"There is always a philosophy for lack of courage."—Albert Camus

Sunday, October 16, 2016

The Journals Clause

This is a cross-post from: Seth Barrett Tillman, The Journals Clause, The Originalism Blog (Oct. 16, 2016, 6:56 AM), http://tinyurl.com/jy596mt

Perhaps you might know that I have had occasion to write on the Constitution’s usage in regard to office and officer. Recently, I let it be known that I hoped other scholars might allow me to pass to them the intellectual baton, and we would see where they go with it. So I was pleased (albeit surprised) when an academic wrote me:

[Y]ou mentioned in your response that you’d encourage students looking for research projects to dive into the office/officer debates. Quite a few of the new members of the [law review] are indeed looking for research projects and some have asked for advice. Do you have any specific points of research or questions you’d recommend? I understand if you’re hoarding all of the good ones for yourself, but thought I would ask.

What struck me about this question was: (1) the somewhat disappointing realization that no one had asked me this question before; and (2) the writer’s expectation that I (and perhaps others) might be hoarding “good” ideas.

So it got me thinking: Do I “hoard” ideas? I don’t think I do. But that’s a low bar. The test ought to be: Do I actively promote interesting ideas?

So in the interest of promoting interesting ideas, I am going to put one forward here.

I have had the itch to write a paper on the Journals Clause for many years. But it was always near the bottom of the list, and if it began to rise to the top, some intervening event or publication by another required (I thought) my more immediate attention. After all these years, I would still like to find time to write that paper, but if the past is prelude, I expect I will not find that time (particularly, as I am increasingly pressed to write more on Irish law).

So what is the idea? The Journals Clause (a/k/a Article I, Section 5, Clause 3) states:

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

The key word in the clause is “keep”. The standard view is that it means “maintain” or something akin to “maintain”. There is not a lot of post-ratification discussion of the clause—except for the debate on the Senate Expunging Resolution from circa 1837. As to preratification, the consensus view is that the clause was grounded in norms relating to accountability & responsibility, and publicity & transparency. See, e.g., David F. Forte, House Journal, in The Heritage Guide to the Constitution (2d ed. 2014), http://www.heritage.org/constitution#!/articles/1/essays/23/house-journal. That’s the standard narrative.

The problem with the standard narrative’s interpretation of the Journals Clause (as with so many other constitutional provisions) is that it is a very poor fit against the actual language and original meaning of the clause. To see that, you first have to understand what a parliamentary journal is. A parliamentary journal is the legislative equivalent of a judicial docket: it is a barebones record of motion practice before the body, and it records decisions (i.e., legislative orders) taken by the body. But just as judicial orders do not customarily record judicial reasoning (in extensio), parliamentary journals do not customarily record debate (in extensio). This functional equivalence between parliamentary journals and court dockets should not be surprising: the 18th century houses of the British parliament were courts of record, as were many of the colonial parliamentary houses. See Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) (explaining long-established Connecticut practices). As to achieving some semblance of political responsibility by publishing the “Yeas and Nays,” that could be undone by simple majority action—i.e., by committing the contested portions of the journal to “secrecy”.

Let me now suggest a wholly different view of the clause. It is a view I am attracted to, but I admit I cannot prove it (at least not today, while I am in Ireland). Still I suspect a dedicated researcher might find materials supporting my thesis. But a note of caution: there are some risks here too. If my position is entirely wrong, you could spend a lot of time, and find nothing for all your efforts. And that will not make much of a paper.

I suggest “keep” does not mean maintain. Perhaps “keep” means “control,” “own,” or “possess”. Without the Journals Clause, it might be argued that a House or Senate journal is property of the United States to which the Executive Branch might lay claim, particularly between breaks between biannual Congresses and also during (proper parliamentary) recesses between sessions (as opposed to mere adjournments within a single parliamentary session). The effect of the Journals Clause is to vest each house of Congress with something akin to a property right and also to command each house to “possess” its Journal, not against the public, but against the President and his minions. In a sense, the Journals Clause is an analogue to the House Officers Clause and Senate Officers Clause, which exclude the President from participating in the selection of House and Senate officers. See Article I, Section 2, Clause 5 (House Officers Clause); Article I, Section 3, Clause 5 (Senate Officers Clause). The irony here is rich. The ever-expanding and progressive chronological additions to each house’s official journal (along with other congressional records) have been regularly archived with the National Archives and Records Administration—which is exactly what Congress was commanded not to do (assuming my hypothesis is correct).

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So if you are a law student writing a research paper or student note, a student or fellow in some non-law programme, an academic, or just an aficionado of ideas, and if you should use this idea … then cite my Originalsm Blog post, for having had the germ of the original idea, in a footnote (and, perhaps, in the main text); send me a preliminary draft and a reprint when finalized; post your paper on SSRN and BEPRESS; and when next you are in Dublin, you are buying.

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post: Seth Barrett Tillman, Modern Scholars Who and Prior Courts which Understood Ex parte Merryman, The New Reform Club (Oct. 9, 2016, 4:59 AM). [Here


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