Journal of Criminal Law and Criminology Volume 68 Article 3 Issue 1 March

Spring 1977 A Speech or Debate Privilege for State Legislators who Violate Federal Criminal Laws

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Recommended Citation A Speech or Debate Privilege for State Legislators who Violate Federal Criminal Laws, 68 J. Crim. L. & Criminology 31 (1977)

This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THEJOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 68, No. I Copyright © 1977 by Northwestern University School of Law Printedin U.S.A.

COMMENTS

Student contributors to this issue are Cheryl A. Knowles, Scott A. Young, Kathryn L. Knudson, Andrea Sue Kramer, and Douglas M. Palais.

A SPEECH OR DEBATE PRIVILEGE FOR STATE LEGISLATORS WHO VIOLATE FEDERAL CRIMINAL LAWS?

The concept of legislative independence in speech or debate privilege is an accepted part of speech or debate is thoroughly entrenched in the American political tradition, difficult ques- American political thought. Of common law tions concerning its scope and meaning con- origin, the concept is now embodied in Article 1 tinue to arise in the process of applying the § 6 cl. la of the Federal Constitution which privilege to the facts of specific cases. specifically provides that "for any Speech or One particularly complex question was raised Debate in either House [United States Senators recently in United States v. Craig,3 a Seventh and Representatives] shall not be questioned in Circuit case in which the court was asked to any other place."' Most state constitutions have determine to what extent, if any, state legislators similar provisions.2 However, although the are protected by a speech or debate privilege in I Article I, Section 6 also provides members of federal criminal prosecutions. The legislators in Congress with a separate privilege from arrest during the Craig case were charged with violating the sessions of Congress. Hobbs Act4 and the mail fraud statute' in their The Senators and Representatives shall receive a conduct as state legislators. Had they been fed- Compensation for their Services, to be ascer- eral congressmen, a significant portion of the tained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Government's evidence against them would Treason, Felony and Breach of the Peace, be have been barred by the federal speech or de- privileged from Arrest during their Attendence bate clause. Had they been prosecuted by state at the Session of their respective Houses, and in authorities for violation of a state law, the Illi- 6 going to and returning from the same; and for nois constitutional speech or debate clause any Speech or Debate in either House, they shall not be questioned in any other Place. would have had the same effect. The Craig court, in essence, had to determine whether No Senator or Representative shall, during the Time for which he was elected, be appointed to this same evidence could be used against the any civil office under the Authority of the United legislators simply because it was the federal States, which shall have been created, or the government that was prosecuting them for Emoluments whereof shall have been encreased commission of a federal crime. Thus far the during such time; and no Person holding any Office under the United States, shall be a Mem- case has generated three different judicial ber of either House during his Continuance in opinions on this question. The district court Office. held that the state legislators in question were U.S. CONST. art. I, § 6. protected by the Illinois constitutional speech 2 The Illinois constitutional provision is fairly typi- or debate clause.7 On appeal, a majority of a cal: A member [of the General Assembly] shall not be held to answer before any other tribunal for any the legislature. (N.C. CONST. art. 2, § 18). A list of the speech or debate, written or oral, in either various state speech or debate clauses or similar pro- House.... visions can be found in Tenney v. Brandhove, 341 ILL. CONST. art. IV, § 12. U.S. 367, 375 n.5 (1951). Florida is the only state with no constitutional pro- 3 537 F.2d 957 (7th Cir. 1976). vision concerning legislative privilege of any kind. 4 18 U.S.C. § 1951 (1970). The constitutions of California, Iowa, Mississippi, 5 18 U.S.C. § 1341 (1970). Nevada and South Carolina provide only a privilege 6 ILL. CONST. of 1970 art. IV, § 12. from arrest. (CAL. CONST. art. IV, § 11; IowA CONST. The unpublished district court opinion and or- art. III, § 11; MIss. CONST. art. IV, § 48; Nzv. ders were included in the brief for the United States CONST. art. IV, § 11; S.C. CONST. art. 3, § 14. North to the court of appeals. See, Brief for the United Carolina gives legislators a right to protest action of States appendix A, B, C. 528 F.2d 773 (7th Cir. 1976). COMMENTS [Vol. 68

three judge panel of the court of appeals held bile leasing business. Their conduct was alleged that they were entitled to a federal common law to violate the mail fraud statute." speech or debate privilege." On rehearing, Prior to the indictment, Markert had been however, a majority of the full court held that subpoened to testify before the grand jury in- no such federal common law speech or debate vestigating alleged corruption in the Illinois privilege exists. The legislators were only pro- General Assembly. He had also voluntarily sub- tected by common law official immunity.9 mitted to interviews with United States postal This comment will review the Craig decisions inspectors and with an Assistant United States and the Supreme Court cases on which the Attorney. On all occasions he was represented judges of the district and appellate courts re- by counsel and was informed of his fifth lied. While, as will be seen, there are no Su- amendment privilege against self incrimina- preme Court cases which speak directly to the tion. He chose, nevertheless, to answer all ques- problems raised by a federal criminal prosecu- tions put to him during the investigation. tion of a state legislator, it is the thesis of this After the indictment, Markert moved to dis- comment that the third Craig opinion most ac- miss on the grounds that the federal and Illi- curately reflects the law of privilege as the Su- nois speech or debate clauses' 2 constituted an preme Court has articulated it, either directly absolute bar to his prosecution. Although the or by implication. district court' 3 held that Markert was entitled to the protection of the speech or debate clause of THE CRAIG DECISION the Illinois constitution,' 4 it concluded that the The District Court scope of the clause was not so broad as to bar his In 1974, Robert Craig, Thomas Hanahan, prosecution for the crimes of extortion and and Louis Markert, members of the Illinois mail fraud. The speech or debate privilege op- House of Representatives, were indicted for erated as a substantive bar to prosecution only extortion and mail fraud. Count one of the if legislative acts were made the basis of a indictment charged them with obtaining $1500 charge or if inquiry into the legislative process from members of the Illinois Car and Truck was a necessary and essential part of the prose- Renting and Leasing Association "under color cution." Noting that "extortion and mail fraud 0 of official right" in violation of the Hobbs Act.' 11 18 U.S.C. § 1341 (1970). In count two they were charged with defraud- Whoever, having devised or intending to devise ing the citizens of Illinois of their right to loyal any scheme or artifice to defraud, or for obtain- and honest representation "and their right to ing money or property by means of false or have the legislative business of Illinois con- fraudulent pretenses, representations, or prom- ises, or to sell, dispose of, loan, exchange, alter, ducted honestly by accepting $1500 to block the give away, distribute, supply, or furnish or pro- passage of a bill which would affect the automo- cure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or any- thing represented to be or intimated or held out 8 United States v. Craig, 528 F.2d 773 (7th Cir. to be such counterfeit or spurious article, for the 1976). purpose of executing such scheme or artifice or 9 537 F.2d 957 (7th Cir. 1976). attempting so to do, places in any post office or ,0 18 U.S.C. § 1951 (1970). authorized depository for mail matter, any mat- (a) Whoever in any way or degree obstructs, ter of thing whatever to be sent or delivered by delays, or affects commerce or the movement of the Postal Service or takes or receives therefrom, any article or commodity in commerce, by rob- any such matter or thing, or knowingly causes to bery or extortion or attempts or conspires so to be delivered by mail according to the direction do, or commits or threatens physical violence to thereon, or at the place at which it is directed to any person or property in furtherance of a plan be delivered by the person to whom it is ad- or purpose to do anything in violation of this dressed, any such matter or thing, shall be fined section shall be fined not more than $10,000, or not more than $1,000 or imprisoned not more imprisoned not more than 20 years, or both. than five years, or both. (b) As used in this section- 11See note 1 and note 2, supra. 13 The opinion is unpublished. See note 7 supra. (2)The term "extortion" means the obtaining of 14 The court found that the federal speech or de- property from another, with his consent, in- bate clause protected only federal legislators. Brief duced by wrongful use of actual or threatened for the United States at app. 5. force, violence or fear, or under color of official "sId. at app. 8. The court reached this conclusion right.... after an examination of United States v. Johnson, 383 A SPEECH OR DEBATE PRIVILEGE

are in no conceivable way part of the legislative ernment argued that no federal common law process," and that the prosecution could pro- speech or debate privilege existed, and that ceed "without inquiry into the legislative proc- neither "reason" nor "experience" counseled 20 ess," the court refused to dismiss the indict- the creation of such a privilege in this case. 16 ment. A three judge panel of the Seventh Circuit, Markert then moved to have his pre-indict- with one judge concurring only in the result2' ment statements suppressed, claiming that they agreed with the Government that under Rule were obtained in violation of the speech or 501 and Rule 26 "the admissibility of evidence in debate privilege. The court agreed that Mar- criminal cases in federal courts is governed by kert was entitled to an evidentiary privilege to federal law and is not dependent upon diverse the extent that the government attempted to state laws, including state constitutional provi- inquire into his motives for or actual perform- sions. '22 The court, therefore, found that Mar- ance of legislative acts, and it ordered the sup- kert could not invoke the protection of the pression of certain portions of his testimony speech or debate clause of the Illinois Constitu- before the grand jury. Some of his statements tion. to the postal inspectors and the Assistant The panel next considered whether Markert United States Attorney were suppressed as was entitled to a federal common law speech or well. In answer to the Government's argument debate privilege. 2 It briefly reviewed several that Markert had waived his privilege by volun- Supreme Court decisions interpreting the tarily making his statements, the court held that scope of the federal speech or debate privilege. the speech or debate privilege was not personal Those decisions, according to the panel major- and could not be waived by an individual legis- 7 ity, indicate that the purpose of the federal lator.1 provision is to prevent legislators from being threatened by prosecutions and convictions for The PanelDecision the performance of their legislative duties. To The Government appealed the suppression insure this protection, the clause has both "sub- order,' asserting that the Illinois speech or stantive and evidentiary elements:" legislative debate clause could not be invoked by Markert because privilege under state law was inapplica- that state law is to govern privileges in civil cases in ble in federal criminal prosecutions. which state law supplies the rule of decision. Both Rule 20 In the alternative, the Government argued that 26 of the Federal Rules of Criminal Procedure any privilege which did exist should be considered and Rule 501 of the Federal Rules of Evidence personal and therefore waivable by the individual provide that privileges are to be controlled by legislator. Brief for the United States at 36. 21 528 F.2d 773 (7th "the principles of common law as they may be Cir. 1976). Judge Cummings wrote the majority opinion for himself and Judge interpreted by the courts of the United States in 9 Kunzig, Judge of the United States Court of Claims the light of reason and experience." The Gov- sitting by designation. Judge Tone, whose position differed substantially from that of the other two U.S. 169 (1966), and United States v. Brewster, 408 members of the panel, wrote a separate, concurring U.S. 501 (1971), cases in which the Supreme Court opinion which is discussed in the text accompanying reached a similar conclusion with regard to the scope notes 39-46 infra. of the federal speech or debate clause. See discussion 22 528 F:2d at 776. accompanying notes 100-112 and notes 113-129 infra. 2' The court did not discuss whether the federal 16 Brief for the United States at app. 8. speech or debate clause protects state legislators. One '7 Brief for the United States at app. 15. This hold- Fourth Circuit case, Eslinger v. Thomas, 476 F.2d ing on the question of waiver was subsequently re- 225, 228 (4th Cir. 1973), suggests that the Supreme versed by the court of appeals panel decision, 528 Court extended the federal clause to the states in F.2d 773, 780 (7th Cir. 1976). The opinion of the full Tenney v. Brandhove, 341 U.S. 376 (1951). However, court, after rehearing, did not reach the issue of such a suggestion seems clearly wrong. The Supreme waiver, 537 F.2d. 957, 958 (7th Cir. 1976). Because the Court does not even consider Tenney a speech or issue of waiver is tangential to the focus of this com- debate clause case. United States v. Brewster, 408 ment, it will not be further discussed in the body of U.S. 501, 516 n.10 (1972). Furthermore, no constitu- the paper. tional vehicle such as the fourteenth amendment ex- 18 18 U.S.C. § 3731 (1970) allows the Government ists by which an article, rather than an amendment, to appeal interlocutory rulings on the suppression of of the Constitution can be made binding on the states, evidence. and Article I, § 6 on its face applies only to the " The language of both rules is essentially identical Federal Congress. See, Brief for the United States at except that Rule 501 contains an additional provision 15 n.32. COMMENTS [Vol. 68

acts cannot be made the basis of civil or criminal the basis of the type of political expression which liability, and legislators cannot be made to an- gave rise to the doctrine of Speech or Debate. swer questions about either their legislative ac- Absent separation of powers considerations, tivities or their motives for performing those there is no corresponding benefit to be gained from extending the privilege beyond the ambit activities.2 4 Only the evidentiary aspect of the of first amendment protections. privilege was before the panel. The majority 25 To the extent that the first amendment would characterized it as a "necessary prophylatic not immunize state legislators from civil suits for and maintained that its purpose was "the same libel and slander, the doctrine of official immu- as that of the substantive aspect of the Speech nity would provide the necessary protection.30 or Debate Clause: preservation of the inde- pendence of the legislature."2 Furthermore, the Government argued, the The Government argued, however, that in- states have a legitimate interest in obtaining dependence of the legislature is only a concern federal assistance in the area of crime control, when co-equal branches of the government are and that interest would be furthered "by the involved. At the federal level, the speech or federal government's attempt to use its re- debate clause serves a separation of powers sources to assist in excising the malignancy of 3 purpose, "preserving the balance of power local political corruption." ' among the three co-equal branches of govern- The panel majority felt strongly that the gov- ment.."27 Because the federal government was ernment's position ignored the basic concept of prosecuting a state official in the instant case, federalism envisioned by the drafters of the there was no question of "intra-federal power" Constitution: the national government was de- being upset: signed to be one of limited powers and the states were to continue as essential units of gov- ernment.32 According to the The power to prosecute [Markert and the other two judge major- ity, state legislators have legislators] . . . evolved from the co-equal func- as vital a role to play in tioning of all three federal branches. Congress the government of a state as Congress has in the ... passed the laws on which the prosecution government of the nation. Independence of rests; the executive ... elected to pursue the the state legislatures cannot, therefore, be dis- 28 case; and the judiciary awaits to hear it. missed as irrelevant. Although the speech or debate privilege em- The real issue, according to the Government, braces notions of the separation of powers was whether failure to recognize a legislative among co-equal branches of government, its pri- privilege for state legislators in federal court would interfere with a legitimate state interest, 30 Brief for the United States at 32 n.64. For its first since under a federal system of government amendment argument the Government relied on national interests may not be protected "in ways Bond v. Floyd, 385 U.S. 116 (1966), in which the that . . . unduly interfere with the legitimate Supreme Court said: activities of the states. '29 Although admitting The manifest function of the First Amendment that states clearly have an interest in free legis- in a representative government requires that leg- lative debate, the Government argued that ab- islators be given the widest latitude to express their views on issues of policy. sence of legislative privilege would not hamper 385 U.S. at 136. This case is discussed in the text that free debate. It maintained that the protec- accompanying notes 198-205 infra. tion of the first amendment and the doctrine of "' Brief for the United States at 32. 32 The majority official immunity would insure freedom of used the tenth amendment to but- tress this argument: "The reservation of power for speech in state legislatures: the states is .. . the import of the Tenth Amend- ment .. " 528 F.2d at 778. Yet it is clear today, as The first amendment, as interpreted today, pro- one commentator has noted, that "the Tenth Amend- tects all citizens from criminal prosecution on ment does not shield the States nor their political subdivisions from the import of any authority affirm- 24528 F.2d 25 at 777. atively granted to the Federal Government." E. COR- Id. at 778. WIN, THE CONSTITUTION AND WHAT IT MEANS To- 26 Id. DAY, 372-73 (1974). Thus, if the federal government 27 Brief for the United States at 29. has the power to reach the conduct of the legislators, 2 8 Id. the tenth amendment does not take away that power 29 Id. at 30, quoting Younger v. Harris, 401 U.S. 37, simply because its exercise interferes with the state's 44 (1971). own exercise of power. A SPEECH OR DEBATE PRIVILEGE

39 mary message is that legislatures must be able to Judge Tone, concurring in the result, discharge their lawful responsibility in an atmos- agreed that the Illinois constitutional speech or phere free from the threat of interference by debate clause was inapplicable in federal other governmental units. A legislator in consid- criminal prosecutions. But he disputed the ering whether to support or oppose a proposed panel majority's position that a legislator could law must be free to reflect on the merits; he must claim a similar privilege under federal common not be deterred from advocating a position by law. Citing the same cases as the majority, he the threat of prosecution by a hostile executive. The evil is the fact of deterrence; whether the maintained that while state legislators are enti- threat emanates from the local or national exec- tled to protection from liability for acts per- utive makes no difference. formed in furtherance of their legislative du- This threat to the legislature's independence ties, the basis of that protection is not the fed- is fundamentally inconsistent with the idea of eral speech or debate clause, but the common legislative action reflected in the policy, purpose law doctrine of official immunity.40 As for the and history of the privilege and inherent in the evidentiary privilege, Judge Tone asserted that words: "for any Speech or Debate in either any privilege against disclosure must be "com- House, they shall not be questioned in any other mensurate" with the underlying immunity Place." U.S. CONST. art. I § 6. Deterring a legis- from liability. But, lator from advancing a point of view, or influ- encing how he votes by requiring him to explain his motives before a grand jury is precisely the where there is no immunity, it would be incon- evil the speech or debate privilege intends to gruous if not useless, to recognize an evidentiary preventY' privilege. Accordingly, whether the claimed priv- ilege should be recognized as a development in Protection of the first amendment was not the federal common law of evidence depends on 41 enough because the amendment provides no whether there is an underlying immunity. privilege against giving testimony, even if that testimony involves inquiry into a legislator's He then pointed out that the doctrine of official motive for a particular vote or other legislative 3 4 immunity has never been extended into the act. Consequently, "in view of the purposes of area of criminal liability: the speech or debate privilege, its common law history, and the important role of the states in governing the country," the majority concluded Immunity from civil but not criminal liability has that state legislators are protected in federal been regarded as sufficient to achieve the pur- criminal prosecutions by a federal common law pose of the doctrine of official immunity, which 3 5 is to promote independence and fearless dis- speech or debate privilege. The panel did charge of duty on the part of the protected leave open the possibility that the privilege 42 officials . might be abrogated by Congress in a narrowly drawn statute,36 but it was unwilling to "abol- ish"37 the privilege by "judicial fiat in a federal Therefore, according to Judge Tone, state leg- criminal prosecution under a statute of general islators are subject to federal criminal liability if applicability."3 they violate a federal criminal statute, even if they are acting within their legislative role. On the other hand, federal congressmen 33 34 528 F.2d at 778-79. Id.at 779. are afforded considerably broader protection 3 Id. by the federal speech or debate clause because 36 The court's position was similar to that of the it not only promotes independence but serves Court in United States v. Johnson, 383 U.S. 169 (1966), in which the issue of whether inquiry might be made into the legislative acts of Federal Congressmen order. Both Judge Cummings and Judge Kunzig felt in a prosecution under a narrowly drawn statute that the legislative privilege was a "personal" privi- passed by Congress in the exercise of its power to lege of the legislator and that Markert, by volun- regulate congressional conduct was expressly left tarily testifying, had waived his protection. Id. at 780-81. open. 39 3 528 F.2d at 779. Id. at 781. Judge Tone concurred on the basis of order. 38 528 F.2d at 779. Although the majority held that the4 0reversal of the suppression Markert was protected by a federal common law Id. at 782. speech or debate evidentiary privilege, it remanded 41 Id. the case with directions to overrule the suppression 42 Id. at 783. COMMENTS [Vol. 68

