Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions
Cornell Law School
DEMOCRACY'S PRIVILEGED FEW: LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS, Josh Chafetz, Yale University Press, 2007
This book is the first to compare the freedoms and protections of members of the United States Congress with those of Britain's Parliament. Placing legislative privilege in historical context, it explores how and why legislators in Britain and America have been granted special privileges in five areas: jurisdictional conflicts between the courts and the legislative houses, freedom of speech, freedom from civil arrest, resolution of disputed elections, and the disciplinary powers of the houses.
The book develops two models of parliamentary privilege in British history. The earlier, Blackstonian, model argues that privilege is historically rooted in the need to physically wall off the deliberations of Parliament from external influence. While Parliament was in its formative years, privilege functioned to help establish its relative power by absolutely protecting it from outside interference - primarily from the Crown and the courts, but also from private subjects. The promotion of democratic values necessitated insulating the power of the House at all costs. Over time, as Parliament established itself as an independent body and its position as a democratic institution solidified, privilege became increasingly porous, developing into the second, Millian, model. Privileges extended to the functions members performed outside of Parliament (e.g., interactions with constituents) and the courts increasingly were given jurisdiction to determine the scope of parliamentary privilege. This model was taken up in the New World and extended through American ideas of popular sovereignty, implying that privilege could never be used to shield members of Congress from their constituents. American congressional privilege must ensure that the legislators are kept subordinate to the sovereign people. Practically speaking, this means that other branches of government cannot be allowed to control the Houses of Congress in areas in which they are privileged, but Congress may not define the scope of its own privileges, either. This book highlights the struggle for power among government entities, leading from a self-defining, closely guarded privilege to one that is other-defining and transparent.
Legislative privilege is a crucial component of the relationship between a representative body and the other participants in government, including the people. In recounting and analyzing the remarkable story of how parliamentary government emerged and evolved in Britain and how it crossed the Atlantic, this book illuminates a variety of important constitutional issues, including the separation of powers, the nature of representation, and the difference between written and unwritten constitutionalism.
Keywords: parliamentary privilege, congressional privilege, legislative privilege, lex parliamenti, political questions, speech or debate, freedom from civil arrest, elections, contempt of congress, contempt of parliament, breach of privilegeAccepted Paper Series
Date posted: February 1, 2007
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