The Journal Clause

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.

—C. Towner French

Introduction

In the English Parliament, the practice of keeping a journal of legislative activities dates from the thirteenth century, and the tradition carried over to the colonies and to the states. The Journal Clause reflects this long-standing practice and has four primary elements: (i) The House and Senate are required to keep a journal; (ii) they are required to publish the journal only from “time to time”—a period not defined in the Constitution; (iii) the House and Senate have nearly complete discretion as to whether to hold sessions in secret; and (iv) with a one-fifth vote, the “Yeas and Nays” on “any question” shall be published in the journal. During the Constitutional Convention and ratification debates, only the second and third elements caused debate. Critics warned that Congress could shroud its proceedings in secret and would rarely publish the journal. To this day, some congressional proceedings are still held as closed sessions—that is, closed to the public, and only open to members and their staff. But over time, more sessions became open to the public. In the early years of the Republic, very little information was entered into the journal. During the nineteenth century, private records provided accounts of congressional proceedings in more depth. Following the Civil War, however, Congress began to publish the official Congressional Record. And in modern times, members of Congress can “revise” remarks in the Record, and even enter speeches that were never actually delivered on the floor.

History Before 1787

The Parliament Rolls of Medieval England were compiled as far back as the thirteenth century, and the official House of Lords Journal and House of Commons Journal date from the early sixteenth century.¹ Parliament’s journals historically contained a very basic record of proceedings that summarized the activities of each house: bills proposed and passed, votes counted, messages to and from each house, and communications with the Crown.²

During the colonial period, parliamentary officers were Crown officers. As a result, the Executive had power to control the Journal Clerk and the Journal, which was the official record of parliamentary proceedings. In the thirteen colonies, local lower houses attempted to appoint and control their own journals and journal clerks, as well as to exclude royal governors from the floor during debate.³ It was widely believed that only in this fashion could freedom of speech in debate in colonial assemblies be maintained without interference by the monarch and colonial governors. This history also explains in part why parliamentary houses did not report debate and did not want it reported.⁴ Members feared punishment or reprisals not by voters but by royal officers.

Around 1771, some members of Parliament sought to expand the scope of the journals to include a record of the actual debates.⁵ Parliament formally acceded to this approach in 1803 with the introduction of Hansard, or the Official Report.⁶

The Articles of Confederation required Congress “to publish the Journal of their proceedings monthly.”⁷ However, there was an exception for “such parts thereof relating to treaties, alliances, or military operations, as in their judgment require secrecy,” and “any delegate” could request the entering into the journal of the “the yeas and nays of the delegates of each State.” Delegates could also request a “transcript” of the Journal, which would be laid “before the legislatures of the several states.”

The Constitutional Convention

By 1787, the practice of keeping and publishing a journal of the legislature’s activities was well-entrenched and uncontroversial. Two drafts from the Committee of Detail included a version of the Journal Clause.⁸ On August 6, the Committee delivered this text to the Convention: “The House of Representatives, and the Senate, when it shall be acting in a legislative capacity, shall keep a Journal of their proceedings, and shall, from time to time, publish them: and the yeas and nays of the members of each House, on any question, shall[,] at the desire of one-fifth part of the members present, be entered on the journal.”⁹

The delegates debated this issue on August 10.¹⁰ Gouverneur Morris of Pennsylvania thought the one-fifth requirement would “disadvantage” the “small States” and argued that “any individual ought to be authorized to call for [the yeas and nays].”¹¹ Roger Sherman of Connecticut preferred to “strike out the yeas & nays altogether,” arguing that “they never have done any good” because members do not list the “reasons” for their votes. Nathaniel Gorham pointed to “abuses” in his home state of Massachusetts where the “yeas & nays” were “misleading the people who never know the reasons determining the votes.”¹² Morris’s motion was rejected unanimously. Edmund Randolph of Virginia would have allowed “any member of the Senate . . . to enter his dissent” on a vote; Morris and James Wilson of Pennsylvania countered that the majority would also have a right to record their votes, and the Journal would be filled “like the records of a Court, with replications [and] rejoinders.”¹³ This motion was defeated. Elbridge Gerry of Massachusetts proposed an exception: The proceedings would be published “except such parts thereof as in their judgment require secrecy.”¹⁴

The following day, the delegates returned to the clause. Gerry and Sherman proposed that the House and Senate should not be required to publish matters that “related to treaties & military operations.”¹⁵ They would have given the House “discretion in such cases.” This motion was defeated. Oliver Ellsworth of Connecticut would have struck the Journal Clause altogether. He thought “[t]he Legislature will not fail to publish their proceedings from time to time,” and if the journal were “improperly omitted,” the people would “call for it.”¹⁶ Wilson defended the clause. He thought “[t]he people have a right to know what their Agents are doing or have done, and it should not be in the option of the Legislature to conceal their proceedings.”¹⁷ Ellsworth’s proposal failed, but the secrecy requirement passed by a vote of six to four with one state divided.

