Federal Desk BookConstitution Annotated

Article I, Section 5, Clause 3 — Records

Article I, Section 5, Clause 3

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.

ArtI.S5.C3.1 Requirement that Congress Keep a Journal

Justice Joseph Story explained that the object of the requirement in Article I, Section 5, Clause 3, that the House of Representatives and Senate each keep of “a Journal of its Proceedings” is “to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents.”1 In his Commentaries on the Constitution of the United States, Justice Story noted that the Journal requirement prevents secrecy and the “intrigue and cabal” that secrecy facilitates.2 Justice Story also noted that the Journal requirement aids civic understanding and confidence in the government.3 Finally, he noted that public interest in and knowledge of Congress’s proceedings serves as a bellwether of the Republic’s health. He stated:

So long as known and open responsibility is valuable as a check, or an incentive among

the representatives of a free people, so long a journal of their proceedings, and their

votes, published in the face of the world, will continue to enjoy public favour, and be

demanded by public opinion. When the people become indifferent to the acts of their

representatives, they will have ceased to take much interest in the preservation of

their liberties. When the journals shall excite no public interest, it will not be a matter

of surprise, if the constitution itself is silently forgotten, or deliberately violated.4

When the Journal of either House is put in evidence for the purpose of determining whether the yeas and nays were ordered, and what the vote was on any particular question, the Journal must be presumed to show the truth, and a statement therein that a quorum was present, though not disclosed by the yeas and nays, is final.5 But when an enrolled bill, which has been signed by the Speaker of the House and by the President of the Senate, in open session receives the approval of the President and is deposited in the Department of State, its authentication as a bill that has passed Congress is complete and unimpeachable, and it is not competent to show from the Journals of either House that an act so authenticated, approved, and deposited, in fact omitted one section actually passed by both Houses of Congress.6

Notes
  1. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 838 (1833). See also Field v. Clark, 143 U.S. 649, 670 (1892). ↩
  2. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 839 (1833) (“Intrigue and combination are more commonly found connected with secret sessions than with public debates, with the workings of the ballot box, than with the manliness of viva voce voting.”). ↩
  3. Id. § 838 (“The public mind is enlightened by an attentive examination of the public measures; patriotism, and integrity, and wisdom obtain their due reward; and votes are ascertained, not by vague conjecture, but by positive facts.”). ↩
  4. Id. § 839. ↩
  5. United States v. Ballin, 144 U.S. 1, 4 (1892). See also NLRB v. Canning, 573 U.S. 513, 551–52 (2014) (“[W]hen the Journal of the Senate indicates that a quorum was present, under a valid Senate rule, at the time the Senate passed a bill, we will not consider an argument that a quorum was not, in fact, present. The Constitution requires the Senate to keep its Journal . . . and ‘if reference may be had to’ it, ‘it must be assumed to speak the truth.’”) (quoting Ballin, 144 U.S. at 4). ↩
  6. Field v. Clark, 143 U.S. 649 (1892); Flint v. Stone Tracy Co., 220 U.S. 107, 143 (1911). See the dispute in the Court with regard to the application of Field in an origination clause dispute. United States v. Munoz-Flores, 495 U.S. 385, 391 n.4 (1990), and id. at 408 (Scalia, J., concurring). A parallel rule holds in the case of a duly authenticated official notice to the Secretary of State that a state legislature has ratified a proposed amendment to the Constitution. Leser v. Garnett, 258 U.S. 130, 137 (1922); see also Coleman v. Miller, 307 U.S. 433 (1939). ↩