"an additional more fundamental purpose ing official corruption; and that although a legis- record and other legislative con- grounded in the separation of powers in the lator's voting duct is not privileged from inquiry it would not, federal government."43 Seeing no separation of standing alone, support an inference of wrong- of a state powers problem in the prosecution doing or improper motive. Proof aliunde will be legislator by the federal executive ,44 and noting required .49 that the Federal Constitution itself "does not 4 5 create an immunity for state legislators" Three judges disagreed with the majority on 58 Judge Tone maintained there was no reason the issue of privilege. Judge Cummings and for the federal judiciary to create such an im- Judge Swygert felt the legislators were pro- 5 munity. tected by a federal common law privilege. ' Chief Judge Fairchild, on the other hand, felt or in the authorities re- Nothing in our history that because of the "constitutional relationship lied upon by the court in this case suggests that between the states and the United States," the there is a threat of federal executive interfer- and give effect to the ence with the independence of state legislatures court should honor speech or debate clause of the Illinois Constitu- that would warrant extending the judicially de- 2 veloped doctrine of official immunity beyond its tion . traditional boundaries. Accordingly, I would hold that the state legislator's official immunity THE COMPETING THEORIES: SPEECH OR does not extend to liability under federal crimi- DEBATE PRIVILEGE VERSUS OFFICIAL IMMUNITY nal statutes, and that he therefore has no com-46 official privilege against disclosure. mensurate As the court of appeals panel decision makes clear, the decision to fashion a common law The Full Court Decision speech or debate privilege rather than apply the Illinois state constitutional privilege is dic- The Government petitioned the court for a tated by the federal rules of evidence. In terms rehearing en banc. A majority47 of the full court of practical effect on the legislators in Craig, agreed with Judge Tone's position and voted to however, there is little difference in result. Al- reverse the panel decision that the legislators though there has been no definitive interpreta- were entitled to the protection of a federal com- tion of the Illinois provision, it is worded almost mon law evidentiary speech or debate privi- identically to the federal constitutional provi- lege. 48 The court made special note, however, sion and there is no reason to suppose that the that Illinois courts would not closely follow the Su- the absence of a privilege has no relationship to preme Court's interpretation of the federal the proof necessary to establish a crime involv- clause. Similarly, those same Supreme Court decisions which interpret the federal clause ex- 43Id. amine the origin of the concept of legislative 44 The relationship between the states and the fed- privilege, and naturally provide an authorita- as a eral government is not usually characterized tive source for determining the parameters of a separation of powers question. See Pierson v. Ray, 386 speech or debate privilege. U.S. 547, 564-65 (1967): "The doctrine of separation common law of powers is, of course, applicable only to the rela- 49 537 F.2d at 958-59 (emphasis in original). tions of coordinate branches of the same govern- " There was less disagreement on the question of the branches of the ment, not to the relations between reversed. and those of the States." Cf. whether the suppression order should be Federal Government for reversal on that Baker v. Carr, 369 U.S. 186, 210 (1962), "[lit is the Seven of the eight judges voted relationship between the judiciary and the coordinate issue. the Federal Government, and not the 51judge Cummings adhered to his views in the branches of were pro- federal judiciary's relationship to the States, which panel majority opinion that the legislators rise to the 'political question.' tected by a federal common law speech or debate gives privilege 45 528 F.2d at 783. privilege; but that Markert had waived his testifying. Judge Swygert agreed with 46Id. (footnotes omitted). by voluntarily 47 on the existence of the privilege, Judges Pell, Sprecher, Tone, Bauer and Wood Judge Cummings not been waived. 537 made up the majority. but he felt the privilege had F.2d at 958-59. 48 537 F.2d 959 (7th Cir. 1976). The opinion of the 5 Id. at 959. Chief judge Fairchild voted to reverse full court does not re-analyze the issue, but merely 1 however, because he felt Mar- Judge Tone's concurring opinion from the the suppression order, adopts the privilege. panel decision. kert had waived 19771 A SPEECH OR DEBATE PRIVILEGE

On the other hand, of crucial importance to ing, in petitions to the Crown at the beginning the legislators in Craig is the question of of each Parliament, that freedom of speech was whether the "principles of common law" and its "ancient and undoubted right and inherit- relevant Supreme Court decisions dictate the ance."5 7 The Ehglish monarchs yielded to this application of a privilege based on the speech assertion of privilege in varying degrees. Eliza- or debate clauses of the federal and state consti- beth I, for example, apparently acknowledged tutions, or one based on the similar but nar- "freedom of speech," but tried to qualify the rower principles privilege by defining it as the privilege to say underlying the doctrine of of- 58 ficial immunity. Developing an answer to this "aye or no." James I was also willing to recog- question involves an understanding of the Eng- nize the existence of a privilege, but not as a lish common law origin of the privilege, its parliamentary right. He maintained that any Americanization as it was incorporated into the parliamentary privilege was a matter of royal constitutional structure of the United States, "toleration" and that the King was therefore and its relationship to the common law doctrine free, should the need arise, to "punish any of official immunity. man's misdemeanors in Parliament, as well during their sitting as after."59 However, by the Development of the Speech or Debate Privilege middle of the seventeenth century, Parliament The concept of legislative privilege in speech appears to have won the battle for a complete or debate was brought to the United States and meaningful privilege. The privilege was from England where it had developed as a con- embodied formally into the English Bill of sequence of the long struggle for political su- Rights in 1689,60 and its existence was never 5 3 premacy between the Crown and Parliament. seriously questioned thereafter. 6' Subse- The English battle was two pronged. Parlia- quently, as the battle for political supremacy ment had to fight not only for freedom of between the Crown and Parliament was re- speech and deliberation, but also for the right solved, the privilege came to be asserted more to initiate legislation.5 4 Particularly during the often against fellow citizens than against the reign of the Tudors and the Stuarts, the Crown King.62 In its origin, however, the privilege was resisted the growth of Parliamentary power. clearly asserted to assure the independence of Throughout this period members of Parlia- Parliament from the power of the Crown. ment were subject to arrest, imprisonment or The English Parliament's concern for inde- banishment from Parliament both for speeches pendence was, of course, well known to those which displeased the Crown and for "meddling with matters of state" which were considered to that the Act was "private" and referred only to 55 sole perogative of the Crown. Strode. In 1667, Parliament formally declared the Act be the to be one of "general operation" declaring "ancient Parliament responded to actions taken and necessary rights and privileges of Parliament." against its members by passing legislation de- Veeder, supra note 54, at 132 n.5, 133-34. claring that all prosecutions based on parlia- -1 Veeder, supra note 54, at 132-33. Assertion of mentary proceedings were void," and by claim- the privilege in the petition to the Crown was appar- ently begun in 1541. Id. at 132. 58 Id. at 133. Veeder quotes the Queen as saying: ' United States v. Johnson, 383 U.S. 169, 178 Privilege of speech is granted, but you must (1966). know what privilege you have; not to speak 54 Veeder, Absolute Immunity in Defamation: Legisla- everyone what he listeth or what cometh in his tive and Executive Proceedings, 10 COLUM. L. REV. 131, brain to utter that; but your privilege is, aye or 132 (1910) [hereinafter cited as Veeder]. no. " Id. at 132-33. See also Celia, The Doctrine of Legis- 59 Id. lative Privilege of Freedom of Speech and Debate: Its Past, oId. at 134. See also Comments on Recent Cases, 50 Presentand Futureas a Bar to CriminalProsecutions in the IOWA L. REV. 893, 895 (1965). For a detailed discus- Courts, 2 SUFFOLK L. REV. 1, (1968) [hereinafter cited sion of the development of the English privilege, see as Cella]. Celia, supra note 55, at 1-13, and M. CLARKE, PARLI- " See e.g., Privilege of Parliament Act 1512, 4 Hen. MENTARY PRIVILEGE IN THE AMERICAN COLONIES, 1- VIII, c.8. This Act arose out of the prosecution of 13 (1943) [hereinafter cited as CLARKE]. Richard Strode, a member of the House of Com- 61 Although the existence of the privilege was set- mons, for introducing legislation to regulate tin min- tled, its scope was still the subject of considerable ing. Although the Act clearly stated that prosecutions debate. Cella, supra note 55, at 12. of all present and future members of Parliament for 2 Comments on Recent Cases, 50 IOWA L. REV. 893, legislative acts were void, the Kings Bench later held 895 (1965). COMMENTS [Vol. 68 who founded the English colonies in America. and importance of legislative privilege in the Early colonial legislators expressed a similar representative systems they sought to establish. concern for the independence of the colonial A few years later, the drafters of the Federal assemblies,63 and the tensions that developed Constitution did not even question the impor- between the assemblies and the royal governors tance of legislative privilege. They adopted the and English Parliament served to keep that federal speech or debate clause without dissent concern alive throughout the colonial period.6 or significant discussion," merely altering the From a legal standpoint none of the colonial wording of the English privilege to fit the 72 assemblies possessed formally recognized par- American tripartite governmental structure. liamentary rights. 6 But, starting quite early in As Justice Frankfurter was later to note, the the colonial period, they began to ask the royal clause was simply a "reflection of political prin- governors to recognize that they held privileges ciples already established in the states. 73 Those similar to those enjoyed by Parliament,6 6 and "principles already established" were not, how- gradually the custom of recognizing and grant- ever, adopted wholesale from England. Al- ing legislative privilege to the colonial assem- though the colonial assemblies had, in some blies became thoroughly established. 67 Indeed, sense, begun their existence as "small parlia- there is every indication that the colonists felt ments," 74 the nature of the political structure in such privileges to be a matter of "right" which the colonial system, the physical isolation of the 68 could not be denied. colonies from England, and the intense debate Immediately after the revolution, the Articles over the nature of government that raged of Confederation 69 and the constitutions of sev- throughout the colonial period 75 all combined eral states70 formally recognized the existence to create uniquely American institutions in the colonies. 6' Celia, supra note 55, at 13; CLARKE, supra note 60, at 13. Scope of the Privilege 64 See CLARKE, supra note 60, at 90-131, for an The first judicial consideration of the scope excellent summary of some of the battles between the royal governors and the assemblies. As both Clarke of legislative privilege in America appears in 7 6 and Cella make clear, the question of legislative inde- Coffin v. Coffin, an 1808 case in which the pendence was more complex in the colonies, since Massachusetts Supreme Court was asked to in- colonial assemblies were confronted not only with the terpret the meaning of the state constitutional power of the royal governors, but also with the power 77 of the English Parliament. Celia, supra note 56, at 14; speech or debate clause. Interestingly, the CLARKE, supra note 61, at 12. Many colonists appar- case presented no issue of executive interfer- ently felt they owed no loyalty or duty to Parliament, ence with the legislative branch, the evil the their only obligation being to the King. W. BENNET, AMERICAN THEORIES OF FEDERALISM, at 15-37 (1964) The freedom of deliberation, speech, and debate [hereinafter cited as BENNET]. Parliament, of course, in either house of the legislature, is so essential to had other ideas. the rights of the people, that it cannot be the 65 CLARKE, supra note 60, at 12. foundation of any action, complaint, or prosecu- 66 Id. at 61-92. 67 tion, in any other court or place whatsoever. Id. at 70. 71 Celia, supra note 55, at 14. 6 Two amendments to 1Id. at 79. the clause were offered and rejected. One would have 69 ART. OF CONFED. V. made each house the sole judge of the privilege, the Freedom of Speech and Debate in Congress shall other would have defined the extent of the privilege. not be impeached or questioned in any court or Id. at 14-15. place out of Congress. 72The English privilege is phrased as follows: 70 MARYLAND DECLARATION OF RIGHTS, art. VIII, [Tihat the freedom of Speech and Debate or (1776): Proceedings in Parliament ought not to be im- Freedom of speech and debates or proceedings, peached or questioned in any court or place out in the legislature, ought not to be impeached in of Parliament. any other court or judicature. 1 Win. + M., sess. 2, c.2. MASS. CONST. art. XXI (1780): 7'Tenney v. Brandhove, 341 U.S. 367, 373 (1951). The freedom of deliberation speech and debate 7 CLARKE, supra note 60, at 12. in either house of the legislature, is so essential to 7 See BENNET, supra note 64 passim; and CLARKE, the rights of the people that it cannot be the supra note 60, passim. foundation of any accusation or prosecution, ac- 764 Mass. 1 (1808). This case is discussed in great tion, or complaint in any other court or place detail in Celia, supra note 55, at 19-30. whatsoever. 71 MASS. CONST. art. XXI (1780). See note 70supra N.H. CONST. art. XXX (1784): for text of provision. A SPEECH OR DEBATE PRIVILEGE privilege was originally designed to remedy. be the exclusive judge of its privileges, he felt Rather, it involved a private citizen's suit for the court at least had the right and obligation to 78 slander against a state legislator. determine the "intent and design"8' 4 of the con- William Coffin asked Benjamin Russell, a stitutional clause and whether it comprehended member of the Massachusetts House of Repre- the particular conduct of the legislator. He then sentatives, to introduce a resolution to increase proceded to interpret the clause expansively, in 85 the number of notaries public in Nantucket. words that are still quoted today. Russell, an acquaintance of Coffin's, agreed. After the resolution passed, and the House had [Legislative privilege is secured] not with the moved on to the consideration of other busi- intention of protecting the members against prosecutions for their own benefit, but to sup- ness, Micajah Coffin, 79 another representative, port the rights of the people, by enabling their asked the sponsor of the resolution to identify representatives to execute the functions of their the "respectable gentlemen from Nantucket" office without fear of prosecutions, civil or crim- from whom he had received the information on inal. I therefore think that the article ought not which he had based the proposal. William Cof- to be construed strictly, but liberally, that the fin was pointed out and Micajah Coffin was full design of it may be answered. I will not heard to exclaim, "What! That Convict?" and confine it to delivering an opinion, uttering a other words to the effect that an acquittal from speech, or haranguing in debate; but will extend bank robbery charges against William did not it to the giving of a vote, to the making of a 8 "make him any less guilty." 0 William then sued written report, and to every other act resulting from the nature and in the execution, of the Micajah for slander. office; and I would define the article as securing Micajah raised the Massachusetts constitu- to every member exemption from prosecution, tional provision as a defense and argued, citing for every thing said or done by him, as a repre- English precedents, that the effect of the clause sentative, in the exercise of the functions of that was to make the Massachusetts House the sole office, without inquiring whether the exercise judge of the privileges of its members. William was regular according to the rules of the house, Coffin, on the other hand, argued that the or irregular and against their rules. I do not English experience was simply inapposite. The confine the member to his place in the house; House could not be the sole judge of its own and I am satisfied that there are cases in which he is entitled to this privilege, when not within privileges under the Massachusetts constitu- 8 6 tional form of government in which "the judici- the walls of the representatives' chamber. ary power is an original coordinate and inde- 8 However, in applying this interpretation to pendent branch of the government," ' and the the facts before him, Judge Parsons took a sur- court is established "as the supreme tribunal to prisingly restrictive view of his own words and determine the true meaning of each part of the 8' 2 found that Micajah Coffin was not exercising constitution, as well as of the laws." the functions of his representative office at the ChiefJustice Parsons, who wrote the opinion time he called William a convict. Therefore, the of the Court, agreed with William Coffin. privilege could not protect him against a suit 7 While he was willing to concede that for "cer- defamation. s3 for tain intents and purposes" the House might Despite its restrictive holding, and despite the fact that it was a state case and the clause 78 At least one commentator has suggested that being interpreted was broader than most other legislative privilege incorporated in the constitutions state clauses and the federal clause, 8 Coffin has of the states was designed primarily as protection 8 against fellow citizens of the legislator. Field, The 1d. at 78. ConstitutionalPrivileges of Legislators, 9 MINN. L. REV. See e.g., United States v. Brewster, 408 U.S. 501, 442, 443 (1924-25). However, in view of the fact that 514 (1972); Tenney v. Brandhove, 341 U.S. 367, 373- the governmental structure of the states so closely 74 (1951). parallels that of the federal government, it is proba- 86 4 Mass. at 27. ble that the constitutional clauses were intended to 17 Id. at 29-30, 36. For a criticism of the court's serve a separation of powers purpose as well. application of its own interpretation, see Celia, supra 7' Micahah and William Coffin were not related. note 55, at 28-30. s44 Mass. at 4. 88 The Massachusetts clause, quoted in full in note 70 supra, protects deliberation, speech and debate, 8 Id. at 13. 2 !d. at 9. and forbids prosecutions, actions and complaints in 3Id. at 31. anyplace whatsoever outside the legislature. COMMENTS [Vol. 68

had considerable influence in later judicial in- Because the Kilbourn Court explicitly ex- terpretations of the meaning of legislative privi- panded the protection of the federal clause lege. The Supreme Court in Kilbourn v. Thomp- beyond pure speech or debate to encompass son, s9 for example, relied heavily on the lan- protection for legislative acts, the case is fre- guage, though not the holding, of Coffin. quently cited for the proposition that the clause Kilbourn was the first judicial interpretation must be construed liberally "to effectuate its of the federal privilege. A committee of the purposes." 95 The holding of the Court was not United States House of Representatives had as liberal as it might have been, however, for summoned Kilbourn to give testimony. When the Court refused to absolve the sergeant-at- Kilbourn refused, the committee voted to ar- arms from liability for carrying out the commit- rest and imprison him for contempt. Kilbourn tee order. As the order issued by the committee brought suit for false imprisonment against was "without authority,"9 6 the arrest of Kil- both the members of the committee who voted bourn was illegal. Since the sergeant-at-arms for the resolution authorizing his arrest and the was only a legislative functionary, not a legisla- sergeant-at-arms who arrested him. tor, he was unprotected by the legislative privi- After citing with approval Justice Parson's lege and subject to suit for false imprisonment. dictum in Coffin, 9 the Court took a similar This principle, that employees who implement approach to the interpretation of the federal the policies of legislators may be subject to suit privilege: even though the legislators themselves are not, at least arguably interferes with the independ- It would be a narrow view of the constitutional ence of the legislature. 97 But it also helps pro- provision to limit it to words spoken in debate. tect the public against abuses of the legislature, The reason of the rule is as forcible in its appli- without violating the literal wording of the con- cation to written reports presented in that body 98 by its committees, to resolutions offered, which, stitutional privilege. Thus, although Kilbourn, though in writing, must be reproduced in like Coffin, stressed the importance of the inde- speech, and to the act of voting, whether it is pendence of the legislature, it effectively com- done vocally or by passing between the tellers. promised on the full implications of this princi- In short, to things generally done in a session of ple. the House by one of its members in relation to With the exception of Tenney v. Brandhove,99 9 the business before it. ' Kilbourn was the only major Supreme Court decision on the subject of legislative privilege On the basis of this interpretation, the Court until United States v. Johnson'°° was decided went on to find that the members of the com- mittee were immune from suit. While there " United States v. Johnson, 383 U.S. 169, 180 might be "things done, in the one House or the (1966). other, of an extraordinary character, for which 96 103 U.S. at 200. members who take part in the act may be held 97The legislature needs the help of non-legislative legally responsible," 92 on the facts presented, employees in carrying out its functions. It may find it even though the committee was acting beyond difficult to hire them if they are subject to liability when in good faith they carry out a legislative order its authority when it issued the order against 93 that turns out later to be without authority. the recalcitrant Mr. Kilbourn, the act of vot- 98 The Court has frequently permitted legislative ing for a resolution was one of those "things functionries to be sued when suit against Congress- generally done in a session of the House ... in men was prohibited by the clause. See e.g., Doe v. 9 4 McMillan, 412 U.S. 306 (1973) (suit not allowed relation to the business before it."1 It was, against Congressmen for allegedly slanderous mate- therefore, protected by the federal legislative rial in a committee report, republished and distrib- privilege. uted to the public, but suit against government printer allowable); Powell v. McCormack, 395 U.S. 89 103 U.S. 168 (1881). 486 (1969) (suit against Congressmen for vote to ex- 90 /d. at 203-04. clude representative Powell from Congress not al- 91 /d. at 204. lowed; suit allowed against House aides implement- 9 1d. The Court has continued to leave open the ing the invalid resolution); Dombrowski v. Eastland, possibility of congressional liability for "extraordi- 387 U.S. 82 (1967) (suit prohibited against Chairman nary" conduct, although it has never been faced with of Senate subcommittee, but allowed against subcom- such a case. See e.g., Powell v. McCormack, 395 U.S. mittee counsel). 486,93 506 n.26 (1969). 99 341 U.S. 367 (1951). This case is discussed fully in Id. at 200. the text accompanying notes 167-97 infra. 94Id. at 204. 100 383 U.S. 169 (1966). Along with Kilbourn, John- 1977] A SPEECH OR DEBATE PRIVILEGE

