexually explicit content on the Internet. That argument assumes that the original meaning consists of the constitutional preferences of the framers–but this is exactly the idea that originalists have rejected since the mid-1980s. This seems like an absolutely clear case from a public meaning perspective. The original public meaning of the key phrase "incomes, from whatever source derived" is, on its face, inconsistent with the argument the authors make.
Second, the authors assume that a refusal to enforce the clear original public meaning of the constitutional text is consistent with public meaning originalism. But my understanding that is that almost all originalists reject this position. Many originalist do believe that the original understanding of "judicial power" is consistent with deference to Congress in cases where the original public meaning of the text is not clear, but in the case of the phrase "incomes, from whatever source derived," the meaning does seem to be quite clear, Professors Lee, Phillips, Egbert, and I have demonstrated in Favicon for papers.ssrn.com Corpus Linguistics and the Original Public Meaning of the Sixteenth Amendment.
The authors cite Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced, Constitutional Norms, 91 HARV. L. REV. 1212 (1978), for the proposition that "n Fourteenth Amendment cases, the Court would, at times, underenforce the meaning of the Amendment in order to encourage Congress or the various States to collaboratively participate in the protection of individual rights," but Sager's article does not employ public meaning originalism to reach that conclusion.
More generally, the approach that the authors take to the meaning of financial terms in the Constitution as a whole is obviously inconsistent with originalism.