Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions

Guest Blogger

Josh Chafetz

Thank you very much to Professor Balkin for lending me some space to plug my new book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, just out from Yale University Press.

In a nutshell, legislative privilege consists of those special rights enjoyed by individual Members or individual Houses of the legislature. In the book, I trace the evolution of five key strands of privilege through their development in British and American law. Those strands are, (1) jurisdictional conflicts between legislative houses and the courts (what the British call the clash between lex parliamenti and lex terrae and part of what the Americans call the political questions doctrine), (2) freedom of speech for legislators, (3) freedom from civil arrest for legislators, (4) the resolution of contested legislative elections, and (5) the disciplinary powers of the houses. I argue that a close focus on privilege provides a crucial window on the development of democratic norms and institutions in Anglo-American history, from the House of Commons' early struggles for influence, to the decisive rise of parliamentary sovereignty in the late-seventeenth century, to the rise of popular sovereignty in America.

While working on this project, I knew that I would learn some fascinating things about British and American legislative history, but I figured most of the relevance would be just that--historical. It had, after all, been a long time since Charles I and his troops stormed into the House of Commons, seeking to arrest five Members (the House refused to turn the Members over and passed a resolution declaring the King's action "a high breach of the Rights and Privileges of Parliament"--the public outcry against the King was so great that he was forced immediately to remove his court from London to Oxford, and thus began the Civil War). I also knew that legislative privilege was an important background issue even in the contemporary workings of Congress and Parliament.

But I never expected that my book would turn out to be timely. Somehow, however, it has. First, we had the Jefferson search, and now we have ethics reform, both of which raise significant questions of congressional privilege. I have argued elsewhere that the Jefferson search was unconstitutional and that the main focus of ethics reform should be on congressional self-discipline, and I won't rehash those arguments here. I will, however, add a word about a less obvious way in which legislative privilege is a timely topic. As Charles I reminded us, legislative privilege has served to guard the independence and power of Anglo-American legislatures for centuries. In a time in which many of us are concerned about executive overreach, legislative privilege takes on increasing importance as a way of protecting and empowering the most representative branch. Thus ends the plug for Democracy's Privileged Few--I hope you'll take a look at it. And thank you, again, to Professor Balkin for lending me his soapbox!
Posted 6:50 PM by Guest Blogger [link]