Presidential Authority to Order the Removal of the Original

Engrossed Constitution From the Library of Congress

The custody of the original engrossed Constitution of the United States is now vested by statute in the

Library of Congress, and no statute authorizes the President to interfere with that custody or to

prescribe rules governing it. Therefore, an executive order authorizing the removal of the Constitu-

tion from the Library of Congress could neither compel such removal nor make it legal.

March 2, 1939

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

The Congress undoubtedly has authority to provide by statute for the custody of

the Constitution (U.S. Const. art. IV, § 3, cl. 2), and apparently it has done so.

The Continental Congress on March 22, 1777, created the office of Secretary of

Congress and committed to the incumbent the custody of all journals, papers, and

documents of the Congress. 7 Journals of the Continental Congress 193–94.

The original engrossed Constitution of the United States was received by the

Continental Congress and passed into the custody of its Secretary on September

28, 1787. 33 id. at 549.

After the Constitution was ratified, the Congress by Act of July 27, 1789 (ch. 4,

§ 1, 1 Stat. 28) created the Department of Foreign Affairs, with a secretary for the

Department. The Act of September 15, 1789 changed the name of this Department

to the Department of State and added to its duties, providing in part:

[T]he said Secretary shall forthwith after his appointment be entitled

to have the custody and charge of the said seal of the United States,

and also of all books, records and papers, remaining in the office of

the late Secretary of the United States in Congress assembled . . . .

Id. ch. 14, § 7, 1 Stat. 68, 69.

Section 203 of the Revised Statutes (2d ed. 1878) provides:

The Secretary of State shall have the custody and charge of the seal

of the United States, and of the seal of the Department of State, and

of all the books, records, papers, furniture, fixtures, and other proper-

ty now remaining in and appertaining to the Department, or hereafter

acquired for it.

18 Stat. pt. 1, at 32 (repl. vol.).

Under the above statute the Constitution for many years remained in the custo-

dy of the Secretary of State. Charles Warren, in his work The Making of the

Constitution, says:

Supplemental Opinions of the Office of Legal Counsel in Volume 1

The original document remained in the possession of the Secretary

of Congress, Charles Thomson, until the new Government was es-

tablished. On July 24, 1789, President Washington directed Thom-

son to deliver the “books, records and papers of the late Congress” to

Roger Alden, late Deputy Secretary of Congress, to take charge of

them in New York. The First Congress, by Act of September 15,

1789, directed that “all books, records, and papers remaining in the

Office of the late Secretary of the United States in Congress assem-

bled” be placed in the charge and custody of the new State Depart-

ment. Alden, however, remained in custody of all these papers until

after Thomas Jefferson assumed the duties of the office of Secretary

of State, which he accepted on February 14, 1790. When the Gov-

ernment moved from New York to Philadelphia, in 1791, the Consti-

tution was taken back to its place of origin; and it followed the Gov-

ernment and the Secretary of State to Washington, in 1800. In 1814,

when the British occupied Washington, the Declaration of Independ-

ence and other papers in the State Department were taken out to

Leesburg, Virginia, and it is probable that the Constitution was one

of these papers. They were returned when President Madison re-

occupied Washington.

Id. at 784–85 (1828) (footnotes omitted).

The Act of February 25, 1903, entitled “An Act making appropriations for the

legislative, executive, and judicial expenses of the Government for the fiscal year

ending June 30, 1904, and for other purposes,” under the heading “Increase of

Library of Congress,” provides in part:

The head of any Executive department or bureau or any commission

of the Government is hereby authorized from time to time to turn

over to the Librarian of Congress, for the use of the Library of Con-

gress, any books, maps, or other material in the library of the

department, bureau, or commission no longer needed for its use, and

in the judgment of the Librarian of Congress appropriate to the uses

of the Library of Congress.

Pub. L. No. 57-115, 32 Stat. 854, 865.

On September 29, 1921, President Harding issued Executive Order 3554,

which reads:

The original engrossed Declaration of Independence and the orig-

inal engrossed Constitution of the United States, now in the Depart-

ment of State, are, by authority provided by the Act of Congress en-

titled “An Act making appropriations for the legislative, executive

and judicial expenses of the Government for the fiscal year ending

Presidential Authority to Order Removal of Constitution from Library of Congress

June 30, 1904, and for other purposes,” approved February 25, 1903,

hereby ordered to be transferred from the Department of State to the

custody of the Library of Congress, to be there preserved and exhib-

ited under such rules and regulations as may from time to time be

prescribed by the Librarian of Congress.

This Order is issued at the request of the Secretary of State, who

has no suitable place for the exhibition of these muniments and

whose building is believed to be not as safe a depository as the Li-

brary of Congress, and for the additional reason that it is desired to

satisfy the laudable wish of patriotic Americans to have an oppor-

tunity to see the original fundamental documents upon which rest

their Independence and their Government.

It will be noted that the authority contained in the Act of February 25, 1903, to

transfer documents to the Library of Congress, is vested in the heads of the

departments and agencies and not in the President. Executive Order 3554,

however, after citing that act, states that it is “issued at the request of the Secretary

of State,” and I am of the opinion that the transfer of the Constitution and the

Declaration of Independence to the Library of Congress was, in fact, the act of the

Secretary of State in the exercise of the authority conferred upon him by the

statute, and that while Executive Order 3554 may have lent dignity, it added

nothing to the legality of the transaction.

It thus appears that the custody of the Constitution is now vested by statute in

the Library of Congress, and I find no statute which authorizes the President to

interfere with that custody or to prescribe rules governing it. It is my opinion,

therefore, than an executive order authorizing the removal of the Constitution from

the Library of Congress could neither compel such removal nor make it legal.

GOLDEN W. BELL

Assistant Solicitor General