A Note on the Constitution’s Journal Clause

 

The Constitution’s Journal Clause and congressional practice are, in significant ways, a break from British practice circa 1787. In Britain, parliamentary officers were crown officers—albeit, later such officers became controlled by the government and its ministers. In other words, the Executive had power to control Parliament’s Journal Clerk and the Journal: the official record of parliamentary proceedings. During the colonial period, both in the thirteen colonies and in several of the other British New World colonies, the struggle by popular government against arbitrary crown government was waged on many fronts. That included famous conflicts over free speech in popular assemblies, but it also included less well-known conflicts involving parliamentary privilege, e.g., an assembly’s efforts to control its own journal, its journal clerk, and to exclude royal governors and their placemen from the floor of the house during debate. See generally Mary Patterson Clarke, Parliamentary Privilege in the American Colonies (1943). This history also explains in part why parliamentary houses did not report debate and why they did not want it reported. Its members feared punishment or reprisals, not by voters, but by royal officers. Here, in the United States, under the Constitution of 1788, with its “hard” separation of powers under the Incompatibility Clause, the Executive was excluded from any power over the Journal. But that means the Journal is “captured” by each house’s presiding officer and the majority in each such house.

 

And why is the Journal important–whether or not it records debate? There is a tendency to think of the Journal as a or, merely as, a physical thing—a stale paper or electronic record. But the better way of thinking about the Journal is that it is a legal concept expressing a series of constitutional and historical conventions. In other words, the “Journal” is akin to the “Treasury.” The latter might be thought of as a physical bank account at a particular or group of locations. But the better way to understand it is that the “Treasury” refers to the entire legal complex of debts and other financial obligations owed to and by the United States. The “Journal” is a similar concept. The Journal reflects votes of each house—that includes votes on the timing of meetings and the agenda. If you control the Journal and the timing of meetings, then, you control the house’s agenda.

 

Seth Barrett Tillman, ‘A Note on the Constitution’s Journal Clause,’ New Reform Club (Oct. 12, 2023, 9:30 AM), <https://reformclub.blogspot.com/2023/10/a-note-on-constitutions-journal-clause.html>;