eighty-five years later. Johnson was a United system of separation of powers"'1 7 in which the States Congressman alleged to have taken a clause not only helps assure the independence bribe to use his influence to obtain the dismissal of the legislature, but also reinforces the sepa- of indictments against certain officials of sav- ration of the three branches of the govern- ings and loan institutions. He was indicted for ment. 0" In light of both its historical develop- violation of the federal conflict of interest stat- ment and the concept of separation of powers, 0 ute' ' and for conspiracy to defraud the United the Court concluded that the clause prevents 102 States. An essential piece of evidence used not only prosecutions based on the content of a against him on the conspiracy count was a legislator's speech, but also those prosecutions speech favorable to savings and loan associa- which inquire into the legislator's motivation or tions which he had delivered in Congress. The intention for the performance of any legislative Court of Appeals for the Fourth Circuit held act. that the use of such evidence was precluded by The Government could not, therefore, main- 03 the speech or debate clause. It reversed his tain a case against Johnson which in essence conviction, dismissed the conspiracy charge charged him with improper motivation in his and remanded the case for a new trial on the legislative conduct. The Government had in- 1 4 conflict of interest issue. quired extensively into the wording of his Although the Supreme Court had never be- speech, his personal knowledge of the facts fore considered whether the speech or debate included in it and the way in which the speech clause granted any sort of immunity in situa- was prepared. In short, tions in which criminal conduct was intertwined with legislative acts, 0 5 it had little difficulty in the conspiracy theory depended on a showing that the speech was made solely or primarily to affirming he court of appeals' decision that serve private interests, and thatJohnson in mak- Johnson's conviction on the conspiracy count ing it was not acting in good faith, that is, that he could not stand. Its approach to the question did not prepare or deliver the speech in the way was essentially historical. It noted that the pri- an ordinary Congressman prepares or delivers mary impetus for the development of legislative an ordinary speech. 1' 9 privilege was not the fear of private civil suits such as that in Kilbourn, but fear of "intimida- His prosecution on this basis violated both the tion" of the legislature by the "instigation of letter and the spirit of the speech or debate criminal charges against critical or disfavored clause. The Court was careful to note, however, legislators by the executive in a judicial that its holding was "limited to prosecutions forum."'10 That same fear, according to the involving circumstances such as those pre- ' Court, formed the "predominate thrust of the sented in this case 1ii in which the Govern- Speech or Debate Clause" under the "American ment's inquiry into the Congressman's motive was not an "incidental" part of its case, but son is also cited for the proposition that the speech or central to the proof of criminal conduct. The debate clause must be construed liberally. Doe v. McMillan, 412 U.S. 306, 311 (1973). decision did not affect "prosecutions which ,0118 U.S.C. § 281 (1964). though ... founded on a criminal statute of 102 18 U.S.C. § 371 (1970). general application, do not draw in question '03 337 F.2d 180 (4th Cir. 1964), affd 383 U.S. 169 the legislative acts of the defendant member of (1966). Congress 04 The court felt that evidence of the speech had or his motives for performing unfairly prejudiced the determination of Johnson's them.""' Thus, although Johnson was entitled guilt on the conflict of interest charges. Id. at 204. to an evidentiary privilege insofar as the Gov- 105 In Burton v. United States, 202 U.S. 344 (1906), ernment attempted to prove his participation in the Court found that the speech or debate clause a conspiracy to defraud the provided no protection to a legislator charged with government by ref- criminal conduct outside the sphere of legislative ac- erence to his legislative conduct, the Govern- tivity. (The charge was bribery to influence the Post ment was not precluded from showing criminal Office Department to quash an indictment.) Cf. Wil- conduct on the basis of other evidence. Since liamson v. United States, 207 U.S. 425 (1903) (The the making of the speech was only part of the constitutional privilege from arrest, U.S. CoNsr. art. 1 § 6, provides no protection to a legislator charged 1I7d. at 182. with criminal conduct although his imprisonment 108 Id. at 178. would prevent him carrying out his congressional "o9Id. at 177. duties.) "oId. at 185. "'6383 U.S. at 181, 182. 11'Id. COMMENTS [Vol. 68 conspiracy charge, the Court remanded the The Supreme Court disagreed. It first con- case with instructions to allow the Government sidered the general question of whether Con- the opportunity to prove its case without the gressmen could be prosecuted for taking bribes use of evidence "offensive to the Speech or in exchange for promises relating to legislative 1 2 Debate Clause.' acts. It concluded that neither the speech or The Court in both Kilbourn and Johnson fo- debate clause itself nor prior judicial interpre- cused on the need to protect the independence tations of the clause indicated that such a prose- of the legislature and gave the speech or debate cution was impermissible. Johnson made clear clause a relatively expansive interpretation. In that Congressmen may be prosecuted for later cases, however, the Court has arguably cut crimes "provided that the Government's case back on the scope of the federal legislative priv- does not rely on legislative acts or the motiva- ilege, focusing less on the need for legislative tion for legislative acts.''17 Other cases taught independence and more on the separation of that legislative acts include only "those things powers concept which is the cornerstone of the generally said or done in the House or Senate American system of government. In United in the performance of official duties and ... States v. Brewster," 3 for example, the Court the motivation for those acts.""' The Court stated: distinguished sharply between these purely leg- islative activities and the "political" activities [A]lthough the Speech or Debate Clause's his- which Congressmen perform "in part because toric roots are in English history, it must be interpreted in light of the American experience, they have come to be expected by constituents, and because they are a means of developing and in the context of the American constitu- '' 9 tional scheme of government rather than the continuing support for future elections . 1 Al- -English parliamentary system. We should bear though entirely "legitimate" and "appropriate," in mind that the English system differs from such activities, according to the Court, had ours in that their Parliament is the supreme never been protected by the speech or debate authority, not a coordinate branch. Our speech clause. or debate privilege was designed to preserve In no case has this Court ever treated the Clause legislative independence, not supremacy. Our as protecting all conduct relating to the legis- task, therefore, is to apply the Clause in such a lative process. In every case thus far before way as to insure the independence of the legisla- this Court, the Speech or Debate Clause has ture without altering the historic balance of the 4 been limited to an act which was clearly a part of Government." three co-equal branches of the legislative process-the due functioning of 2 0 the process.1 Brewster involved the prosecution of a Con- gressman for accepting a bribe "in return for While a broader interpretation might be drawn being influenced in his performance of official out of the "flavor of the rhetoric and the sweep acts in respect to his action, vote, and decision of the language" of prior decisions, neither the on postage rate legislation which might at any "precise Nwords" nor the "sense of those cases" time be pending before him in his official ca- mandated such an interpretation. 2 ' The grant pacity.""' His indictment had been dismissed of privilege under the clause was extremely by the district court which held that the speech broad even when the clause was interpreted or debate clause, "particularly in view of the narrowly, and the Court refused to expand it. interpretation given that Clause by the Su- We would not think it sound or wise, simply out preme Court in Johnson," protected the Con- of an abundance of caution to doubly insure gressman against "any prosecution for alleged ' 6 legislative independence, to extend the privilege bribery to perform a legislative act."" beyond its intended scope, its literal language,

I Id. On remand the Government did not pursue "7Id. at 512. the conspiracy charge. Johnson was convicted on the 118Id. 119Id. conflict of interest count and his conviction was af- 20 firmed by the circuit court. 419 F.2d 56 (4th Cir. ' Id. at 515-516. "Due functioning" of the legisla- 1969), cert. denied, 397 U.S. 1010 (1970). tive process has become the shorthand phrase for 113408 U.S. 501 (1972). limiting the scope of legislative privilege to essentially "' Id. at 508. (footnotes omitted). voting, committee reports, hearings and speeches in 3 " Id. at 502. Congress. 6 " Id. at 504. 121Id. at 516. 1977] A SPEECH OR DEBATE PRIVILEGE

and its history, to include all things22 in any way Having thus determined that prosecution for related to the legislative process.1 bribery was not forbidden simply because the charge "related" to the official conduct of a The fact that Congress itself had the power to legislator, the Court went on to consider the punish its members for misconduct did not per- specifics of the indictment brought against leave suade the Court that the judiciary should Brewster. It found that no inquiry into legisla- that task solely within congressional hands. The tive acts was necessary in order for the Govern- Court felt Congress to be "ill-equipped" to han- ment to make out a prima facie case against the dle the essentially judicial tasks of investigation, Congressman. The illegal act was the taking of trial and punishment of wrongdoers. 12 Fur- a bribe, an act which could not possibly be thermore, if Congress actively attempted to po- characterized as legislative in nature. Further- lice and punish its members for conduct not more, there was no need for the Government to directly related to the legislative process, the show that Brewster had actually kept his prom- Court felt that individual legislators would be ise to vote or to perform any other legislative "at the mercy of an almost unbridled discretion act. of the charging body that functions at once as accuser, prosecutor, judge and jury from To sustain a conviction it is necessary to show whose decision there is no established right of that appellee solicited, received, or agreed to review.' 24 Independence of the legislature receive money with knowledge that the donor would be more likely to be compromised in was paying him compensation for an official act. such a situation than by a conventional criminal Inquiry into the legislative performance itself is trial which provides rigorous procedural safe- not necessary; evidence of the Member's knowl- guards. edge of the alleged briber's illicit reasons for paying the money is sufficient to carry the case Finally, the Court was not convinced that the 27 to the jury independence of the legislature was actually threatened by the potential for executive har- The Court dismissed with exceptional brevity assment through the initiation of prosecutions the argument that any inquiry into an alleged for bribery. Historically, "the check and bal- bribe of a legislator for performing a legislative ance mechanism, buttressed by unfettered de- act was in essence an inquiry into the Congress- bate in an open society with a free press, has not man's motive and thus prohibited underJohn- encouraged abuses of power or tolerated them son. long when they arose."'25 Public reaction to attempts to intimidate the legislature would That argument misconstrues the concept of mo- limit the possibility of executive abuse of crimi- tivation for legislative acts. The Speech or De- nal statutes designed to assure honest govern- bate Clause does not prohibit inquiry into illegal ment. But, even if some possibility of abuse conduct simply because it has some nexus to existed, the Court felt it had to be balanced legislative functions. In Johnson, the Court held against the potential for harm to the system if that, on remand, Johnson could be retried on Congressmen could not be prosecuted for brib- the conspiracy-to-defraud count, so long as evi- ery. dence concerning his speech on the House floor was not admitted. The Court's opinion plainly The purpose of the Speech or Debate Clause is implies that had the Government chosen to retry to protect the individual legislator, not simply Johnson on that count, he could not have ob- for his own sake, but to preserve the independ- tained immunity from prosecution by asserting ence and thereby the integrity of the legislative that the matter being inquired into was related process. But financial abuses by way of bribes, to the motivation for his House speech. 28 perhaps even more than Executive power, 12 would gravely undermine legislative integrity There were vigorous dissents in Brewster and defeat the right of the public to honest and the case has been extensively criticized by representation .126 7 "2 Id. at 527. 2 8 122 Id. 1 1d. at 528. The Court was answering Justice 2 Id. at 518. 24 Brennan, who dissented. ' Id. at 519. 129 Id. at 529 (Brennan, J., dissenting); Id. at 551 2 Id. at 523., (White, J., dissenting). Justice Douglas joined both 126 Id. at 524. dissenting opinions. COMMENTS [Vol. 68

3 commentators.' ' But the Court has not re- resentatives, and held the Senator's aide pro- treated. Although it continues to maintain that tected as well. But, in defining the scope of the the clause will be read "broadly to effectuate its Senator's privilege, and the commensurate purposes," it has also continued in the cases privilege of his aide, the Court was considerably subsequent to Brewster carefully to circumscribe less willing to expand the literal words of the the area of activity protected by the privilege. clause. Gravel v. United States'3' is particularly on point. In the Gravel case, Senator Gravel had read Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either most of the "Pentagon Papers," which were House. Insofar as the Clause is construed to classified government documents, into the reach other matters, they must be an integral Congressional Record during a special mid- part of the deliberative and communicative night sub-committee meeting. Rodberg, the processes by which Members participate in com- Senator's aide, was subpoened to testify before mittee and House proceedings with respect to the grand jury concerning arrangements being the consideration and passage or rejection of made by the Senator to have the papers re- proposed legislation or with respect to other published privately. He was also to be ques- matters which the Constitution places within the 4 tioned regarding the Senator's source for the jurisdiction of either House.I classified documents. Rodberg challenged the It would not extend the privilege beyond subpoena and Senator Gravel intervened, "pure speech or debate" unless it was necessary claiming that requiring Rodberg to testify on to "prevent indirect impairment of such delib- these matters would violate his speech or debate erations.."135 The Court did not think that pri- privilege. The Court agreed with the Senator vate publication was essential to the business of insofar as he claimed the speech or debate the Senate. It was not a legislative act, and clause to protect himself against civil or criminal questioning on the matter would not violate the liability for things said or done at the sub-com- Senate's independence nor expose it to the mittee hearing. The Court further agreed with threat of intimidation by the executive branch. Gravel that his aide was privileged with regard Similarly, the Court felt the grand jury could to legislative acts which would have been privi- question the aide on the Senator's leged if the Senator had personally performed source for the classified documents "as long as no legisla- them. It noted that it was 1' 6 tive act was implicated by the questions.' literally impossible, in view of the complexities "Rodberg's immunity, testimonial or otherwise, of the modern legislative process, with Congress extends only to legislative acts as to which the almost constantly in session and matters of legis- Senator himself would be immune.' 1 37 It there- lative concerns constantly proliferating, for fore remanded the case with instructions to Members of Congress to perform their legisla- fashion a protective order forbidding the ques- tive tasks without the help of aides and assist- tioning of Rodberg only to that extent.13 ants; that the day-to-day work of such aides is so 34 critical to the Members' performance that they 1 Id. at 625. 135 must be treated as the latter's alter egos; and that 36 Id. if they are not so recognized, the central role of 1 Id. at 628. the Speech or Debate Clause- to prevent intimi- 137 Id. '38Another recent case dation of legislators by the Executive and ac- which continues the limit- countability before a possibly hostile judiciary- ing approach to the definition of legislative act is Doe 3 2 v. McMillan, 412 U.S. 306 will inevitably be diminished and frustrated. (1973). In Doe, suit was brought against members of Congress and the Public 133 Printer and Superintendent of Documents for the Thus it refused to take a "literalistic"' ap- publication of a libel in a congressional committee proach to the language of the speech or debate report which was distributed publicly. Members of clause, which only mentions Senators and Rep- the committee were immune from suit for the mate- rial included in their original report, since the mak- 13 See, e.g., Ervin, The Gravel and Brewster Cases: An ing of the report was a legislative act. However, gen- Assault on Congressional Independence, 59 VA. L. REv. eral publication and distribution of their report was 175 (1973); Comment, Brewster, Gravel and Legislative not protected. Although the Court agreed that public Immunity, 73 COLUM. L. REV. 125 (1973). dissemination of the information in congressional re- .3-408 U.S. 606 (1972). ports served an important function, it did not think 132 Id. at 616-17 (citation omitted). 133 such dissemination was an "integral part of the delib- d.at 617. erative and communicative processes by which Mem- 19771 A SPEECH OR DEBATE PRIVILEGE

