Democracy’s Privileged Few

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

JOSH CHAFETZ
Copyright Date: 2007
Published by: Yale University Press
Pages: 320
https://www.jstor.org/stable/j.ctt1npd61
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  • Book Info
    Democracy’s Privileged Few
    Book Description:

    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, Josh Chafetz 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, contested elections, and the disciplinary powers of the houses.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, Chafetz illuminates a variety of important constitutional issues, including the separation of powers, the nature of representation, and the difference between written and unwritten constitutionalism. This book will inspire in readers a much greater appreciation for the rise and triumph of democracy.

    eISBN: 978-0-300-13489-6
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction
    (pp. 1-26)

    Few things are more important to the collective political life of a modern state than that state’s constitution. Yet in two of the states that are considered exemplars of modern democratic constitutionalism—Britain and America—the very word “constitution” means radically different things. In the mother country, the Constitution is an amorphous thing, without sharp edges or a clearly defined status. The British Constitution cannot be distinguished from institutional interpretations of it: the actual, current structure of institutions is constitutive of the Constitution itself. When Albert Venn Dicey and later Vernon Bogdanor described the British Constitution as “historic”— that is,...

  5. 1 Lex Parliamenti vs. Lex Terrae
    (pp. 27-48)

    The nature of the relationship betweenlex et consuetude parliamenti(“lex parliamenti,” for short) andlex terraeis central to any conception of privilege in Britain. Lex parliamenti is that body of law dealing with issues internal to Parliament—each House’s composition, its organization, its procedures, its privileges, and so forth. Lex terrae—the law of the land—is the general law, applicable to all, and enforceable by the ordinary courts. The important question here is one of institutional power, and there are, broadly speaking, three possibilities: (1) the courts can say nothing at all about lex parliamenti and must...

  6. 2 Political Questions and Nonjusticiability
    (pp. 49-67)

    Article III of the American Constitution—as modified by the Eleventh Amendment—defines the jurisdiction of the federal judiciary. Yet it has long been accepted that there exists a category of cases that fall within these jurisdictional boundaries but nonetheless ought not to be heard in federal court.¹ Such cases are said to benonjusticiablebecause they presentpolitical questions—that is, questions the final resolution of which is left to the political branches of government (the legislature and executive). In Erwin Chemerinsky’s words, the political questions doctrine holds that “certain allegations of unconstitutional government conduct should not be ruled...

  7. 3 Free Speech in Parliament
    (pp. 68-86)

    Freedom of speech is almost certainly the most important and best known privilege of Parliament.¹ It is, without a doubt, essential to the performance of their duties that Members of Parliament not face inappropriate consequences for what they say on the floor. But what constitutes an “inappropriate” consequence? That question is at the heart of the evolving meaning of the privilege of free speech. The Blackstonian model, as might be expected, took a much more expansive view of the threats to parliamentary independence and therefore protected MPs from a wider range of consequences. In this view, for example, the monarch,...

  8. 4 Free Speech in Congress
    (pp. 87-110)

    The United States Constitution guarantees that, “for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other Place.”¹ This wording, of course, is immediately familiar as an adaptation—although not a straight importation—of Article 9 of the English Bill of Rights, discussed in the previous chapter. The ways in which this constitutional provision reacts to its English predecessor, and the ways in which it interacts with other American constitutional provisions—including the First Amendment—will prove instructive in developing a popular sovereigntybased account of its meaning.

    The Speech or Debate Clause seems...

  9. 5 Freedom from Civil Arrest and Legal Process for Members of Parliament
    (pp. 111-133)

    The privilege against civil arrest and legal process during Parliament time is among the most ancient of Parliament’s privileges. John Hatsell suggests that the privilege “must have been coeval with the existence of Parliaments, and . . . must, by some method or other, have been always adhered to and enforced.”¹ However, the theory behind the privilege, and therefore the scope of the privilege, has changed significantly. In its origin, the privilege was intended to protect the King’s right to have his Parliament meet without interference (and, indeed, it is related to the equally ancient privilege of freedom from private...

  10. 6 Freedom from Civil Arrest for Members of Congress
    (pp. 134-143)

    The Constitution guarantees that Members of Congress “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.”¹ Largely because there was comparatively little time between the adoption of the Constitution and the almost complete abolition of civil arrest in the United States,² this is the shortest chapter of our story. As we shall see, a popular sovereignty-based approach to the arrest privilege requires us to balance the need for the effective functioning of the ordinary...

  11. 7 Disputed Parliamentary Elections
    (pp. 144-161)

    The history of parliamentary jurisdiction over electoral disputes follows a now familiar pattern of movement from the Blackstonian to the Millian. The House of Commons acquired the power from royal officials, then, after a while, became corrupt in its use of the power, and finally was forced to surrender much of that power. In brief, the Blackstonian model holds that the House of Commons must be the sole judge of disputed elections, on the grounds that allowing the intervention of any outside body would present a grave threat to the independence of the House and thus to the democratic element...

  12. 8 Disputed Congressional Elections
    (pp. 162-192)

    Judging election disputes and controversies over the qualifications of its Members is one of the privileges of each House of Congress, just as it was long one of the privileges of the House of Commons. By examining the shape and scope of this privilege, we shall better understand the role of the Houses of Congress within the American constitutional system of popular sovereignty. We shall also be able to see whether there are any reasons why the Constitution should not be amended to turn this role over to the courts, as the British have done.

    As noted in chapter 2,...

  13. 9 Breach of Privilege and Contempt of Parliament
    (pp. 193-206)

    Erskine May defines contempt of Parliament as “any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results.”¹ Breach of privilege comprises that subset of contempts in which a specific privilege of one of the Houses is attacked or infringed upon. Obviously, these categories are both broad and imprecise. How they are interpreted is of the utmost importance to the role that Parliament...

  14. 10 Punishment by Congress
    (pp. 207-235)

    As with the Houses of Parliament, if the Houses of Congress are to be able effectively to control their proceedings, they must be able to prevent both Members and non-Members from disrupting their orderly functioning. This is where their disciplinary powers come into play. A House can punish its Members, including expelling them, for conduct that is disruptive or that brings disrepute on the House, and it can punish non-Members for disrupting the House—either by impermissible interference or by refusing to cooperate with a legitimate request of the House. However, the Houses must strike a fine balance when exercising...

  15. Conclusion
    (pp. 236-240)

    Legislative privilege has historically been a powerful tool of the British Parliament and the American Congress. Like any tool, it can be used properly or it can be abused, and, indeed, history provides many examples of each. As Carl Wittke has (perhaps a bit hyperbolically) noted,

    Privilege has been both the bulwark of English liberty and the most ruthless oppressor of the rights of the subject. It has proved a means for the advancement of democracy and representative government and institutions in the hands of some, and again, it has been a tool of oppression in the hands of a...

  16. Notes
    (pp. 241-294)
  17. Index
    (pp. 295-307)