The Committee of Style made some slight edits.¹⁸ On September 14, Gerry and George Mason of Virginia argued that the secrecy exception should be limited to the Senate, but “[i]t was intimated on the other side that cases might arise where secrecy might be necessary in both Houses.” For example, the House might vote on “Measures preparatory to a declaration of war.”¹⁹ This proposal was defeated, and no further changes were made.²⁰

The Journal Clause did not require that the content of debates be recorded. The Framers presumably only intended that the basic proceedings and rules be recorded as had been the previous British practice. However, the Journal Clause did represent a significant break from British practice.²¹ Under the Constitution, the executive branch was excluded from exercising power over the journal, and the Incompatibility Clause barred appointed executive branch officials from being a member of either house. (See Essay No. 91.) However, this separation of powers meant that the Journal was “captured” by the presiding officers and the majorities in each house, and whoever controls the journal can control the house’s agenda.

The Ratification Debates

At the Virginia ratifying convention, the secrecy provision proved controversial. Patrick Henry charged that “[t]he liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”²² Mason said the clause “enables [Congress] to keep the negotiations about treaties secret” and added that “under this veil they may conceal any thing and every thing.”²³ Mason contrasted the Journal Clause with the Articles of Confederation, which required that the journal be published monthly and specified that only certain matters could be excluded for secrecy. By contrast, under the Constitution, Congress “may conceal what they please.”²⁴ James Madison assured his fellow Virginians that the discretion was only designed to allow flexibility for the purposes of accuracy and convenience.²⁵

In the North Carolina ratifying convention, William R. Davie explained that the phrase “from time to time” meant that it was the “sense of the Convention” that the journal would be “published at the end of every session.”²⁶ However, he added, “there could be no doubt of their publishing [journals] as often as it would be convenient and proper, and that [Congress] would conceal nothing but what it would be unsafe to publish.”²⁷

Early Practice

During the early years of the Republic, the congressional journal primarily contained a very basic record of proceedings. It generally included only a list of members’ rules, votes, and the titles of bills and resolutions that were introduced but did not normally include the text of those bills or resolutions.

Professor Seth Barrett Tillman wrote that in the antebellum period, “legislative journals functioned much like (contemporaneous and modern) court dockets—journals reported a very limited range of information and events.”²⁸ According to Tillman, “it is not surprising that one gleans very little substantive history from these [j]ournal entries [from the Early Republic].” Rather, he concluded, the “journal[s] simply do[] not meaningfully report [on] the debate, arguments, or evidence [in election contests] put forward by the members. . . .”

Justice Joseph Story observed that “[t]he object of the whole clause is to ensure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents.”29 Given the fact that early journals did not include the content of debates, their ability to foster popular understanding and accountability was limited. However, attendance was recorded, and votes related to party agendas and other divisive issues could be recorded at the discretion of any one-fifth minority. These standards provided at least some public accountability.

Early Congresses also chose to hold some proceedings in secret. The Senate held its legislative sessions in secret until 1794.²⁹ Senate executive sessions to consider nominations and treaties were also closed to the public.31 However, since the War of 1812, both houses have kept most of their proceedings open to the public. The U.S. Supreme Court ruled that each house has complete discretion with respect to which proceedings will be made publicly available in the journal.³⁰

Published Journals

From the early decades of the Republic, newspaper reporters have attempted to record or summarize the content of bills and debates for their publications.³¹ In 1834, Joseph Gales, Jr., and William Seaton started publishing the Annals of Congress. Its formal title was The Debates and Proceedings in the Congress of the United States. Part of the Annals consisted of reports of the First Congress from Thomas Lloyd, a shorthand writer whose record of debates in The Congressional Register has been considered incomplete and unreliable.³² Unfortunately, Lloyd was sometimes intoxicated when he took notes, and a later comparison of his notes to what he published in The Congressional Register shows “only slight resemblance” between the two.³³ The Annals also compiled selected paraphrased remarks of members in their speeches and debates gathered from newspaper accounts.

The Annals project took twenty-two years to complete, and, when finished, it covered the years from 1789 to 1824. Congress began to underwrite the project in 1849. Meanwhile, in 1824, Gales and Seaton attempted to record contemporaneous debates and publish them in the Register of the Debates in Congress. Both publications reported members’ remarks in the third person.³⁴ The Register ceased publication in 1837.³⁵

A competitive private publication, The Congressional Globe, began in 1833. It was published by Francis Blair, Sr., and John C. Rives. At first, The Globe did not attempt to transcribe debates verbatim and only included summaries. Later, The Globe attempted to record members’ statements verbatim and in the first person. However, partisanship marred the objectivity of the editing of both the Annals of Congress and The Globe: Gales and Seaton were associated with the Whigs, and Blair and Rives were affiliated with the Democrats during the 1830s and early 1840s.³⁶ The Globe ceased publication in 1873.³⁷

In 1873, Congress began to publish the Congressional Record.³⁸ The official Record reports the debates on the floor of each house nearly verbatim and can also include undelivered remarks and documents.³⁹

