I have a piece up at Lawfare on former President Trump’s lawsuit to stop the National Archives from releasing his presidential records to the House committee investigating the January 6 attack on the Capitol.
Apropos of nothing, I am republishing (ie, stealing) this post by a House parliamentarian, Max Spitzer, who is the precedents editor in the House Parliamentarian’s Office (Motto: please do not send us Liz MacDonough’s hate mail).
On May 31, 1789, James Madison, then a member of the House of Representatives during the First Congress, wrote a letter to Edmund Randolph, who would soon after be appointed the nation’s first Attorney General. In that letter, Madison discussed the current work of the House, in particular the relatively slow pace of deliberations. He wrote: “[I]n every step the difficulties arising from novelty are severely experienced, and are an ample as well as just source of apology. Scarcely a day passes without some striking evidence of the delays and perplexities springing merely from the want of precedents. Time will be a full remedy for this evil…’’ [emphasis added]
The evil that Madison sought to avoid was inconsistency and arbitrariness in parliamentary practice. The new Congress was necessarily obligated to address many procedural questions as matters of first impression. Lacking established traditions, norms, or practices, the House of Representatives had to feel its way forward slowly, gradually developing a system of rules, procedures – and precedents. As Madison correctly surmised, time did provide a remedy. As questions of procedure arose and were resolved by the House, its parliamentary principles became fixed points of reference – precedents – that could be relied on in deciding new cases.
A contemporary of Madison’s, Thomas Jefferson, also recognized the value of precedents. In section 1.2 of his Manual of Parliamentary Practice (composed during his time as presiding officer of the Senate), Jefferson asserted that “[i]t is much more material that there should be a rule to go by than what the rule is; that there may be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members’’ (emphasis added). This quote again highlights a key advantage of having an established body of precedents to rely on: consistency, predictability, and reliability. Such a body of work also fulfills Jefferson’s vision of a “parliamentary branch of the law’’ (Jefferson letter to George Wythe, February 28, 1800).
The precedents of the House stand on the same foundation as our common law legal tradition, exemplified by the Latin maxim stare decisis (or “let the decision stand’’). In any legislative body, the same procedural points occur time and again, and there is little point in re-litigating questions that have already been thoroughly discussed. By adhering to prior procedural rulings, the House is able to achieve the consistency and predictability that Madison and Jefferson thought vital to the legislative process.
Another contemporary of Madison and Jefferson, John Adams, defined a republic as “a government of laws, and not of men” (To the Inhabitants of of the Colony of Massachusetts Bay, March 6, 1775). This succinct formulation deftly captures the connection between precedents and the rule of law. By adhering to its settled precedents, the House situates the decision-making of its members within the context of a body of laws. The caprice and captiousness decried by Jefferson is thus replaced by the stability and certainty of impersonal, impartial law.
The House or Representatives has a long tradition of cataloging and publishing its parliamentary precedents. The first comprehensive attempt to compile the precedents of the House occurred in 1907, with the publication of the Hinds’ Precedents series. This five-volume work covered the entire span from the First Congress in which Madison served to the beginning of the 20th century. A subsequent series of three volumes – Cannon’s Precedents – was published in 1936, and catalogued precedents established during the 1907-1936 period. Deschler’s Precedents began in the mid-1970s, with the last of its 18 volumes completed in 2013.
The latest series of precedents, entitled simply “Precedents of the United States House of Representatives,’’ saw its first volume published in 2017. The second volume has just been published, and is now available online. These new volumes continue the venerable tradition of grounding the parliamentary practice of the House in settled law. It is a legacy that would have pleased Madison, Jefferson, and Adams, and it is one of which all Americans should be proud.