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).
_____
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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