Modern Practice

In modern times, the Senate has been more likely than the House to hold secret sessions. For example, the Senate continued to hold certain executive sessions in secrecy until 1929 and did not open most of its committee sessions to the public until the 1970s. Even today, many committee sessions and business meetings concerning appropriations for national defense are held in secret. The Senate also holds secret sessions during debates over classified information, treaties, and national security. Moreover, during impeachment trials, the Senators deliberate in closed session.⁴⁰

There is a somewhat controversial practice in Congress known as “revise privilege.” This privilege allows members to revise their speeches (in form or substance) and even to add a speech to the Congressional Record that was never actually delivered on the floor. This practice was challenged in the 1980s, but the D.C. Circuit held that the rules allowing a member of Congress to edit his remarks before publication are unreviewable by the courts.⁴¹

Open Questions

• In 1834, the Senate censured President Andrew Jackson. In 1837, the Senate retrieved the 1834 Senate Journal and proceeded to expunge the prior Senate’s censure of President Jackson.⁴² What was the effect of this expungement?

1. C. Given-Wilson et al., The Parliament Rolls of Medieval England, 1275–1501 (2005). ↩︎
2. Elizabeth Read Foster, Procedure in the House of Lords During the Early Stuart Period, 5 J. of Brit. Stud. 56, 56–73 (1966). ↩︎
3. Mary Patterson Clarke, Parliamentary Privilege in the American Colonies 231–32 (1971); Jack P. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies, 1689–1776, at 205, 207–12 (1963). ↩︎
4. Greene, supra at 213–14. ↩︎
5. Robin Eagles, John Wilkes, Parliament and the Freedom of the Press 1771–2021, UK Parliament, Parliamentary Archives: Inside the Act Room Blog (Mar. 29, 2021), https://perma.cc/7S24-KT4A. ↩︎
6. Hansard (Parliamentary Debates), UK Parliament, Parliamentary Archives, https://perma.cc/5RBN-49P6. ↩︎
7. Articles of Confederation, art. IX, § 7. ↩︎
8. 2 Farrand’s 156, 166. ↩︎
9. Id. at 180. ↩︎
10. Id. at 254–56. ↩︎
11. Id. at 255. ↩︎
12. Id. ↩︎
13. Id. ↩︎
14. Id. at 256. ↩︎
15. Id. at 260. ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Id. at 568, 592. ↩︎
19. Id. at 613. ↩︎
20. Id. at 653. ↩︎
21. Seth Barrett Tillman, A Note on the Constitution’s Journal Clause, New Reform Club Blog (Oct. 12, 2023), https://perma.cc/Q66M-CUEP. ↩︎
22. 3 Elliot’s 170, 315, 396–98. ↩︎
23. Id. at 404. ↩︎
24. Id. ↩︎
25. Id. at 460. ↩︎
26. 3 Elliot’s 72. ↩︎
27. Id. ↩︎
28. Seth Barrett Tillman, A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources, 98 N.C. Hist. Rev. 1, 6–7 (2021). ↩︎
29. Christopher M. Davis, Cong. Rsrch. Serv., R42106, Secret Sessions of the House and Senate: Authority, Confidentiality, and Frequency 3 n.11 (2014), https://perma.cc/NXV8-72G4. ↩︎
30. Marshall Field & Co. v. Clark, 143 U.S. 649, 671 (1892). ↩︎
31. Nicholas Handler, Rediscovering the Journal Clause: The Lost History of Legislative Constitutional Interpretation, 21 J. of Const. L. 1219, 1268 n.270 (2019). ↩︎
32. Joseph Gales & William Seaton, The Debates and Proceedings in the Congress of the United States (1834); Historical Soc’y of Pa., Pennsylvania and the Federal Constitution, 1787–1788, at 14 (1888). ↩︎
33. Marion Tinling, Thomas Lloyd’s Reports of the First Federal Congress, 18 Wm. & Mary Q. 519, 532, 536 (1961); James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1, 38 (1986). ↩︎
34. Richard J. McKinney, An Overview of the Congressional Record and Its Predecessor Publications: A Research Guide (May 2020), https://perma.cc/8HBU-W3KT. ↩︎
35. Register of Debates, Library of Congress, A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates 1774 to 1875, https://perma.cc/G5EF-X6SZ. ↩︎
36. William E. Ames, The National Intelligencer: Washington’s Leading Political Newspaper, 66 Records of Columbia Hist. Soc’y of Wash., D.C., 71, 71–83 (1966). ↩︎
37. John J. Patrick et al., The Oxford Guide to the United States Government 143 (2001). ↩︎
38. Id. ↩︎
39. Michelle M. Springer, The Congressional Record: “Substantially a Verbatim Report?”, 13 Gov’t Pub. Rev. 371, 371–78 (1986). ↩︎
40. Cong. Rsrch. Serv., supra at 3. ↩︎
41. Gregg v. Barrett, 771 F.2d 539, 547–49 (D.C. Cir. 1985). ↩︎
42. Senate Reverses a Presidential Censure, U.S. Senate, About the Senate, https://perma.cc/T56K-YGXH. ↩︎