The clear import of these federal speech or preme Court articulated the importance of the debate clause cases, taken together, is that the principle with regard to judges in Bradley v. legislative privilege embodied in the clause is Fisher in 1871:14a While mindful of the English not without limit. [lit is a general principle of the highest impor- and colonial common law origin of the clause, tance to the proper administration ofjustice that the Court has always been careful to interpret it a judicial officer, in exercising the authority in light of its American constitutional context. vested in him, shall be free to act upon his own Thus, although it has recognized that the privi- convictions, without apprehension of personal lege is one method by which the framers of the consequences to himself. Liability to answer to Constitution attempted to ensure effective sep- everyone who might feel himself aggrieved by aration of powers, it has also recognized that the action of the judge, would be inconsistent the clause cannot be read so as to allow one of with the possession of this freedom, and would the three co-equal branches to achieve suprem- destroy that independence without which noju- diciary can be either respectable or useful. 4' acy over the other two. In making the necessary compromises between these competing consid- Twenty-four years later, the Court made clear erations, the Court has at times perhaps drawn that the same reasoning applies to high ranking arbitrary or even inconsistent lines between executive officials: 139 protected and unprotected activity. But im- We are of the opinion that the same general plicit in all its decisions is the recognition of the considerations of public policy and convenience fact that in spite of the complexities of the which demand for judges of courts of superior modern legislative process and in spite of the jurisdiction immunity from civil suits for dam- need for legislative independence, legislative ages arising from acts done by them in the privilege is necessarily limited by the general course of the performance of theirjudicial func- constitutional scheme of government. tion, apply to a large extent to official communi- cations made by heads of Executive Depart- Comparison of the Constitutional Privilege with ments when engaged in the discharge of duties the Doctrine of Official Immunity imposed upon them by law. The interests of the people require that due protection be accorded Legislators are not the only officials who en- 4 3 joy a privilege from suit for those things "said to them in respect of their official acts.' or done ... in the exercise of the functions of More recently, in Barr v. Matteo, 44 the Court [their] office."140 Other governmental officials reiterated: have a similar, though narrower, privilege un- der the common law doctrine of official immu- [O]fficials of government should be free to exer- nity. The principal focus of the doctrine of cise their duties unembarrassed by the fear of official immunity is the need to protect the damage suits in respect of acts done in the independence of government officials. The Su- course of those duties-suits which would con- sume time and energies which would otherwise hers participate in committee and House proceed- be devoted to governmental service and the ings." Id. at 314. threat of which might appreciably inhibit the fearless, vigorous, and effective administration [W]e cannot accept the proposition that in order 45 to perform its legislative function Congress not of policies of government.' only must at times consider and use actionable material but also must be free to disseminate it to The Court then expressly extended the concept the public at large, no matter how injurious to of official immunity to protect lesser officials, private reputation that material might be. noting that Id. at 316. The Congressmen were immune from suit for the order of publication under the rationale of [t~he privilege is not a badge or emolument of Kilbourn, but the printer who had carried out the unprotected order was held answerable for the libel. exalted office, but an expression of a policy 139 Numerous commentators have criticized the Court on this basis. See, e.g., Ervin, The Gravel and 4' 80 U.S. 335 (1871). The common law origin of Brewster Cases: An Assault on Congressional Independ- this privilege for judges extends back to the time of ence, 59 VA. L. REV. 175 (1973); Reinstein & Silver- Edward III. Scheuer v. Rhodes, 416 U.S. 232, 239 n.4 glate, Legislative Privilege and the Separation of Powers, (1974). 86 HARV. L. REV. 1113 (1973); Comment, Brewster, "12 80 U.S. at 347. Gravel and Legislative Immunity, 73 CoLuM. L. REV. 125 143 Spalding v. Vilas, 161 U.S. 483, 498 (1896). 144 360 U.S. 564 (1959). (1973). 45 140Coffin, 4 Mass. at 27. ' Id. at 571. COMMENTS [Vol. 68

designed to aid in the effective functioning of considerable breadth of authority and discre- government. The complexities and magnitude tion are protected by absolute immunity. of governmental activity have become so great Judges and high ranking executive officials, for that there must of necessity be a delegation and example, as long as they act within the arguable redelegation of authority as to many functions, bounds of their jurisdiction and authority, can- and we cannot say that these functions become not be questioned with regard to their motiva- less important simply because they are exercised 4 by officers of lower rank in the executive hierar- tion for a particular act. s Members of school 14 6 149 5 0 1 5 1 chy. boards policemen, and even governors, on the other hand, must be acting in good Although strikingly similar to the speech or faithM2 in order for their actions to be privi- debate privilege in this emphasis on the need leged. for government officials to be independent, of- 146 With respect to judges this principle was estab- ficial immunity is narrower than speech or de- lished in Bradley v. Fisher, 80 U.S. 335, 347 (1871): bate protection in two important ways: some Nor can this exemption of the judges from civil officials enjoy only a qualified immunity, and liability be affected by the motives with which regardless of whether the immunity is absolute their judicial acts are performed. The purity of their motives cannot in this way be the subject of or qualified, it protects the official only against judicial inquiry. civil actions. The immunity is granted in order Id. at 372. to ensure that these officials can and will carry In Spalding v. Vilas, 161 U.S. 483, 498 (1896), the out their duties. It is limited in recognition of Court spelled out the purpose of the absolute immu- the fact that an absolute immunity for all offi- nity in detail: [I]t is clear . . .that [a high ranking executive cials in all situations is both unnecessary to officer] cannot be held liable to a civil suit for achieve the purposes of immunity and intolera- damages on account of official communications ble in light of the great harm that can be done made by him pursuant to an act of Congress, and to individuals by officials who abuse their in respect of matters within his authority, by power. As a check against this abuse the privi- reason of any personal motive that might be alleged to have prompted his action; for personal lege of some officials is "conditioned on the motives cannot be imputed to duly authorized good faith of the actor and the purpose of his official conduct. In exercising the functions of conduct."' 47 In general, only those officials with his office, the head of an Executive Department, keeping within the limits of his authority, should 146Id. at 572-73. States have long recognized offi- not be under an apprehension that the motives cial immunity for the actions of state and municipal that control his official conduct may, at any time, governmental officials. See, e.g., Mills v. Denny, 245 become the subject of inquiry in a civil suit for Iowa 584, 63 N.W.2d 222 (1954) (qualified immunity damages. It would seriously cripple the proper for mayor and city council members); Tanner v. and effective administration of public affairs as Gault, 20 Ohio App. 243, 153 N.E. 124 (1925) (abso- entrusted to the executive branch of the govern- lute privilege for county commissioners alleged to ment, if he were subjected to any such restraint. have slandered plaintiff); Bolton v. Walker, 197 '49 Wood v. Strickland, 420 U.S. 308 (1975). Mich. 699, 164 N.W. 420 (1917) (absolute immunity to 150 Pierson v. Ray, 386 U.S. 547 (1967). commission member testifying before tax commis- '5' Scheuer v. Rhodes, 416 U.S. 232 (1974). sion); Ivie v. Minton, 75 Ore. 483, 147 P. 395 (1915) 152 The good faith requirement contains both sub- (qualified privilege for councilman testifying before jective and objective elements. In Wood v. Strickland, council committee of which he was not a member); 420 U.S. 308, 321-22 (1975) the Court explained with Weber v. Lane, 99 Mo. App. 69, 71 S.W. 1099 (1903) respect to school board members that (qualified privilege of alderman to investigate com- [tihe official ... must be acting sincerely and plaint against citizen). State officials have also been with a belief that he is doing right, but an act held to retain their immunity when sued in federal violating a student's constitutional rights can be court. See, e.g., Wood v. Strickland, 420 U.S. 308 no more justified by ignorance or disregard of (1975) (qualified immunity for school board members settled, indisputable law .... than by the pres- sued under 42 U.S.C. § 1983); Scheuer v. Rhodes, 416 ence of actual malice .... [A] school board U.S. 232 (1974) (qualified immunity for governor and member ... must be held to a standard of con- national guardsmen under § 1983); Nelson v. Knox, duct based not only on permissible intentions, 256 F.2d 312 (6th Cir. 1958) (qualified privilege of city but also on knowledge of the basic, unquestioned council in passing ordinances); Cobb v. City of Mal- constitutional rights of his charges. den, 202 F.2d 701 (Ist Cir. 1953) (qualified privilege of Good faith is not always a prerequisite to privilege for city council members for "acts done by them ... in lesser officials when the charge is defamation and the performance of their official duty as they understood official has been addressing himself to matters within it." Id. at 707 (Magruder, C. J., concurring). his authority. Compare Shellburne Inc. v. New Castle 147 HARPER & JAMES, THE LAW oF TORTS, 294 n.2 County, 293 F. Supp. 237, 244 (D. Del. 1968) ("Mem- (1956). bers of lower legislative bodies [zoning board] . .. 1977] A SPEECH OR DEBATE PRIVILEGE

With respect to criminal liability, official im- of the Government's case against the judge was munity provides no testimonial privilege, and the manner in which he conducted his judicial 59 officials may be held criminally liable for their duties. Similarly, in United States v. Manton, 1 a conduct. Most courts have felt that the lack of criminal conspiracy conviction was upheld an exemption from criminal liability will not against ajudge for his participation in a scheme interfere with the policy behind the doctrine of under which he was paid to exercise his judicial official immunity. As one court explained in power in favor of certain parties, without re- answer to a United States Attorney's claim of gard to the merits of their case. Evidence of his immunity to a mail fraud charge: participation through his meetings with coun- sel, his scheduling of cases, the manner in (C]ivil suits are easily adaptable for harassment which he presided at trial, and the fact that he purposes since any individual can institute a civil rendered decisions in favor of defendants was suit against another .... Without immunity, ju- dicial officials who dissatisfy certain people all held admissible with no discussion of immu- might easily be plagued by a rash of civil suits nity. predicated on their official conduct. ... In con- More recently, in O'Shea v. Littleton, 0 the Su- trast, this criminal prosecution was initiated by preme Court in strong dictum indicated that government officials in solemn performance of judges may be criminally liable for the exercise their duties and only after the defendants were of their judicial duties in such a way as to wil-. indicted by a grand jury. Clearly, the potential fully deprive individuals of their constitutional for harassment . . . is not present in criminal 53 rights. In O'Shea, suit was brought for injunc- prosecutions.I tive relief against a state judge and magistrate Even judges, who enjoy exceptionally broad alleged to be depriving plaintiffs, citizens of immunity, are not exempt from criminal liabil- racially tense Cairo, Illinois, of their constitu- ity. While it is still possible to find quotations to tional rights through discriminatory setting of the effect that judges cannot be made crimi- bond, sentences, and jury fees in the criminal 154 cases that came before them. Although refus- nally liable for their judicial acts,' it may be 61 doubted that such a rule was ever uniformly ing to grant the injunction,' the Court made followed. For instance, in Braatelien v. United special note of the fact that state officials, in- States,'55 ajudge was convicted of "conspiracy to cluding judges, were subject to criminal penal- defraud the United States by corruptly admin- ties under federal law for willful discrimination that deprives a citizen of his constitutional istering or procuring the corrupt administra- 62 tion of an Act of Congress."'5 6 Although the rights.' In contrasting a judge's immunity court noted that the crime charged was "distinct from civil suit with his liability in criminal pros- from his official acts"'57 and might have been ecutions, the Court observed: "the judicially "consummated without the performance of a fashioned doctrine of official immunity does not reach 'so far as to immunize single judicial act on his part' 58 the central core criminal con- duct proscribed by an Act of Congress'. ''j ' Al- usually have a qualified immunity for defamation.") though dictum, the words cannot be dismissed with Tanner v. Gault, 20 Ohio App. 243, 245-46, 153 as insignificant. The N.E. 124, 125 (1925) ("[T]here is a well-established Court was taking special general rule ... that libelous or slanderous matter note of the fact, and issuing a clear warning to published in due course of legislative proceedings is all state officials, that the doctrine of official absolutely privileged, and will not support an action, immunity does not afford protection against although made maliciously and with knowledge of criminal prosecutions. falsity, if pertinent or relevant to matters under in- quiry, and that this broad and comprehensive rule The doctrine of official immunity is not, of includes within its scope the proceedings of all legisla- tive bodies, state or municipal.") 159107 F.2d 834 (2nd Cir. 1938). '0 United States v. Anzelmo, 319 F. Supp. 1106, 160414 U.S. 488 (1974). 1118-19 (E.D. La. 1970) (citation omitted). 161 The Court refused to grant relief on grounds 14 See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 239 that plaintiffs had failed to present an actual case or n.4 (1974) (quoting 6 W. HOLDSWORTH, A HISTORY OF controversy since none of them was actually ENGLISH LAW 235 (1927); 30 AN!. JUR., JUDGES § 50 threatened by the alleged discriminatory conduct of (1969). the state officials. 153147 F.2d 888, (8th Cir. 1945). 162 18 U.S.C. § 241 (1970) makes it a criminal of- 5 ' Id. at 895. fense to conspire to deprive a citizen of his constitu- 5 7 1 Id. tional rights. 158 Id. 16 414 U.S. at 503 (quotingGravel,408 U.S. at 627). COMMENTS (Vol. 68 course, limited only to judicial and executive committee. Brandhove, by means of a petition, officials. It has frequently been applied to offi- attempted to convince the California legislature cials who act in a legislative capacity, such as not to appropriate funds for the committee, municipal aldermen, county and regional com- charging that it had not only used him as a missioners, and members of other legislative or "tool" to smear a particular candidate for of- quasi-legislative boards.164 But, because most fice, but had also conspired with the opposition state legislators have the protection of state con- candidate's campaign committee for the same stitutional speech or debate privilege, the con- purpose. The committee summoned 'Brand- cept of official immunity is rarely needed to hove to testify and explain both his charges guard their independence. In fact, one might and certain conflicts with his previous testi- assume that since immunity for legislators has mony. Although Brandhove appeared before so long been a part of the constitutional frame- the committee, he refused to testify. He was work of American government, the doctrine of prosecuted for contempt, but the prosecution official immunity has been totally supplanted was later dropped. 68 He then brought suit by the broader concept of speech or debate against the committee under §1983 of the Civil protection. Arguably, however, the doctrine of Rights Act, 69 alleging that the hearing to which official immunity for legislators is still a viable he had been called to testify had not been held alternative for determining the scope of a legis- for any legislative purpose, but to "intimidate lator's privilege in those situations in which a ...silence . . . deter and prevent him from constitutional privilege is unavailable. effectively exercising his constitutional rights of free speech and to petition the Legislature for Recognition of a FederalLegislative Privilege redress of grievances . 1.7."' The Court of Outside the Federal ConstitutionalContext Appeals for the Ninth Circuit held that the As noted earlier,' 65 a federal common law complaint stated a cause of action, but the Su- legislative privilege could be formulated along preme Court reversed. It treated the issue lines exactly parallel to the speech or debate raised by the case as essentially one of statutory privilege of the federal constitution, or it could construction: "Did Congress by the general lan- be patterned after the more limited privilege of guage of its 1871 statute mean to overturn the official immunity. 66 The argument that the lat- tradition of legislative freedom achieved in ter approach is more appropriate is predicated England by Civil War and carefully preserved in part on a number of Supreme Court cases in the formation of State and National govern- dealing with state legislators and legislatures. ments here?"'' Not only do these cases themselves suggest that The Court answered its own question in the state legislators retain only official immunity negative. It reviewed in detail the development when no specific constitutional provision pro- of the concept of legislative privilege in Eng- tects them, but a comparison of the Court's land and the United States, focusing principally approach and language in these cases with that on the importance of the privilege in protecting in the speech or debate clause cases also leads to the independence of the legislature, and the the same conclusion. widespread adoption of the privilege at the There is only one Supreme Court case, Ten- state level. Noting that legislative privilege was 67 ney v. Brandhove,1 which deals directly with the a "tradition . . . well grounded in history and subject of legislative privilege outside the con- reason," the Court was convinced that Con- text of a suit against federal congressmen. The gress, itself a staunch advocate of legislative case is confusing because the source of the leg- freedom, did not mean to limit the right of islative privilege which the Court found appli- legislators to act in their traditional legislative cable is never specifically identified. Tenney sphere by subjecting them to civil suits under was chairman of a California state legislative the general language of §1983.172

164 See citations in notes 146 & 152 supra. 168The jury failed to return a verdict and the com- " See text following note 52 supra. mittee did not pursue the prosecution. Id. at 371. 166 It is conceivable that a court could decide to 169U.S.C. § 1983 (1970). recognize no privilege whatsoever. The likelihood of '0 341 U.S. at 371. this appears so remote that it is not considered in this '7' Id. at 376. comment. "'2 Id. The Court has subsequently held that § 1983 167341 U.S. 367 (1951). does not abrogate the traditional immunity of other 1977] A SPEECH OR DEBATE PRIVILEGE

The Court then considered whether the Ten- legislators traditionally have power to act,' ' 76 ney committee had been acting within a sphere they were immune from suit under §1983. of traditional legislative activity. It first noted At the time of the suit, the California consti- that the fact that Chairman Tenney might have tution had no speech or debate privilege, and had an "unworthy purpose" in calling Brand- nowhere in the opinion does the Court suggest hove before the committee would not destroy that the federal constitutional privilege was his legislative privilege. 7 3 The privilege would being applied to the state legislators. There- have no value if a legislator were subject to fore, it seems clear that the Court was adopting liability based on speculations as to his motives some sort of federal common law immunity to for a particular act. Motive was irrelevant as protect Tenney and his committee. What is far long as the legislator was acting within the tra- less clear, however, is whether the immunity ditional legislative sphere. Furthermore, in re- applied was commensurate with the federal viewing the actions of the Tenney committee, speech or debate privilege. Some support for the Court noted that legislative investigations the view that the Tenney privilege is equivalent are "an established part of representative gov- to speech or debate protection is at least implied 74 ernment,"' and on the facts before it there by the fact that the Court cites Tenney in most of appeared to be substantial reason for the com- the recent speech or debate clause cases in mittee to have recalled Mr. Brandhove, regard- which the scope of the federal privilege is dis- less of the personal motives of the Chairman. cussed.17 7 The position is further strengthened by the Court's own words in United States v. Legislative committees have been charged with Johnson that the Tenney losing sight of their duty of disinterestedness. In Court "viewed the state times of political passion, dishonest or vindictive legislative privilege [applied to Tenney] as motives are readily attributed to legislative con- being on a parity with the similar federal privi- duct and are as readily believed. Courts are not lege.... '178 However, despite the Court's ref- the place for such controversies. Self-discipline erences to Tenney in the federal speech or de- and the voters must be the ultimate reliance for bate clause cases, a careful examination of the discouraging or correcting such abuses. The language of Tenney and of the Court's citations courts should not go beyond the narrow confines to the case both within and without the context of determining that a committee's inquiry may be of the speech or debate privilege strongly sug- fairly deemed within its province. To find that a gests that the protection granted Tenney was committee's investigation has exceeded the derived not from the constitutional bounds of legislative power it must be obvious protection that there was a usurpation of functions exclu- afforded federal legislators but from the com- sively vested in the Judiciary or the Executive. mon law doctrine of official immunity. The present case does not present such a situa- First, it should be noted that the language of tion. Brandhove indicated that evidence previ- the Tenney Court does not determine the scope ously given by him to the committee was false, of the privilege applied. The catch phrase of and he raised serious charges concerning the the Tenney opinion was that the state legislators work of a committee investigating a problem were immune from civil liability under §1983 within legislative concern. The Committee was for "acts done within their sphere of legislative entitled to assert a right to call the plaintiff be- 79 175 activity."' These words are, of course, strik- it and examine him. fore 7 6 1 Id. at 379. Thus, the Court concluded, since the Califor- 177See, e.g., Gravel, 408 U.S. at 624; Brewster, 408 nia legislators were "acting in a field where U.S. at 514;Johnson, 383 U.S. at 179. 178 383 U.S. at 180. See also, Powell v. McCormack, 395 U.S. 486 (1969) in which the Court stated "This governmental officials. See, e.g., Wood v. Strickland, Court has on four occasions, Dombrowski v. East- 420 U.S. 308 (1975) (qualified immunity for school land, 387 U.S. 82 (1967); United States v. Johnson, board members not abrogated); Scheuer v. Rhodes, 383 U.S. 169 (1966); Tenney v. Brandhove, 341 U.S. 416 U.S. 232 (1973) (qualified immunity for governor 367 (1951); and Kilbourn v. Thompson, 130 U.S. 168 and officials of national guard not abrogated); Pier- (1881) been called upon to determine if allegedly son v. Ray, 386 U.S. 547, 554 (1967) (absolute immu- unconstitutional action taken by legislators or legisla- nity of judges and qualified immunity of police offi- tive employees is insulated from judicial review by the cers not abrogated). Speech or Debate Clause." 395 U.S. at 501. But see 173341 U.S. at 377. Brewster, 408 U.S. at 516, n.10 in which the Court said 174Id. 75 Tenney was not a speech or debate clause case. 1 Id. at 377-78 (footnotes omitted). 179341 U.S. at 376. COMMENTS [Vol. 68

