[Deschler's Precedents, Contents]
[Preface]
[Precedents as Law]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page vi-vii]
 
                                PREFACE
 
Precedents as Law

    Asher Hinds noted in the introduction to his work on the precedents 
of the House that the great majority ``of the rules of all 
parliamentary bodies are unwritten law; they spring up by precedent and 
custom; these precedents and customs are this day the chief law of both 
Houses of Congress.''(11)
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    11. 1 Hinds' Precedents at p. iii.
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    On the theory that a government of laws is preferable to a 
government of men, the House has repeatedly recognized the importance 
of following its precedents and obeying its well-established procedural 
rules.(12) In looking to precedents to resolve a point of 
order or other procedural question, the House is applying a doctrine 
familiarly known to appellate courts as ``stare decisis,'' under which 
a judge in making a decision will look to earlier cases involving the 
same question of law. In the same way, the House adheres to settled 
rulings, and will not lightly disturb procedures which have been 
established by prior decision of the Chair. If the will of the majority 
is to be determined in an orderly and democratic way, questions must be 
resolved by established procedures, with all Members knowing what to 
expect.
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    12. As early as 1842, recognition was given in the House to the 
        value of precedents by Chairman George W. Hopkins, of Virginia, 
        in the course of a ruling made in the Committee of the Whole. 
        He said he felt constrained to follow precedents until they 
        were reversed, especially when settled by a solemn decision of 
        the House. 2 Hinds' Precedents Sec. 1317.
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    Thomas Jefferson believed that the Members' awareness of the rules 
was as important as the rationale of the rules themselves. He wrote: 
``And whether these forms be in all cases the most rational or not is 
really not of so great importance. It is much more material that there 
should be a rule to go by than what that 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.''(13)
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    13. House Rules and Manual Sec. 285 (1973).
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    Parliamentary law has come to be recognized as law, in the sense 
that it is binding on the assembly and its members except as it may be 
varied by the adoption by the membership of 

[[Page vii]]

special rules.(14) Thus, the precedents may be viewed as the 
``common law,'' so to speak, of the House, with much the same force and 
binding effect. Of course, the Speaker is not required to follow 
precedents blindly or mindlessly. In fact, the Speaker or Chairman may 
refuse to follow a precedent even though it is relevant to a pending 
question, where it is the only precedent on the point, and was not 
carefully reasoned.(15) In the main, however, parliamentary 
probity in the House is now looked upon as a matter of inherent right 
rather than a privilege subject to political exigencies, and as a 
science rather than an improvisation varied at the discretion of the 
Chair.(16)
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    14. Parliamentary law has been defined as ``the rules and usages of 
        Parliament or of deliberative bodies by which their procedure 
        is regulated.'' A rule of parliamentary law is defined as ``a 
        rule created and adopted by the legislative or deliberative 
        body it is intended to govern.'' Landes v State ex rel. Matson, 
        160 Ind. 479, 67 N.E. 189.
    15. 6 Cannon's Precedents Sec. 48.
    16. 6 Cannon's Precedents at p. vi.
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    Historically, the House has resisted efforts by a Speaker to act 
arbitrarily and in disregard of its precedents and procedures. In the 
last years of the 19th century, the powers of the Speaker grew to a 
point where they approached absolutism. Entrenched behind the power to 
appoint committees, and with authority to extend or refuse control of 
the floor, the office of Speaker came to be regarded by some as more 
powerful even than that of the President of the United States. The 
reaction of the membership of the House against this ascendancy of the 
powers of the Speaker came quickly. ``Almost overnight'' wrote Clarence 
Cannon, ``the slowly accumulated prerogatives of the great office 
crumbled. Within three short years (1909-1911) a bipartisan revolution 
swept away every vestige of extrajudicial authority.'' The Speaker's 
power of recognition was circumscribed; the motion to recommit was 
restored to the minority, the election of committees was lodged in the 
House, the reference of bills to committees was standardized, and the 
determination of legislative policies and programs was delegated to 
party caucuses. This wave of reform culminated in the wresting of 
control from the Speaker, with ultimate authority passing from the 
Chair to the membership.(17) This relationship between the 
Members and the Speaker has been more than maintained since the turn of 
the century. Today, the office of the Speaker is judicial in character. 
The decisions of the Speaker are judicial and mediatory rather than 
polemic and partisan.
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    17. 6 Cannon's Precedents at pp. vi, vii.
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