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

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]

Comments:

Do you discuss in the book the extent to which these privileges are essential to a functioning democratic system within the legislative body itself? For example, freedom of speech for legislators is essential to debate in the legislature and thus to the functioning of democracy.

# posted by

Mark Field : 8:04 PM

Here's the counter-argument against the search of Jefferson's office being unconstitutional: Where the authors of the Constitution intended to grant privileges, they proved capable of doing so explicitly.

And they didn't in this case.

# posted by

Brett : 8:28 PM

@Brett, do you seriously contend that the Constitution was intended to explicitly cover all contingencies? Even the most hard-core, self-deluded "originalists" don't make that silly mistake.

# posted by

Robert Link : 9:02 PM

Jefferson was under investigation for a felony. According to the plain language of the Constitutition, in the case of such a crime he could have been arrested, while the House was in session, right there on the floor. The immunity which the Constitution does explicitly grant to members of Congress specifically does not extend to felonies.

And you're asserting that they couldn't merely execute a search warrant on his office, leaving him free to debate and vote?

So the immunity the Constitution doesn't mention is more extensive than the immunity it does mention?

What I am seriously contending is that we shouldn't invent out of whole cloth new legal privileges to set politicians even further above the rabble, and then pretend that the Constitution demands we do so.

A good idea? I don't think so, but maybe. Constitutional?

In. Your. Dreams.

# posted by

Brett : 9:46 PM

brett: And you're asserting...

Slow down, dude. All I asserted is that the Constitution can't explicate all matters, and that only a fool would think it can. And I asked if you are such a fool. Are you?

# posted by

Robert Link : 3:19 PM

Robert, if the Constitution doesn't explicate this matter, then the search wasn't unconstitutional. Bad policy, maybe, perhaps a lousy idea, but "unconstitutional" doesn't mean "bad policy", it means "prohibited by the Constitution".

# posted by

Brett : 1:37 PM

@Brett: Are you capable of answering a simple question? If so, here it is: Do you seriously contend that the Constitution was intended to explicitly cover all contingencies? Maybe after you answer that we'll have something to talk about.

# posted by

Robert Link : 9:31 PM