ingly similar to those used by the Court in v. McMillan,'9 a case in which the Court had to Kilbourn to hold that under the speech or de- deal specifically with the parameters of both the bate clause federal Congressmen are immune speech or debate privilege and official immu- from liability for "things generally done in a nity, the court used Tenney only in its discussion session of the House ... in relation to the of official immunity. 191 business before it."' 80 They are also close to the One might argue, however, that even if the words of the Court injohnson and Gravel, both Court has "aligned" Tenney with its official im- of which held that federal legislators could not munity cases, such an alignment is not neces- be prosecuted for their "legislative acts."18' sarily dispositive of the issue of a legislator's However, the language of Tenney is also quite criminal liability. Official immunity is, after all, similar to that used by the Court to describe the a flexible doctrine which varies in scope with scope of the doctrine of official immunity. For the type of official involved. When applied to example, in Bradley, the Court found judges to legislators it might, therefore, be broad enough be immune from liability "for acts done by them to give them immunity from civil and criminal in the exercise of their judicial functions."" 2 liability rather than just the traditional civil im- And, in Spalding, the Court held executive offi- munity granted to judicial and executive offi- cials immune while "exercising the functions of cials. Outside the constitutional context, where [their] office ... within the limits of [their] balance of power considerations must be given authority.' 8 s Thus, one must go beyond the considerable weight, there is no apparent rea- language of the Court to determine the nature son for granting such significantly broader im- of the privilege it recognized. munity to legislators, however. The purpose of The Government, in its brief before the three official immunity is to safeguard the independ- judge panel of the Seventh Circuit in the Craig ence of the official. That purpose is adequately case, suggested that Tenney must be viewed as served by limiting the possibility of civil suits. an official immunity case because the Supreme Criminal prosecutions, regardless of the official Court has "aligned" Tenney with other official accused, simply do not provide the same "po- immunity cases.18 4 For example, in Pierson v. tential for harassment"'912 as civil suits. Ray, 85 in which the Court held that §1983 did In O'Shea v. Littleton, 193 the Supreme Court not abolish the common law official immunity gave some indication that it not only recognizes of judges, the Court referred to Tenney in its an official immunity for state legislators which discussion of common law immunities as if Ten- is different from speech or debate protection, ney were a traditional common law immunity but also that, at least for purposes of a federal 186 case. criminal prosecution, it views all forms of offi- Similarly, in both Wood v. Strickland81 7 and cial immunity as equal. O'Shea, it will be re- Scheuer v. Rhodes, 188 two cases involving the civil membered, was a suit for injunctive relief liability of state officials under § 1983, the Court against a state judge and magistrate in which referred to Tenney in the course of its analysis of the Court, albeit in dictum, went out of its way the official immunity limitations on §1983, with- to warn that state officials may be criminally out distinguishing the grant of immunity in liable for exercise of their official duties in such Tenney as broader than that applied in suits 8 90412 U.S. 306 (1973). This case is also discussed in against nonlegislative officials. ' Finally, in Doe note 138 supra. 191 In Doe, both a Congressman and the govern- 180 103 U.S. at 204. ment printer were sued for publication of a libel in a 181 408 U.S. at 619; 383 U.S. at 185. committee report. The Court discussed the Con- 182 80 U.S. at 347. gressman's immunity under the speech or debate 8 161 U.S. at 498. clause. It dealt with the printer's immunity under the 184Brief for the United States at 18-21. doctrine of official immunity. Tenney was cited only in 185386 U.S. 547 (1967). the section of the case dealing with the printer's im- 186 The Court stated: "The legislative record gives munity. It was cited for three specific propositions: 1) no clear indication that Congress meant to abolish "official immunity has been held applicable to offi- wholesale all common-law immunities. Accordingly, cials of the Legislative Branch," 412 U.S. at 319 n.13; this Court held in Tenney v. Brandhove that the immu- 2) the scope of the official immunity conferred is not nity of legislators for acts within the legislative role the same for all officials, id. at 319; 3) the scope of was not abolished." Id. at 554 (citation omitted). immunity is tied to the range of official authority, id. 187 420 U.S. 308 (1975). at 320. 188 416 U.S. 232 (1974). 192 United States v. Anzelmo, 319 F. Supp. at 1119. 189 420 U.S. at 316-21; 416 U.S. at 243-44. 193414 U.S. 488 (1974). 1977] A SPEECH OR DEBATE PRIVILEGE

a way as to violate federal law. Far from except- son court expressly noted that neither Kilbourn ing legislators from this warning, the Court nor Tenney nor any other case "cast bright light made specific reference to their potential liabil- on the question." 196 ity: In most of the speech or debate clause cases, however, the Court's use of Tenney can proba- [W]hatever may be the case with respect to civil bly be best understood as a reference to a case liability generally, or civil liability for willful cor- in which the Court has treated analogous, but ruption, we have never held that the perform- ance of the duties of judicial, legislative, or exec- not identical, issues. Official immunity and utive officers, requires or contemplates the im- speech or debate privilege overlap a great deal. munization of otherwise criminal deprivations If the Court has not adequately distinguished 94 of constitutional rights.1 between the two in the speech or debate clause cases it is probably because on the particular This statement that legislators are so liable facts of the case such a distinction was simply stands in direct contrast to the holding of the not crucial. Since official immunity in its broad- Court in Johnson that under the federal speech est form is narrower than speech or debate or debate clause the legislative conduct of fed- immunity, the protection recognized under the eral legislators cannot constitute either the basis former would clearly be recognized under the for a criminal prosecution or evidence that a latter. Thus, in the context of the speech or crime was committed. The implication seems debate cases, there is normally no need meticu- clear-state legislators do not enjoy the same lously to distinguish Tenney as recognizing only broad protection given federal legislators un- the narrower immunity. The language of Ten- der the speech or debate clause. ney is directly and easily transferable to discus- 97 If, as the above mentioned cases seem to sions of speech or debate protection.1 indicate, Tenney merely recognized the tradi- Bond v. Floyd, 98 a case which does not even tional common law official immunity of legisla- mention Tenney, also helps support the argu- tors, why does the Court cite it in the speech or ment that the Court does not view the privilege debate clause cases as if the privilege it ex- granted the legislators in Tenney as the equiva- tended were commensurate with the speech or lent of speech or debate protection. Julian debate privilege? There is no clear answer to Bond was elected to the Georgia legislature for this question. In some cases it appears that the a special one year term to commence in January Court simply cites Tenney inaccurately. For in- 1966.1 99 Because of certain statements he had 20 0 stance, in Gravel, the Court stated: made about the conduct of the Vietnam War, Thus, voting by Members and committee re- the Georgia House, after a hearing at which ports are protected; and we recognize today- as Bond testified, concluded that he could not the Court has recognized before, Kilbourn v. honestly take either the oath of office required Thompson, 103 U.S. at 204; Tenney v. Brand- by the Georgia constitution or the oath to sup- hove, 341 U.S. 367, 377-378 (1951)- that a port the Constitution of the United States. The Member's conduct at legislative committee hear- clerk refused to administer either oath and the ings, although subject to judicial review in var- House refused to seat him. Bond sued for in- ious circumstances, as is legislation itself, may not be made the basis for a civil or criminal 196383 U.S. at 180. judgment against a Member because that con- 197 Similarly, since on the duct is within the 'sphere of legitimate legislative facts the Tenney commit- 9 tee's conduct was protected under the narrowest view activity.' 5 of official immunity (the committee was clearly en- gaged in legislative business and there was ample Clearly neither Kilbourn nor Tenney said any- evidence of a legislative purpose in recalling Bran- thing about criminal liability. Tenney was care- dhove to explain his prior testimony), there was no fully limited to civil liability under §1983 and need to distinguish between any broader speech or Kilbourn did not raise the issue of criminal pros- debate privilege and the doctrine of official immu- nity. ecutions. The immunity of federal legislators 198 385 U.S. 116 (1966). under the federal clause from possible criminal 199He was subsequently re-elected in a special elec- liability for their legislative acts was not settled tion held to fill the vacancy caused by the House's untilJohnson was decided in 1966, and theJohn- refusal to seat him. He was re-elected in the regular November, 1966 election as well. Id. at 128. " Id. at 503 (emphasis added) (citations omitted). 200 The statements are reproduced in the Court's 195408 U.S. at 624. opinion. Id. at 121-22. COMMENTS [Vol. 68

junctive relief under §1983201 against the did it discuss whether state legislative function- speaker and speaker pro-tem, certain officers aries, such as the clerk of the Georgia House, of the House, and several members as repre- might be sued although members of the House sentatives of the membership of the entire themselves could not. In short, the Court did body. not suggest that a state legislator sued under The state argued that the Georgia constitu- federal laws had any sort of speech or debate tion specified the qualifications for the office of protection. state legislator, that the oath provisions consti- This disposition of Bond is simply inexplica- tuted part of those qualifications, and that the ble if the Court conceives of Tenney as affording House had the power to "look beyond the plain state legislators a privilege commensurate with meaning of the oath provisions . . . to [deter- speech or debate protection. At the federal mine] whether a given Representative may take level such a suit clearly cannot be maintained. the oath with sincerity. '20 2 Although admitting In Powell v. McCormack,20° the Court explicitly so that it could not exclude a duly elected repre- held. Congressman Powell, although duly sentative on racial or other clearly unconstitu- elected and meeting all the qualifications for tional grounds, the state argued that the oath the office of Representative, was not permitted requirement was not unconstitutional and, to take the oath of office pending a House therefore, "there should be no judicial review committee investigation into certain of his activ- of the legislature's power to judge whether a ities. After its investigation the committee rec- prospective member may conscientiously take ommended that Powell be seated as a Member, the oath required by the State and Federal Con- but censured. The full House, however, voted stitutions.1 20 3 Bond, on the other hand, main- to exclude him from membership. Powell then tained that the judgment of the House that he brought suit for injunctive and declaratory re- could not honestly take the oaths of office vio- lief against the Speaker, Clerk, Sergeant-at- lated his first amendment rights. Arms, Doorkeeper, and certain named Mem- The Supreme Court agreed that the legisla- bers of the entire House. 20 7 The Court immedi- ture had infringed Bond's right to free speech: ately dismissed the action against the Congress- men as violative of their speech or debate privi- [W]e do not quarrel with the State's contention lege. The action was allowed to proceed, how- 20 ° that the oath provisions of the United States and ever, against the House employees. Georgia Constitutions do not violate the First Of course, Powell was decided afterBond, but Amendment. But this requirement does not au- thorize a majority of state legislators to test the for purposes of this discussion, the timing of sincerity with which another duly elected legisla- the two cases is largely irrelevant. The distinc- tor can swear to uphold the Constitution. 2 tion between a suit against employees of the House and Members of the House themselves Bond's statements did not violate any law. Al- which the Powell Court recognized and which though the state could require an oath of loy- the Bond Court did not even mention, was es- alty, that oath could not be used to "[limit] its tablished as early as 1881 in Kilbourn, and that 20 9 legislators' capacity to discuss their views of lo- was reaffirmed in Tenney. If 2'05 same distinction cal or national policy. Tenney held that state legislators are protected Nowhere in the opinion did the Court men- by an immunity based on the speech or debate tion the holding of Tenney that under §1983 clause, the Bond Court certainly would have Congress did not extinguish the immunity of been bound to deal with the distinction. Thus, legislators acting in their traditional sphere of 206 395 U.S. 486 (1969). legislative activity. Nor did it distinguish the 2107Although the Congress which had excluded him two cases on the basis that Brandhove had sued had ended and a new Congress was in session, the for damages and Bond was asking for injunc- Court held that Powell's claim for back salary pre- tive relief. It did not mention Tenney at all. Nor vented the case from being moot. Id. at 500. 208 Id. at 504-06. As in Kilbourn, the Court left for 201 Also 28 U.S.C. §§ 1331, 1343(3), 1343(4), 2201, future decision the question of whether suit could be and 42 U.S.C. § 1971(d), 1988 (1970). maintained against the Congressmen if no other rem- 202 385 U.S. at 130. 2 edy was available and no House employee had partic- 3Id. at 131. ipated in the action with the Congressmen. Id. at 506 214Id. at 132. n.26. 205 Id. at 135. 209 341 U.S. at 378. 1977] A SPEECH OR DEBATE PRIVILEGE by totally ignoring the question of the immunity the prosecution of two of the named defend- of the Georgia legislators, the Court implicitly ants under 18 U.S.C. §§241 and 242,214 and an indicated that whatever legislative privilege injunction prohibiting the investigatory activity state legislators enjoy in federal court, it is con- of the committee. Holding that the plaintiffs siderably more limited than speech or debate had stated a cause of action, the court noted: protection. Another indication thatBond may be cited for Although the federal courts will recognize and respect the state's right to exercise through its such a proposition is the failure of the Powell legislature broad investigatory powers, never- Court to distinguish or even mention Bond in theless these powers are not unlimited and it connection with the question of legislative privi- remains the duty of the federal courts to protect lege. Since it cited Bond in regard to other rights from inva- 210 the individual's constitutional matters, the Court was clearly aware of the sion either by state action or under color disposition of the case. Yet obviously it felt no thereof. Especially is this true in the sensitive need to explain why a suit against the members areas of First Amendment rights and racial dis- of the Georgia legislature was allowable and suit crimination. Where there exists the clear possi- against the Members of the federal Congress bility of an immediate and irreparable injury to was not. The most probable reason for this lack such rights by state legislative action the federal courts have exercised their equitable powers in- of even an explanatory footnote is simply that 215 ... injunction. the Court saw no conflict between the two cases cluding because the privilege of state legislators is not The court rejected the defendants' argument commensurate with speech or debate privi- 21 1 that Tenney indicated immunity from suit: lege. "That case holds that legislators when acting 2 12 Jordan v. Hutchenson, a Fourth Circuit case within the scope of their authority are not liable decided prior to Bond, explicitly holds that the for money damages, notwithstanding their con- immunity of state legislators is more limited duct may have been motivated by personal spite than the speech or debate protection given fed- or vindictiveness. ' 21 6 It was not applicable to a eral legislators. In Jordan, plaintiffs alleged that case in which injunctive relief was asked in or- a committee of the Virginia legislature was act- der to protect federal rights. In such a case, ing as part of a conspiracy of all elected officials according to the court, the federal courts have in the state to "intimidate, discourage and the power to review the actions of the legisla- impede the plaintiffs and all Negro citizens of ture and to grant appropriate relief. That Virginia from using the courts as a means of power cannot be limited by a claim of legislative ending the practices of racial segregation in privilege. 21 3 that state. They sought an order requiring Of course the Supreme Court has never been 210 Bond was cited in reference to the claim of moot- as explicit as the Fourth Circuit on this issue. ness. 395 U.S. at 499. But the fact that it has granted injunctive relief 211Another case which illustrates the difference in against state legislatures and their members the Court's treatment of federal legislators is Eastland with no discussion of legislative privilege when v. United States' Servicemen's Funds, 421 U.S. 491 (1975). In Eastland the Court refused to quash a sub- legislative privilege stands out as a crucial issue poena issued by a congressional committee investigat- ing a servicemen's club, although the members ar- tempted to expand the coverage of its laws against gued that compliance with the subpoena would vio- champerty, barratry and maintenance to include the late their first amendment rights. The Court found activities of civil rights organizations within the state. the actions of the committee and its members im- The particular committee cited in Jordan was origi- mune from judicial interference because of the nally established to oversee "the laws of the Common- speech or debate clause. Analysis of the speech or wealth relating to the administration of justice ... debate privilege was central to the Court's decision. particularly those relating to the statutorily redefined Compare not only Bond, but also Denny v. Bush, 367 offenses of champerty, maintenance, etc ...."Id. at U.S. 908 (1961) affg per curiam Bush, Orleans Parish 602. Its activities were later expanded to cover legal School Board, 191 F.Supp. 871 (E.D.La. 1961). In ethics and the unauthorized practice of law. Plaintiffs Denny the Court affirmed with no discussion of legis- alleged that the committee by use of its investigatory lative privilege, the lower court injunction against a power was interfering with their efforts as lawyers to state legislature attempting to evade court ordered eliminate segregation. desegregation. 214 18 U.S.C. §§ 241, 242 (1970). 212 323 F.2d 597 (4th Cir. 1963). 215 323 F.2d at 601. 213 216 1 Id. at 599. The Virginia legislature had at- Id. at 602. COMMENTS (Vol. 68

in similar cases at the federal congressional tween the executive and legislative sections of level is a strong indication that the Court does government. In England, it arose in the battle not recognize a similar privilege at both levels. for supremacy between the Crown and Parlia- ment. In the United States, the principle was CONCLUSION adapted to ensure the separation and balance A Brief Return to the Craig Opinion of power between two equal and clearly com- The dilemma facing the Seventh Circuit in peting branches of the federal government. In Craig was to determine from both the history of both cases it was principally the power of the legislative privilege and the relevant Supreme competing executive branch that the privilege Court decisions whether state legislators ac- was designed to curb. cused of violating federal criminal laws enjoy Within any federal system there is, of course, some form of federal common law privilege. potential for competition between the separate Obviously, neither history nor Supreme Court levels of government, just as various branches decisions provide clear guidance, and more at the same level may compete for power. But than one conclusion can be, and was, drawn under the Constitution when authority is spe- from the same source material. However, the cifically delegated to the federal government, decision of the full court 2 7 seems to reflect the supremacy clause resolves the issue of com- more accurately both the history of legislative petition for power. Concern for the independ- privilege and the principles articulated by the ence of a state legislature, on the other hand, Supreme Court than does the earlier panel de- involves the relationship within the state gov- cision. ernment between legislative and executive The principal difference between the panel branches, a tension properly controlled by state majority and the full court majority opinions is speech or debate privileges. Therefore, the one of emphasis. The panel majority relied question that should be asked in federal prose- almost exclusively on the broad language of the cutions of state legislators is not whether the speech or debate clause cases, and it stressed independence of a state legislature may in some the need for legislative independence at all lev- way be affected, but whether the federal gov- els of government. It argued that in a govern- ernment has the authority to act. Whatever ment of limited powers - with those powers not questions may once have been raised with re- specifically granted the federal government re- spect to the federal government's authority to served to the states under the tenth amend- act in matters of criminal law enforcement, that federal power is now clearly established under ment-the states had an essential role to play in ' the operation of the governmental system. the commerce clause" and other explicit grants of authority such as the power to estab- Fearing that the independence of the state leg- 9 islatures would be compromised if the federal lish the post office. Both the Hobbs Act and government could threaten state legislators the Mail Fraud Statute under which the legisla- tors in Craig were prosecuted have been specifi- with criminal liability for their legislative acts, 22 0 against constitutional attack. the panel considered a broad legislative privi- cally upheld lege, equivalent to the speech or debate clause, 218 Cases upholding the power of the federal gov- to be necessary in order to eliminate that poten- ernment to define and punish criminal activity under tial threat. pthe commerce clause, in conjunction with the neces- sary and proper clause The problem with the panel's singular em- are numerous. For broad interpretation of the reach of this power, see Perez v. phasis on independence is that it ignores both United States, 402 U.S. 146 (1971) in which the Court the implications of the supremacy clause and upheld the constitutionality of a congressional statute the separation of powers function served by the directed at "loan sharking" activities over the vigor- speech or debate clause at the federal level. The ous dissent of'Justice Stewart who maintained that the crime was purely local in nature and not within the concept of legislative privilege developed as a power of the federal government to punish. consequence of the competition for power be- 21"For a discussion of the federal power under this clause, see Cushman, National Police Power under the 217 All references to the full court decision in this Postal Clause of the Constitution, 4 MINN. L. REv. 402 section specifically emcompass both Judge Tone's (1920). concurrence in the panel decision and the full court 220 See, e.g., United States v. Staszcuk, 517 F.2d 53 opinion on rehearing. The latter essentially adopted (1975) (Hobbs Act); United States v. Mirabelle, 503 the former. F.2d (1065, 8th Cir. 1974) (mail fraud). 1977] A SPEECH OR DEBATE PRIVILEGE

Both these statutes have also been construed to common law privileges. Its tone recalls Wig- 221 reach the illegal activities of state officials, more's reflections on the public's right to ' and there is no reason why the activities of state "everyman's evidence. "222 legislators alone should be exempted. In contrast to the panel decision, the full The investigation of truth and the enforcement of testimonial duty demand the restriction, not court decision in Craig focuses not only on the the expansion, of... privileges. They should be separation of powers function of the speech or recognized only within the narrowest limits re- debate privilege, but also on the limitations of quired by principle. Every step beyond these both that privilege and the doctrine of official limits helps to provide, without any real neces- immunity. It implicitly recognizes that inde- sity, an obstacle to the administration of jus- 2 pendence is not the sole factor to be considered tice .23 in determining the nature of a legislator's privi- lege. Almost all government officials enjoy This same philosophy is implicit in the decisions some sort of privilege from suit premised on of the Supreme Court dealing with legislative their need for independence in order to carry privilege, if one considers the entire spectrum out their duties. But not all officials are equally of cases in which the Court has dealt, directly or immune. The differences in protection are re- indirectly, with the issue. The Court has not extended the privilege "beyond its intended lated both to the nature of the particular offi- 12 24 cial'sjob and to the requirements of the consti- scope. Where there is no real necessity for tutional system, requirements which vary when an expansive interpretation of privilege, none the issue is not intra-federal power, but federal- has been given. Similarly, the final decision of state relations. the court in Craig recognizes that in the context The full court opinion also reveals a more of federal criminal prosecutions of state legisla- cautious attitude toward the creation of federal tors there is no necessity for an expansive inter- pretation of legislative privilege, and none 221 See, e.g., United States v. Kuta, 518 F.2d 947 (7th Cir. 1975) (alderman charged under Hobbs Act); should be given. United States v. Price, 507 F.2d 1349 (4th Cir. 1974) (chairman of county council charged under Hobbs 222 8 WIGMORE EVIDENCE § 2192 (Mc Naughten Act); Shusan v. United States, 117 F.2d 110 (1941) rev. 1961). (member of board of commissioners charged under 223 Id. 224 Brewster, mail fraud statute). 408 U.S. at 516. THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 68, No. 1 Copyright © 1977 by Northwestern University School of Law Printed in U.S.A.

THE RIGHT OF AUTONOMY: CONSTITUTIONAL LIMIT TO PLENARY FEDERAL POWER

As every United States citizen ought surely to based and which is becoming increasingly ex- be aware, government in this country functions plicit in the decisions of the Supreme Court. through two entities, the state and federal gov- ernments. Since these institutions are by defini- I. HISTORY OF STATE-NATIONAL CONFRONTA- tion separate forms, resisting ready integration, TION OVER POWER those regions where they interface have been in continuous flux from before the birth of the While the tenth amendment is not the only Constitution.' The struggle between them has marker in the Constitution concerning the rela- resulted in a steady erosion of the position of tionship of state and national power, with rare 6 the state vis-a-vis the national government as an exceptions its language has provided the para- independent political body. 2 Indeed, since the digm of judicial analysis. Assuming that power beginning of the Republic, an erratic but steady was reserved to the states or people unless a decline in the power of the states has been delegation by either of those groups could be 7 recognized by the courts.3 So complete is this found in the Constitution, the crucial question, traditionally, was one of defining the word decline that the classic expression of the struc- "power". ture of state-national relations, the tenth amendment, has been shorn of all substance Following the adoption of the Constitution, it 4 and called a mere "truism" . Yet, to consider took only thirty years of constitutional interpre- the shift of power as ended save for the even- tation before the potential of national power tual dismantlement of state governmental ma- was exponentially increased. While the Articles chinery, is to overlook both the vitality of the of Confederation had limited the national gov- Constitution as a source of preservation of state ernment solely to its "express powers," the independence and the ability of the Supreme Constitution of 1789 contained no such limiting Court to invigorate it. While the struggle for power has long since been decided, there now Nothing, in my judgment, could have a greater remains the need to deal with the state's right to tendency to destroy the independence and au- 5 autonomy upon which the Constitution was tonomy of the States . .. than the doctrine as- serted in this case, that Congress can exercise I See remarks of Messrs. Patterson, Lansing, Ran- coercive authority over judicial officers of the dolph, and Hamilton, J. MADISON, NOTES OF DE- State in the discharge of their duties under State BATES IN THE FEDERAL CONVENTION OF 1787, 118-39 laws. (1966). 100 U.S. 339, 358 (1879) (Field, J., dissenting). 2 Kurland, Foreword: Equal in Origin and Equal in 6 For example, Dartmouth College v. Woodward, Title to the Legislative and Executive Branches of Govern- 17 U.S. (4 Wheat.) 518 (1819), concerned the contract ment, 78 HARV. LAW REV. 143,144 (1964) (hereinafter clause, art. I, § 10. cited as Kurland). One commentator has interpreted the tenth 3 Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), amendment to mean: where the Supreme Court found that the Constitu- The States of course possess every power that tion had shorn the states of sovereign immunity from government has ever anywhere exercised, ex- suit and a state could thus be sued by its citizens. cept only those powers which their own constitu- I "The Amendment [the Tenth] states but a truism tions or the Constitution of the United States that all is retained which has not been surrendered." explicitly or by plain inference withhold. They United States v. Darby, 312 U.S. 100,112 (1941). The are the ordinary governments of the country; tenth amendment provides that "[t]he powers not the federal government is its instrument only for delegated to the United States by the Constitution, particular purposes. nor prohibited by it to the States, are reserved to the W. WILSON, CONSTITUTIONAL GOVERNMENT IN THE States respectively, or to the people." U.S. CONST. UNITED STATES 184 (1908). amend. X. ' Article II of the Articles of Confederation stated: 5 The labeling of this right as one of autonomy was Each State retains its sovereignty, freedom and arbitrarily selected by the author to express the na- independence, and every power, jurisdiction ture of the purpose which it serves in the federal and right, which is not by this conference ex- system. The word was used in a related context by pressly delegated to the United States, in Con- Justice Field in Ex parte Virginia: gress assembled. 1977] AUTONOMY

language. McCulloch v. Maryland' extended the ment became the guarantor of certain rights of definition of "power" to include those powers the people against state government intrusion power reasonably implied via the necessary and or interference. Unquestionably, federal 6 proper clause of the Constitution. 0 Loss of had been expanded at the cost of the states.1 What remained to be determined was how far power by the states during this period primarily 7 concerned those powers outgoing in nature; that expansion reached into the states.1 that is, powers which extended or had the po- Also during this period, the power of the tential to expand a state's impact beyond its state to affect outgoing enterprises and rights boundaries. Thus, McCulloch circumscribed the continued to be scrutinized and regulated. The state's power to tax. Five years later, in Gibbons classic example of the reach of federal power is v. Ogden," the federal commerce power 2 was that which traces interstate commerce. While sufficient to invalidate a state's attempt to exer- early restrictive distinctions denied the applica- cise its police power, the classic pre-emption tion of federal power to private actions,' 8 the case.' 3 Control of slavery, insofar as it was a restrictions proved to be little more than both- question of citizenship, was found to be beyond ersome delaying actions, only postponing fed- 4 the power of the states to inhibit.' eral action. State power as a bar proved to be a These pre-Civil War decisions expanded fed- more effective limitation. Hammer v. Dagen- eral power at the expense of the state, but only hart'9 and the decisions which found various insofar as the state partook of activities that New Deal acts unconstitutional20 emphasized might interfere with those which had been del- the continuing belief that there existed substan- egated to the national government. Within tive powers retained by the states which could their own realm, the states remained independ- defeat otherwise legitimate national actions. ent.' 5 The respective reach of national and state While the Civil War answered whether the taxing powers continued to be a field of uncer- Constitution was a dissolvable compact, its tain bounds. In Dobbins v. Commissioners of Erie progeny-the thirteenth, fourteenth, and fif- County ,21 following McCulloch, the states were teenth amendments-posed grave questions as found to be incompetent to tax the salary of a to the ordering of power between the state and federal official. Conversely, in Collectorv. Day, 22 national governments. Now the federal govern- the national government was denied the right to tax the salary of a state judicial officer. Yet, 9 17 U.S. (4 Wheat.) 316 (1819). In McCulloch, the 23 Supreme Court found the states to be incapable un- in South Carolina v. United States, the national der the Constitution to tax property owned by the government was found to be capable of taxing national government. certain functions which the state had assumed 10 Congress shall have Power.. to make all in the exercise of its police power. The sym- Laws which shall be necessary and proper for tax system was breaking the carrying into Execution the foregoing metrical nature of the Powers, and all other Powers vested by this Con- down, as the needs of the national government stitution in the Government of the United began to take precedence. States, or in any Department or Officer thereof. U.S. CO ST. art I, § 8. 16"They [the XIII, XIV, and XV Amendments] 1122 U.S. (9 Wheat.) 1 (1824). were intended to be, what they really are, limitations 12 U.S. CONST. art. I, § 8, cl. 3. of the power of the States and enlargements of the '3See Comment, The Preemption Doctrine: Shifting power of the Congress." Ex parte Virginia, 100 U.S. Perspectives on Federalism and the Burger Court, 75 339, 345 (1879). COLUM. L. REv. 623 (1975). 17 The Fourteenth Amendment withdrew from 14 See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 the States powers theretofore enjoyed by them (1842), where a Pennsylvania statute making illegal to an extent not yet fully ascertained, or rather, the willful taking of people out of the state to enslave to speak more accurately, limited those powers them was found to be unconstitutional. See also, Dred and restrained their exercise. Scott v. Sanford, 60 U.S. (19 How.) 393 (1856). Twining v. New Jersey, 211 U.S. 78, 92 (1908). "5The powers exclusively given to the federal IsSee, e.g, United States v. E. C. Knight, 156 U.S. 1 government are limitations upon state author- (1895). ities. But, with the exception of these limita- 19247 U.S. 251 (1918). tions, the states are supreme; and their sov- 20 Carter v. Carter Coal Co., 298 U.S. 238 (1936); ereignty can be no more invaded by the action United States v. Butler, 297 U.S. 1 (1936); Schecter of the general government, than the action of Poultry v. United States, 295 U.S. 495 (1935). the state governments can arrest or obstruct the 21 41 U.S. (16 Pet.) 435 (1842). course of the national power. 22 78 U.S. (11 Wall.) 113 (1870). Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 570 (1832). - 199 U.S. 437 (1905). COMMENTS [Vol. 68

As to those powers and prerogatives of the sec. 4. That expresses the full limit of National state which were internal in application, pri- control over the internal affairs of a State. 0 marily the police power and its concern for the The last health and safety of its citizens, the entry of- significant attempt to reject the ex- panded constitutional power fered to the national government by the Civil of the national government ' 3 1 War Amendments was bitterly fought and re- came with the "infamous strik- ing down of a dozen pieces strictively perceived. While the Supreme Court of New Deal legisla- in The Slaughterhouse Cases24 recognized the tion. That process came abruptly to an end in 1937, however, and goals and reasoning of those amendments, it the question of the distribu- refused to invigorate them.25 Indeed, in those tion of power between the federal and state rare instances where the Court did act,2" the governments began to be resolved. outcry was loud and fierce. Similarly, attempts The substantive impact of the tenth amend- to reach the criminal systems of the states via ment did not long survive the Court's turna- bout. By 1941, the amendment reached incorporation of the provisions of the Bill of 2 2 Rights into the fourteenth amendment due "truism" status, as the Supreme Court finally process provision were soundly defeated. decided that a plenary power of the national government could not be buffered or moder- When the electric chair was first introduced, 33 attempts were made to attack it as a cruel and ated by any powers inherent in the states. There were no such powers. unusual punishment. The Court rejected such an approach, holding that: The Supreme Court for the first time in- truded in a state criminal proceeding in Powell 34 The Fourteenth Amendment did not radically v. Alabama. The states' ability to mold and change the whole theory of the relations of the determine their own criminal procedure began state and Federal governments to each other, to erode at a quickening pace in the years that and of both governments to the people." followed. The same day that an attempt to ex- tend the fourth amendment exclusionary rule An attempt to incorporate the right against self- to the states was defeated,- a confession ac- 28 incrimination reached a like fate. Indeed, in cepted by a state supreme court 6 was thrown 29 South Carolina v. United States, the Court went out by the United States Supreme Court as so far as to limit the federal power to intervene being coercively obtained in violation of the due within a state to the provisions of a single con- process provision of the fourteenth amend- stitutional clause, ment.37 As state criminal proceedings became more encumbered with federal rights to pro- [t]he Constitution provides that "the United tect, they became more subject to federal re- States shall guarantee to every State in this Un- 8 view as to those rights.3 ion a republican form of government," Art. IV, 30 Id. at 454. If strictly adhered to, this would have 24 83 U.S. (16 Wall.) 36 (1873). effectively removed state action from judicial over- 2 The dissent clearly acknowledged the course the sight since the Court had held previously that art. future would eventually take: IV, § 4 was directed not to the judiciary, but, rather, It [the power via the war amendments] is neces- the Congress. Luther v. Borden, 48 U.S. (7 How.) 1 sary to enable the government of the Nation to (1849). secure everyone within its jurisdiction the rights 31 See Blaustein & Mersky, Rating Supreme Court and privileges enumerated, which, according Justices, 58 A.B.A. J. 1183, 1186 (1972). to the plainest considerations of reason and jus- 32 See note 4 supra. tice and the fundamental principles of the social I Wickard v. Filburn, 317 U.S. 111 (1942). compact, all are entitled to enjoy. Without such 34 287 U.S. 45 (1932). The Court found that the authority any government claiming to be na- failure of the trial court to appoint counsel for the tional is glaringly defective. defendant in a capital case was a violation of due 83 26U.S. (16 Wall.) 129 (Swayne, J., dissenting). process as required by the fourteenth amendment. Ex parte Virginia, 100 U.S. 339 (1879). Virginia " Wolf v. Colorado, 338 U.S. 25 (1949). had a statute requiring its judges to venire only re- 36 Watts v. State, 226 Ind. 655, 82 N.E.2d 846 sponsible men. One state judge had used this formu- (1948). lation to eliminate all blacks. In this case, the Su- 27 Watts v. Indiana, 338 U.S. 49 (1949). preme Court upheld federal intervention. 31 The decision in Frank v. Mangum, 237 U.S. 309 27 In re Kemmler, 136 U.S. 436, 448 (1890). (1915), first opened federal courts for habeas corpus 28 Twining v. New Jersey, 211 U.S. 78 (1908). review of state actions in limited circumstances. 29 199 U.S. 437 (1905). These circumstances were progressively broadened 1977] AUTONOMY

The Warren Court ended judicial hesitation tionale was that a federal right was being con- in applying provisions of the Bill of Rights to tested and that the states, which had been re- state criminal proceedings through the four- luctant to introduce these safeguards without a teenth amendment. The exclusionary rule con- constitutional mandate, would not be reliable in cerning evidence obtained from searches and ensuring their proper breadth. The result was seizures illegal under the fourth amendment the judicial extension of habeas corpus review was applied to the states in 1961.39 The provi- in federal court of state court constitutional sions of the fifth amendment (prohibition determinations .52 against double jeopardy4 and privilege against The internal structure of the state had like- self-incrimination 4 ) and the sixth amendment wise always been free from federal oversight. 42 4 3 (right to a speedy trial, right to counsel, Judicial attacks based on the Guarantee Clause 44 right to a jury trial for a criminal prosecution of the Constitution 3 were rebuffed on the and the right to confront witnesses45), as well as premise that the power to carry out the guaran-4 the derivative protections of Miranda v. Ari- tee of the section was legislative in nature. 46 zona, were held to apply to the states. This all changed in 1962, when Baker v. Carr55 The Court has gone beyond the state's crimi- held the principle of "one man-one vote" appli- nal processes and has extended federal power cable to the apportionment of state legislatures to reach the state's power to educate its citi- through the Equal Protection Clause of the zens,4 provide recreation ,48 establish political fourteenth amendment.56 Three years later, subdivisions 49 and even constitute its own legis- federal mandates concerning procedures to be 50 lature. These extensions, however, were not followed in the registration of the electorate by based on the plenary power of the federal gov- the states were upheld by the Supreme Court in ernment but on the oversight responsibilities Louisiana v. United States 7 and South Carolinav. given it by the Civil War Amendments. Katzenbach ." Indeed, the oversight processes As more and more constitutional safeguards validated in Katzenbach relegated the state to the were being grafted onto the state criminal proc- status oT' a mere administrative unit of the na- ess, there arose the notion that these rights tional government for purposes of voter regis- required a federal forum of review to ensure tration, as the ministerial control of the United their exercise and enforcement." The basic ra- States Justice Department was broad in scope, scrupulous in detail, and affirmative in nature. in Brown v. Allen, 344 U.S. 391 (1953), Fay v. Noia, These decisions mark the highwater crest of 372 U.S. 391 (1963), and Kaufman v. United States, national manipulation of state institutions. To a 394 U.S. 217 (1969). But, see Stone v. Powell, 428 large extent, the intrusion of federal policy and U.S. 465 (1976). See also, text accompanying notes power into these reaches was a response to the 116-18 infra. "9Mapp v. Ohio, 367 U.S. 643 (1961). inability of the state institutions to shift as 9 40 Benton v. Maryland, 395 U.S. 784 (1969). See quickly as national expectations. The result also, Ashe v. Swenson, 397 U.S. 436 (1970). was an abiding distrust in the competence of 41 Malloy v. Hogan, 378 U.S. 1 (1964). the states to act as they "ought" and the destruc- 42 Klopfer v. North Carolina, 386 U.S. 213 (1967). 43 The right was first extended to indigent felony 5 See note 38 supra. defendants in Gideon v. Wainwright, 372 U.S. 335 3 "The United States shall guarantee to every State (1963), and to indigent misdemeanor defendants sub- in this Union a Republican Form of Government." ject to incarceration in Argersinger v. Hamlin, 407 U.S. CONST. art. IV, § 4. U.S. 25 (1972). 54 Highland Farms Dairy v. Agnew, 300 U.S. 608 44 Bloom v. Illinois, 391 U.S. 194 (1968). (1937). 45 Pointer v. Texas, 380 U.S. 400 (1965). 55369 U.S. 186 (1962). 46 384 U.S. 436 (1966). See generally, Kamisar, A 56 The principle ultimately was extended to Dissentfrom the Miranda Dissents: Some Comments on the Congressional districts. The very nature of the Senate "New" Fifth Amendment and the Old "Voluntariness" Test, precluded application of such a formula to Senate 65 MICH. L. REV. 59 (1966). elections. For the Senate was not designed to be 47 Brown v. Board of Education, 347 U.S. 483 representative of the population, but it was to repre- (1954). sent the equal sovereignty of the states. See THE 48 Evans v. Newton, 382 U.S. 296 (1966); Gilmore v. FEDERALIST No. 62 (A. Hamilton). City of Montgomery, 417 U.S. 556 (1974). 57 380 U.S. 145 (1965). 40 Gomillion v. Lightfoot, 364 U.S. 339 (1960). 383 U.S. 301 (1966). 'o Baker v. Carr, 369 U.S. 186 (1962). 9 Kurland, The Supreme Court and the Attrition of " Younger v. Harris, 401 U.S. 37, 58 (1971). State Power, 10 STAN. L. REV. 274, 282-283 (1958). COMMENTS [Vol. 68

tion of the ability of the states to develop their ability of the national government to set stan- own ordering of priorities .60 The powers relat- dards and conditions to which the state govern- ing to sovereignty-all the power which made ments must conform, the states as institutions an institution a state-have thus come to lodge have become superfluous without a visible within the national government. The states, change in the document which they caused to lacking all effective substantive power, can be have established in the first instance. There seen as mere political sub-units of the national exists the existential dilemma of the states: all government. If transformation of the federal effective power having passed from them; national government into a unitary national what is the meaning and purpose of their exist- government has not yet occurred, the reason is ence? not lack of power, but lack of need or desire to exercise that power." II. PERCEPTIONS OF AUTONOMY There is no longer any struggle between the The judicial response to this judicially cre- state and national governments as to where the ated paradox has not yet been recognized for powers lie. The delegated powers of the federal what it is: a failure to separate the questions of government have become the functional equiv- internal state power and internal state integ- alent of all the powers: rity.6 4 Sovereignty is two-pronged in nature. It consists of power and discretion. Power allows There are today few, if any, governmental func- the sovereign to effectuate its wishes with as tions performed by the states that are not subject little external interference as possible. Discre- either to the direct control of the national gov- ernment or to the possibility of preemption by tion is the sovereign's ability to order its priori- the national government. The concept of sepa- ties, to determine the manner in which it will rate sovereignties within this country is largely a achieve them, and to compose the nature of its matter of history.2 own infrastructure. 65 The battles which have taken place between Thus, between the final recognition and ac- the state and federal governments have been ceptance of the plenary nature of the delegated perceived to have been fought over power. The 3 powers of the national government and the resolution of this question of power was 60 When the state governments fail to satisfy the thought to be dispositive of the question of needs of the people, the people appeal to the autonomy, but not that of the existence of state Federal Government. Whether the question is sovereignty. The reverse is true. one of the advancement of human knowledge The power of the states has passed irretrieva- through research, of law and order or the right bly from the scene. This power is a necessary of all persons to equal protection of the law, the requirement for sovereignty. Justice Douglas Federal Government need become involved only when the states fail to act. misses this point when he argues in New York v. 6 6 (quoting Chief Justice Warren in A. MASON & W. United States that state sovereignty must exist BEANEY, THE SUPREME COURT IN A FREE SOCIETY unless expressly given up and that until explic- 310 (1959).) itly abandoned, it retains the strength to buffer 61 Such a change may indeed be what is required in 67 order for the United States to respond to the require- federal power. Similarly,Justice Rehnquist, in ments and needs of its citizens and the exigencies National League of Cities v. Usery, 6S rests his anal- generated by the international community. Yet, inso- far as our Constitution is the law from which our 64 Although the language and intent of National system emanates and since its integrity is crucial for League of Cities v. Usery, 426 U.S. 833 (1976) is the the continuing integrity of the system, the uses to closest comprehension yet. which it is put must remain in harmony with the spirit 6' Discretion is the internal orientation of the state. of the document. For the states to become only inte- Thus, within constitutional parameters, the state has grated components within a master system, without the discretion to determine the rank order and distri- character of their own, a constitutional amendment bution of its resources, e.g. whether it will pursue an should be required, not judicial fiat or legerdemain. expansive highway building program or pursue a 62 Kurland, supra note 2, at 163. All that remains to policy of fiscal restraint, or indeed, whether it will be determined is how much power Congress cares to have any policies at all. Moreover, discretion reaches exercise. See Murphy, State Sovereignty and the Consti- the internal structure of the state, as the state is the tuition -A Summary View, 33 Miss. L. REV. 353, 358 determiner of how it will organize itself. 66 326 U.S. 572 (1946). (1962). See also, Kurland, supra note 2, at 144. 67 1 See United States v. Darby, 312 U.S. 100, 115 Id. at 594-96. (1941). 68 426 U.S. 833 (1976). AUTONOMY ysis on "states as states" and fails to recognize Justice Frankfurter in New York v. United that what he means is not state sovereignty at States73 recognized that: all. Sovereignty in substance has been disem- There are, of course, State activities and state- boweled by the loss of power. The response of owned property that partake of uniqueness the South to the order for school desegregation from the point of view of intergovernmental and the reaction of the nation to the South, in relations. These inherently constitute a class by consequence, clearly demonstrate that state themselves. 4 sovereignty, if it exists at all, is only a hollow 69 shell once power has passed. These activities and properties and those al- However, the second of the components luded to in Chief Justice Stone's concurring 75 which comprise state sovereignty -discretion - opinion are but a single facet of the right of has not been destroyed. Nothing in the passing autonomy. Not only are the symbols and seat of of power (except, perhaps, its coercive poten- the state necessary to the autonomy of the state, tial)70 has served to strip the states of their but the very process of decision-making by the discretion. Power is not necessary to its exer- state is subsumed within the right. This deci- cise, for discretion is self-sufficient, represent- sion-making process is the ability of the state to ing the core of the spirit of the institution; it will determine in what areas and in what manner it decide in what manner it will act, unless forced will act to serve its citizenry. This process allows to do otherwise. Clearly, the states will decide in each state to retain its character, express its what manner they ought to act. This preroga- values, and yet fulfill its constitutional require- tive is all that remains from their former sover- ments. Autonomy gives each state an opportu- eign status. Yet it does remain, and while, like nity for a separate personality. While the po- the prerogatives of the national government, it tential for separate personalities is not the goal must conform to certain constitutional require- of the right of autonomy, it is a highly viable ments, it, too, is constitutional in stature and means of perceiving its existence. may act to protect itself, much like the right of If taken to extreme, the right to autonomy privacy serves to insulate the prerogatives of could just as easily destroy the national govern- the individual. 7' The residuary discretion of the ment as the national government is currently 7 2 state is the state's right of autonomy. eviscerating the states. 76 Thus, it is a right which must weigh against other rights and pow- 69 This is the question, or rather, non-question, of ers found in the Constitution and does not interposition, the placing of a state's sovereignty be- provide the states with an absolute protection. tween the people of the state and a federal determi- The right of autonomy for the states does offer nation. See 1 RACE REL. L. REP. 437-47; Cooper v. Aaron, 358 U.S. 1, 18 (1958); Bush v. Orleans Parish them, however, the constitutionally required School, 364 U.S. 500 (1961) (per curiam). See also, opportunity to preserve themselves. Ableman v. Booth, 62 U.S. (21 How.) 506 (1859); U.S. v. Peters, 9 U.S. (5 Cranch) 115 (1809). 70 For example, the power of the purse, (i.e., con- ceiling on the benefits it distributed through its ditional spending.) See Steward Mach. Co. v. Davis, AFDC program was upheld by the Supreme Court. 301 U.S. 548 (1937). Justice Stewart's opinion for the majority character- 71See Griswold v. Connecticut, 381 U.S. 479 (1965). ized the Maryland action as a state's attempt "to rec- 72 Cf. Monaco v. Mississippi, 292 U.S. 313, 323 oncile the demands of its needy citizens with the finite (1934). That the right to autonomy is of constitutional resources available to meet those demands." Id. at dimension ought to be without challenge. The states 472. This ability to make such determinations, free formed the Constitution. The states and the people from unwarranted external intervention is the heart ratified and accepted the Constitution. Its existence of the discretion, the autonomy, of the states. Dan- was for the states' protection, not their extermina- dridge also provides an example of the constitutional tion. The constitutional protections for and concern- limits of the right to autonomy. For, as the dissent ing the States (art. IV); the constitutional prohibi- vigorously argues, the manner in which the state tions against the states (art. I. § 10); and the nature exercised its discretion was a violation of the equal and responsibilities necessitated in choosing the legis- protection, required by the fourteenth amendment. lative (art. I, § 4 and amend. XVII) and the executive Id. at 508 (Marshall. J., dissenting). (art. II, § 1) all require that the states retain the ability 7 326 U.S. 572 (1946). 74 to exercise their discretion in order to achieve or not 7 Id. at 582. achieve certain ends. 5 Id. at 587-88. In Dandridge v. Williams, 397 U.S. 471 (1970), an 76 See South Carolina v. United States, 199 U.S. attempt by the state of Maryland to place a maximum 437, 454-56 (1905). COMMWENTS [Vol. 68

III. EMERGENCE OF THE RIGHT OF to retain a symmetry. The natural result was to AUTONOMY permit the national government to tax various Taxation Cases state actions, even if they were conducted within the legitimate exercise of state power. Certainly if all the provisions of our Constitution In South Carolinav. United States ,83 the federal which limit the power of the Federal govern- government attempted to tax a state monopoly ment and reserve other power to the States are of the alcohol trade. This state creation of a to mean anything, they mean at least that the monopoly had been previously upheld by the States have the power to pass laws and amend court as a legitimate exercise of the state's police their constitutions without first sending their power. 4 At this time, the federal government officials hundred of miles away to beg Federal 77 taxed every dispenser of alcoholic beverages. authorities to approve them. Indeed, one quarter of all the income of the The taxing power is one which is concur- federal government in 1901 came from this 5 rently held by the state and national govern- tax. The Court denied South Carolina immu- ments. 78 It retains within it the greatest poten- nity from federal taxation, finding that such an tial of all governmental powers for constructive activity was not a traditional function of the and destructive impact.79 In a non-unitary sys- state and thus not deserving of the same quality tem, such as ours, the ability of one govern- of protection. In this situation, the Court ment to tax the corpus of the other represents a treated the state no longer as a state, but as any tremendous threat to the balance upon which other corporation. that system must be based. What was occurring was an expansion of the The traditional judicial response when one federal taxing power at the cost of state inde- 6 institution attempted to tax an aspect of an- pendence. Thus, even if the state could show other was to disallow the tax as a threat to a clearly legitimate interest and power to reach sovereign immunity, although nothing explic- a subject, the federal power could still reach the itly within the Constitution required this. Thus, same subject and control its behavior. It was states were not allowed to tax any aspect of the becoming the nature of the federal power to tax, 8 to reach all activities, even those which the state federal government. This denial went so far, 8 7 at one time, as to bar state taxation of the could legitimately pursue. income of federal employees living within a The watershed on this question and the true state. 1 When the occasion arose, the states were beginning of thoughtful, though muddled, found to enjoy reciprocal protection. 2 Reci- enunciation of the right to autonomy occurred procity is effective in delimiting the effects of a in the direct lineal descendent of South Carolina concurrent power, so long as the line between v. United States, New York v. United States."' The the two governments is clear. But as the distinc- untoward division of the Court, occasioned by tion between nation and state in governmental the seriousness and haziness of the issue, added functions began to disintegrate following the both to a greater expression of views than had Civil War, it became increasingly more difficult 83 199 U.S. 437 (1905). " South Carolina v. Katzenbach, 383 U.S. 301, 359 '4 Vance v. W. A. Vandercook Co., No. 1, 170 U.S. (1966) (Black, J., dissenting). 438 (1898). 7'8 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 85 SECRETARY OF THE TREASURY, ANNUAL REPORT

4257 (1819). 7, 21 (1905). 9 Id. 8 at 427. 86 Indeed, every addition of power to the gen- o Id. at 430. eral government involves a corresponding dim- 8 Dobbins v. Commissioners of Erie County, 41 inution of the governmental powers of the U.S. (16 Pet.) 435 (1842). States. It is carved out of them. 82 Collector v. Day, 78 U.S. (11 Wall.) 113, 124 Ex parte Virginia, 100 U.S. 339, 346 (1879). (1870). 87 It is no objection to the assertion of the power The [national government] in its appropriate to regulate interstate commerce that its exercise sphere is supreme; but the States within the is attended by the same incidents which attend limits of their powers not granted; or, in the the exercise of the police power of the states. language of the tenth amendment, "reserved", United States v. Darby, 312 U.S. 100, 114. See also, are as independent of the general government New York v. United States, 326 U.S. 572, 582 (1946) as that government within its sphere is inde- (Frankfurter, J.). pendent of the states. 88 326 U.S. 572 (1946). AUTONOMY

previously been aired and to a tendency to ob- The sale of mineral water is not this type of scure the nature of the right of autonomy. governmental function, according to Justice In New York v. United States, the state of New Stone, but he expressed his doubts as to the York was bottling and selling mineral water constitutionality of federal taxes on "the State's obtained from Saratoga Springs, which was capitol, its State-house, its public school houses, owned and operated by the state. Such sales public parks, or its revenues from taxes or were taxed by the federal government. The school lands. '93 The important thing, accord- state argued that the federal government ought ing to Justice Stone, was to limit the potential to be barred from taxing actions of a state taken deleterious impact of federal taxation on state in an effort to conserve that state's natural re- projects, thus protecting state sovereignty with- sources. The federal government contended out imposing too great a cost upon the federal 94 that the doctrine of South Carolina v. United government in lost revenue. States was dispositive and foreclosed the state's In dissent, Justice Douglas, joined by Justice argument. The Court, divided 2-4-2,19 upheld Black, also rejected the view that the federal tax the federal government. power is plenary when not discriminatory. For Justice Frankfurter wrote the "majority" Justice Douglas, South Carolina was wrongly de- opinion of the Court.90 He felt that South Caro- cided. Rather, the appropriate test should fo- lina was dispositive. The federal taxing power cus on whether the activity is within the state's was plenary. However, he openly disliked power to initiate or operate. If so, it should be the state-governmental-function/state-govern- beyond the reach of the federal tax power. The ment-as-business distinction, feeling, rather, mere fact that a state's activity was one in which that the question of limits to the congressional it attempted to make a profit or was in a field taxing power was not within the Court's pur- formally reserved for private enterprise ought view, 91 so long as the tax did not discriminate not to have any bearing upon the status of the against or otherwise unfavorably single out the state's tax immunity. Indeed, Justice Douglas state enterprise. viewed the immunity as a crucial factor in the Chief Justice Stone wrote the "plurality" continued maintenance of the federal system: opinion, in which Justices Reed, Murphy, and "The Constitution is a compact between sover- Burton concurred. While likewise upholding eigns." 95 Consequently, to let one sovereign tax the validity of the tax as applied to New York, the other's activities and projects is to relegate the Chief Justice was not satisfied that the only the states to a servile status vis-a-vis the national constitutionally mandated limit on the federal government. taxing power was that it not discriminate against the state. He reasoned that there were They [the states) become subject to interference and control both in the functions which they activities and functions which were unique to the state because of its status as a sovereign and 913Id. at 587-88. which were outside the reach of the federal 14 Chief Justice Stone, quoting from Metcalf & power: Eddy v. Mitchell, 269 U.S. 514, 523-24 (1926). But neither government may destroy the other If we are to treat as invalid, because discrimina- nor curtail in any substantial manner the exer- tory, a tax on State activities and State owned cise of its powers. Hence the limitation upon the taxing power of each, so far as it affects the property that partake of uniqueness from the other, must receive a practical construction point-of-view of intergovernmental relations, it which permits both to function with the mini- is plain that the invalidity is due wholly to the fact that mum of interference each with the other; and it is a State which is being taxed so as to unduly that limitation cannot be so varied or extended infringe, in some manner, the performance of itsfunc- as seriously to impair either the taxing power of tions as a government which the Constitution recog- the government imposing the tax . .. or the nizes as sovereign.92 (Emphasis added) appropriate exercise of the functions of the gov- ernment affected by it. '9Justice Jackson did not participate. 326 U.S. at 589-90. See also, South Carolina v. United 90 Though it was presented as the majority opin- States, 199 U.S. 437, 452 (1905). ion, only one other Justice, Mr. Justice Rutledge, [T]he two governments, National and state, are concurred in it and even he wrote a separate opinion. each to exercise their power so as not to inter- It is more aptly considered a "consensus" opinion. fere with the free and full exercise by the other 91Id. at 581-82. of its powers. 92 Id. at 588. 91326 U.S. at 592. COMMENTS [Vol. 68

exercise and the methods they employ. They company or institution fell reasonably within must pay the federal government for the privi- the definition put forth within the act, it was lege of exercising the powers of sovereignty constitutionally subject to the regulation of the guaranteed them by the Constitution.96 Congress. That the company or institution was Thus, in New York v. United States, a majority owned by, operated by, or was an integrated of the Supreme Court97 found, so far as the component of a state government was irrele- taxing power of the federal government was vant to the exertion of federal control and concerned, that the status of the states as sover- power: eigns, implicit and interwoven within the text of If a state is engaging in economic activities that the Constitution, did operate to make a sub- are validly regulated by the Federal Government stantive limit to that power. This majority split when engaged in by private persons, the State over both the substance of that power, in gen- too may be forced to conform its activities to eral, and as applied to facts of the case. Beyond federal regulation .102 the broad rule suggested by Justice Douglas and the off-hand-examples of Chief Justice Justice Harlan emphasized the plenary as- Stone, little was said to explain the nature or pects of the commerce power and the rational- source of this implied right. Thus, wrapped in ity of its connection to the extension of the Act shadowy ambiguities and acknowledged only by so as to reach the states, and rejected any doc- its absence, the right of autonomy first ap- trine forbidding or limiting federal interfer- ence with the actions and powers of the peared. 03 states . The Commerce Power Justice Douglas again took up the side of the Eighteen years later, in Maryland v. Wirtz,"s states. While Justice Harlan's opinion did not even make mention of New York,'1 4 the reason- an attempt was made to utilize the rough con- cepts of state sovereignty outlined in New York ,02 392 U.S. at 197; also to establish a buffer against the otherwise plen- It [The Supreme Court] will not carve up the ary power of the federal government concern- commerce power to protect enterprises indistin- guishable in their effect on commerce from pri- ing interstate commerce. Congress had vate businesses, simply because those enterprises amended the Fair Labor Standards Act, con- happen to be run by the States for the benefit of cerning minimum wages and overtime benefits, their citizens. so that its provisions would reach any employee Id. at 198-99. at a state school or hospital, who was in a non- "0There is no general doctrine implied in the Federal Constitution that the two governments, executive, administrative or professional posi- national and state, are each to exercise its pow- tion. On its face, the Act served only to provide ers so as not to interfere with the free and full mandatory guidelines for employee treatment, exercise of the powers of the other. yet it actually went far in directing the distribu- Id. at 195. tion of limited state funds.9 9 This time, a six- For precedent Justice Harlan relied principally upon Case v. Bowles, 327 U.S. 92 (1946). In Case, the man majority found there was no implied right price of timber had been given a ceiling by the admin- protecting the states, at least insofar as the in- istrator under the Emergency Price Control Act dur- terstate commerce power was concerned.' 00 ing World War II to control product costs. The state Justice Harlan, writing for the majority, of Washington had certain timberlands set aside to found that United States v. Darby'°' provide income for its schools. It sold at auction some laid out the of these lands for a price greater than that allowed dimensions of the commerce power. Once a under the Act. The Supreme Court upheld the ad- ministrator and enjoined the sale. The Act had been 96 Id. passed pursuant to the Congress' war power. Its ap- 11 This "majority" consisted of Chief Justice Stone proval is illustrative of the Court's bending to the will and the three justices concurring in his opinion and of the national government in times of emergency. the dissenters, Justice Black and Justice Douglas. See also, Korematsu v. United States, 323 U.S. 214 98392 U.S. 183 (1968). (1944). Being concerned with the war power, it can- " Compare with Dandridge v. Williams, 397 U.S. 471 not be dispositive on the reach of the commerce (1970). power vis-a-vis the state's right to autonomy. 100 The Court divided 6-2, with Justices Douglas 104The majority did, however, find the time to and Stewart dissenting. Justice Marshall did not par- quibble over Justice Douglas's interpretation of Wick- ticipate. ard v. Filburn, 317 U.S. 111 (1942). Justice Douglas's 101312 U.S. 100 (1941). syllogism was 1977] AUTONOMY

ing of the "majority" in that case was Justice This principle expanded somewhat in the Douglas' keystone. He found that the threat of years that followed, so that it reached not only extinction to state governments through unbri- constitutional questions before state attempts at dled use of the commerce power had implica- limitation and construction, but also "unseemly tion for the states every bit as lethal as the tax conflict between the sovereignties" and actions 0 7 power had had in New York. which might unduly hinder state functions. This expansion has not continued unchecked in Federal Oversight the recent past, however, as the current cases fit Abstention by federal courts is a judicial con- less and less easily into the flow of the past. struct first given clear form in Justice Frank- With the addition of Chief Justice Burger in furter's opinion in Railroad Comm. of Texas v. 1969 and Justice Blackmun to the Supreme Pullman'0 5 in 1941. Abstention occurs when a Court in 1970,108 the Court has moved with federal court refrains from acting on a question rapidity', for an institution so akin to glacial over which it has jurisdiction but which flow, to limit the encroachment of the national "touches upon a sensitive area of social policy government upon the states, and, if possible, upon which the federal courts ought not to reverse it. enter unless no alternative to adjudication is The new Court acted first in the area which open."'0 6 Thus, federal courts of equity were was least dangerous or controversial, the judi- required not to act in certain cases pending cial construct of abstention. In doing so, it was state determinations of policy. Clearly, this doc- able to reaffirm the integrity of the statejudicial trine contains a good deal of deference to the forums, avoid any direct Constitutional ques- state's ability to determine policy. However, the tions as to the status of the states, and restore, federal court had only to stay proceedings somewhat, the state power to decide questions pending the state determination; afterwards of criminal law. Thus, in its second term, the the action to review in federal court remained Burger court established the principle of feder- alive. This was equitable abstention. alism abstention. In Younger v. Harris,'0 9 the defendant had The exercise of the commerce power may also been indicted for violation of the state Criminal destroy state sovereignty. All activities affecting Syndicalism Act. Before the charge went to commerce, even in the minutest degree, Wick- trial, Harris sued in federal court to have the ard, supra, may be regulated and controlled by Congress.... act stricken down as unconstitutional. The Yet state government itself is an "enterprise" three-judge court struck down the act as vague with a very substantial effect on interstate com- and overbroad. The Supreme Court reversed, merce.... eight to one, without reaching the merits. The If all this can be done, then the National Government could devour the essentials of state Court found that the history of the country was sovereignty.... one based on a belief in the federal system. 392 U.S. at 204-05. The majority responded that: Such a belief specifically excluded federal inter- Neither here nor in Wickard has the Court de- ference with state criminal prosecutions except clared that Congress may use a relatively trivial as the state government showed itself to be impact on commerce as an excuse for broad general regulation of state or private activities. incapable oflacting as it was supposed to. To The Court said only that where a general regula- reinforce the belief that a state criminal pro- tory statute bears a substantial relation to com- ceeding was a just and fitting forum, the Su- merce, the de minimis character of individual preme Court limited federal court interference instances arising under that statute are of no consequence. in a state criminal prosecution to cases involving 392 U.S. at 197 n. 27. This exchange highlights Justice unjustified state harassment or irreparable in- Harlan's and the majority's lack of understanding as jury. The heart of this policy was the state- to the issue involved. Even if Wickard only allows an national relationship of federalism, character- extension of federal power to trifling situations rather than defeat a general regulation, Wickard is only an ized as: 0 7 aftermath situation. It is the allowance of the general 1 See generally, Martin v. Creasy, 360 U.S. 219 regulation in all circumstances, such as the instant (1959). case, that is the heart of the controversy. Wickard 108Chief Justice Burger took the oath on June 23, cleans up the pieces. Maryland shatters the porcelain. 1969 and Justice Blackmun took the oath on June 9, 10 312 U.S. 496 (1941). 1970. 106Id. at 498. 109401 U.S. 37 (1971). COMMENTS [Vol. 68

a system in which there is sensitivity to the legiti- for almost every action of state government mate interests of both State and National Gov- before it could be effectuated. To an extent, ernments, and in which the National Govern- this merely is a rephrasing of the presumption ment, anxious though it may be to vindicate and of contsitutionality which attaches to all chal- protect federal rights and federal interests, al- lenged state laws and ways endeavors to do so in ways that will not actions. But the Court was unduly interfere with the legitimate activities of extending the concepts of federalism and state the states.110 autonomy from mere judicial abstention in criminal matters. The record of the Supreme Even Justice Douglas, the only dissenter, Court in the 1970's is one of a continuing ex- does not dispute the nature of the federal rela- pansion of the recognition of federalism and its tionship. However, particularly in light of his substantive concerns. fierce advancement of the meaning of the first The ability of the federal courts to safeguard amendment safeguards,"' he continued to dis- federal constitutional rights as against the states trust the states' ability and desire to exercise was limited severely again, when the Supreme and provide those safeguards for their citi- Court decided that habeas corpus review by the 1 2 zens. federal courts did not include questions of Federalism abstention was, initially, an in- fourth amendment search and seizure." 6 The strument primarily for the preservation of the rationale for this decision was a balancing test integrity of the state's criminal judicial system. of competing interests. While the case seems to Two years later, the reach of this federalism be primarily an exposition on the weaknesses of was extended to the executive and the legisla- the exclusionary rule, the Court did not ulti- 7 tive branches. Pennsylvania had passed a law mately deal with that issue' and found that the allowing private, sectarian schools to be reim- fourth amendment interests were outweighed bursed for certain secular educational functions by the harm habeas corpus review caused the performed by them. This statute was struck states' criminal justice system."" The result is down by the Supreme Court as being violative premised on the ability and willingness of the of the first amendment in Lemon v. Kurtzman state to provide a full and fair hearing for the (I).113 Following that decision, the state reim- defendant. Since the provisions of the fourth bursed those schools for the secular functions amendment are constitutional in nature, they they had performed prior to the Supreme can only be outweighed by interests which are Court's decision. The plaintiffs attacked this constitutional in quality. The counter-balance, action as being violative of the first amend- in this case, is the integrity of the state judicial ment. The Supreme Court upheld the state system. The federalism concerns first articu- action in Lemon v. Kurtzman (II).114 lated in Younger have now attained constitu- Among the plaintiffs attacks was that there tional dimensions. could be no justified reliance upon the statute The question might be raised as to how these until validated by the courts. This argument abstention and habeas corpus cases relate to a was peremptorily rejected. A sovereign govern- state's right to autonomy. A state's right to au- ment must act as if it is sovereign." '5 Indeed, to tonomy is no more plenary than any federal find otherwise would require federal approval power, as each retains substantive limits: due process or equal protection, or an affirmative " Id. at 44. constitutional prohibition, express or implied, ...See Brandenburg v. Ohio, 395 U.S. 444, 450 (1969). (Douglas, J., concurring) to name but a few. The integrity of the state's 112 In times of repression, when interests with administrative apparatus, the ways and means powerful spokesmen generate symbolic po- that it creates, discharges, and upholds its laws, groms against nonconformists, the federal judi- are critical to its operation as a sovereign entity. ciary, charged by Congress with special vigilance Any argument that such operations could be for protection of civil rights, has special respon- sibilities to prevent an erosion of the individual's completely free of federal oversight disap- constitutional rights. peared with the passage of the Civil War 401 U.S. at 58. Amendments. While those amendments did "3 403 U.S. 602 (1971). 114 Lemon v. Kurtzman, 411 U.S. 192 (1973). 116 Stone v. Powell, 427 U.S. 465 (1976). 7 115 "[G]overnments must act if they are to fulfill " Id. at 482, n. 17. 8 their high responsibilities." 411 U.S. at 207. " Id. at 491. 1977] AUTONOMY not truncate the states' power, they did form amended in 1974 so as to apply to nearly all buffers and guidelines for its use. The balance employees of the states and their political sub- between the power of the federal government divisions. Rejecting the authority of Maryland, to enforce those amendments within the states' the Court, relying heavily upon Chief Justice operations and the ability of the states to view Stone's concurring opinion in New York, found the guidelines without federal interference has that in balancing the federal commerce power shifted markedly. In part, this has been the against the intrusion by the statute into state result of the loss of state hostility to many of the functions, the federal statute exceeded its per- procedures and processes made mandatory. missible impact.23 But the substantive shift has been toward a Justice Rehnquist, writing for the Court in greater belief in the ability of the state to govern National League of Cities v. Usery 24 found that itself and the superfluous nature of federal the statute imposed substantial costs upon the oversight."' state and impinged upon the ability of the state While these may appear trivial as to the ques- to determine the manner in which its money is tion of an implied constitutional right, these spent. 25 Clearly, these are interrelated areas. cases are symptomatic of a growing realization Where an institution has only a limited income, on the part of the Supreme Court that the state money which is required in one field will re- does have a substantive right of autonomy, quire diminution of expenditures in another embedded within the fabric of the Constitution. field. The actual question is one of disruptive- It is a power which not only constitutes a mate- ness to the internal operations of the state, the rial bumper to the exercise of federal power but state's right to be autonomous. also may act to channel the process of the im- While this opinion could have been the plat- plementation of individual rights, though not form for the airing of the full considerations 20 the substance of those rights. making up the right to autonomy, it was not. Indeed, the legal and constitutional analysis NationalLeague of Cities v. Usery was somewhat weak overall. The Court first The most dramatic step toward recognition acknowledged the plenary nature of the inter- of the state right of autonomy by the Supreme state commerce power with the obligatory quo- Court has been the striking down of a federal tations from Gibbons v. Ogden126 and Heart of statute based upon the exercise of the com- Atlanta Motel v. United States. 2 7 Then limits merce power for its undue interference with upon that power by the provisions of the Bill of "the States qua states". It is primarily a resusci- Rights are cited. Finally, Justice Rehnquist tation of the plurality position by Chief Justice more or less established state sovereignty as an Stone in New York v. United States,'2 ' but where admixture of the tenth amendment and the that decision recognized the right but upheld language of Chief Justice Stone's opinion in the law, this one both recognizes the right and New York.128 These components, based upon provides it with some bite. the indestructibility of the states, fashioned, in The federal Fair Labor Standards Act, whose the Court's judgment, the constitutional nature application to certain state employees had been of states as states. The federal power over com- upheld by the Court in Marylandv. Wirtz' 2 was merce was found to be sufficiently outweighed 9 Id. at 493. 3 National League of Cities v. Usery, 426 U.S. 833 120 It is important to recognize that the right of (1976). Justice Rehnquist does not characterize his autonomy for the state cannot limit the requirements opinion as a balancing test. Rather, he finds the rights of the Civil War Amendments. Those amendments of the States entrenched and the federal commerce concern the rights of individual people. Autonomy power too little to move them. Id. at 852. How- concerns the relationship of the state and national ever, the decision was 5-4, and Justice Blackmun, government. The amendments were passed to pro- whilejoining in the opinion of the Court, in a concur- vide substantive limits on the states. The federal gov- ring opinion, made explicit his belief that this was a ernment may become involved by determining the balance being drawn. means of ensuring those rights, that is where the 1-2 426 U.S. 833 (1976). right of autonomy may act. It may affect the means, 1 Id. at 848. but never the substance of the individual rights. 12622 U.S. (9 Wheat.) 1 (1824). 121 326 U.S. 572 (1946). 127 379 U.S. 241, 262 (1964). 122 392 U.S. 183 (1968). See text accompanying notes 128 426 U.S. at 842-43, quoting Fry v. United States, 126-32 supra. 421 U.S. 542 (1975). COMMENTS [Vol. 68

by the burdensome costs and the impact upon in the Burger Court's progress towards a sub- state priority-setting. Consequently, the act was stantive understanding of the position of the stricken down. As a post-script, the contradic- states in the post-Civil War constitutional tory holding of Maryland v. Wirtz129 was over- framework. However, as the dissenting opinion ruled and the contrary dictum in California v. shows, it is not the bottom line which is not United States'30 disapproved. understood, but the pathway which leads there. The heart of the decision is, simply put, that The Supreme Court has thus far been unable "States as States stand on a quite different foot- coherently to formulate and thereby recognize ing than an individual or a corporation when the right of autonomy. This inability is to a challenging the exercise of Congress' power to great extent undoubtedly reflective of the na- regulate commerce.''M The source of that dif- tion as a whole, and shows the declining impor- ference is neither explained nor clarified by the tance, power, and prestige of the states. 36 In Court, however, and, it is this failure to give passively viewing the passing of the states, the fuller body to the right of autonomy which Court has removed itself from the document provides the dissent with its plentiful ammuni- which it has a duty to faithfully expound. tion. In dissent, Justice Brennan reaffirms the IV. RIGHT TO AUTONOMY plenary nature of the federal commerce power. In summary, then, the Supreme Court in First, he establishes the supremacy of the na- National League of Cities and Stone v. Powell has 32 tional government. New York is distinguished begun to recognize substantive limitations to on the ground of tax immunity of the state, the the exercise of federal power. As of the mo- tax power being held concurrently, while com- ment, though, it has been unable to overcome merce is a plenary power of the national gov- the rhetoric and the tunnel vision of the past 133 ernment. It is the Court's failure to fully and continues to deal with federal-state rela- explain why states are entitled to be treated tions based upon the tenth amendment struc- differently than individuals, for surely the ture. This has caused the Court to have to tenth amendment language includes both the struggle unnecessarily to reach the proper con- states and the people, that must be remedied in stitutional conclusion in some cases and, occa- order to make clear the substantive nature of sionally, to miss it altogether. the state's right. Justice Brennan's analogy to The right to autonomy is a narrow concept. the discredited logic of Carter v. Carter Coal Since it consists of only those prerogatives nec- 34 3 Co.' and United States v. Butler1 misses the essarily retained by the state in order to pre- nature of the state's right involved here as com- serve the federal nature of the constitutional pared to the reactionary proclivities exercised system, the potential exists for a good deal of in these earlier cases. This difference is the disagreement as to where the flash point is. quality of the areas protected by the right of Indeed, the strongest proponents of the right autonomy, a right which Justice Rehnquist does disagree on a very important point of potential not however, successfully describe. application: the ability of the federal govern- NationalLeague of Cities marks the latest stage ment to ensure rights guaranteed to individuals 129 392 U.S. 183 (1968). by the Constitution through the Bill of Rights. '30297 U.S. 175 (1936). In California, federal safety This ability can be characterized as its oversight requirements were found to apply to a state railroad, power. It is qualitatively distinct in origin, exer- regardless of the reasons for state ownership. 131 cise, and goals from the plenary federal pow- 426 U.S. at 854. 3 132"[It] is not a controversy between equals" ers. 1 As a result of these differences, Justice when the federal government "is asserting its 136See J. BRYCE, 1 THE AMERICAN COMMON- sovereign power to regulate commerce.... WEALTH 562 (1908); Laski, The Obsolescence of Federal- [T]he interests of the nation are more important ism, 98 NEW REPUBLIC 367 (1939). See also note 62 than those of any State." supra. Id., quoting Sanitary District v. United States, 266 137 The origin of the oversight power lies princi- U.S. 405, 425-426 (1925). pally in the language of the Civil War Amendments '33Yet, Justice Brennan fails to recognize that the which are addressed primarily to the states. Its exer- source of the state's tax immunity is the autonomy of cise is as an intervenor between the state and the the state in the first place. See 426 U.S. at 843 n. 14. individual, piercing the autonomy of the state. The 134 298 U.S. 238 (1936). goal of the oversight power is to protect the individ- 13'297 U.S. 1 (1936). ual from unconstitutional treatment from the states. 1977] AUTONOMY

Douglas found that the state's right to auton- the state to protect its interests. These are the omy could not apply to limit the power of the minimum necessary for a state to retain its indi- national government. 138 Conversely, Justice vidual character in a world without power. It is Rehnquist and a majority of the current Court the right to autonomy. have applied the right to autonomy in just such a manner, to the detriment of the federal V. CONCLUSION power. The government in the United States, as es- The right to autonomy concerns the federal tablished in the Constitution, is a federal sys- personality of the system. It deals only with the tem. A federal system requires two tiers of gov- direct federal-state relationships. Thus, where ernment, non-wholly integrated and semi-inde- the federal government interferes with legiti- pendent. Originally, the states were sovereign mate state autonomous interests, the state is entities. The course of constitutional interpre- constitutionally protected. Yet such interests do tation has succeeded in all but depriving them not reach to those rights, privileges, and im- of separate power, as the delegated powers of munities guaranteed to individuals by the Con- the national government have become, effec- stitution. These individual interests exist re- tively, all powers. There is some quantum be- gardless of the federal structure of the sys- low which any governmental system becomes tem. 39 non-federal in nature, regardless of label. The The autonomous interests of the state are need to remain above that quantum is a consti- threefold: internal control, internal ordering, tutional requirement, as the federal nature of and internal integrity. Internal control pertains the government is constitutional in quality. to the ability of the state to rank order deci- That quantum is supplied by the right of the sional priorities, to be able to decide what gets states to be autonomous. done first. Internal ordering is the ability of the The past one hundred years has been a state to determine the structure and nature of chronicle of the continuing eclipse of the states its governmental organizations, to be able to in the constitutional framework, often through determine what agencies exist and in what the myopia of good intentions of the Supreme sense. Internal integrity describes the ability of Court. This eclipse has been the result of the inability of the states to conform to constitu- "' See note 112 supra. tional requirements, the increasing power and import of the national government, and the 139That is, the various constitutional protections distaste of states' rights which has lingered from guaranteed the general citizenry would be applicable if only the states existed or if only the national gov- the Civil War even until today. The Supreme ernment existed. The federal system is superfluous to Court is only slowly recognizing both the need their vitality and value. and the nature of the right of autonomy.