Democracy’s Privileged Few JOSH CHAFETZ Democracy’s Privileged Few LEGISLATIVE PRIVILEGE AND DEMOCRATIC NORMS IN THE BRITISH AND AMERICAN CONSTITUTIONS Yale University Press New Haven & London Published with assistance from the Louis Stern Memorial Fund. Copyright ∫ 2007 by Yale University. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Set in Sabon by Keystone Typesetting, Inc. Printed in the United States of America. Library of Congress Cataloging-in-Publication Data Chafetz, Joshua A. (Joshua Aaron), 1979– Democracy’s privileged few : legislative privilege and democratic norms in the British and American constitutions / Josh Chafetz. p. cm. Includes bibliographical references and index. isbn-13: 978-0-300-11325-9 (cloth : alk. paper) isbn-10: 0-300-11325-0 1. United States. Congress—Privileges and immunities. 2. Constitutional law— United States. 3. Great Britain. Parliament—Privileges and immunities. 4. Constitutional law—Great Britain. I. Title. k3324.c47 2006 328.41%074—dc22 2006014036 A catalogue record for this book is available from the British Library. The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources. 10 9 8 7 6 5 4 3 2 1 To mom and dad, with love and thanks for everything Contents Acknowledgments ix Introduction 1 1 Lex Parliamenti vs. Lex Terrae 27 2 Political Questions and Nonjusticiability 49 3 Free Speech in Parliament68 4 Free Speech in Congress 87 5 Freedom from Civil Arrest and Legal Process for Members of Parliament111 6 Freedom from Civil Arrest for Members of Congress 134 7 Disputed Parliamentary Elections 144 8 Disputed Congressional Elections 162 9 Breach of Privilege and Contempt of Parliament 193 10 Punishment by Congress 207 Conclusion 236 Notes 241 Index 295 Acknowledgments This project began its life as a master’s thesis, continued as a doctoral dissertation, and has come to completion in the book in front of you. Along the way, I have been blessed with friends and colleagues who have contributed immeasurably to the work’s progress and the author’s well-being. This note merely acknowledges my debt to them; I am under no delusion that it repays it. The time spent and advice proffered by my advisers, Nick Barber and Ver- non Bogdanor, went far above and beyond the call of duty, and their gener- osity is greatly appreciated. Akhil Amar has been a teacher, mentor, and friend since I was an undergraduate, and his advice and encouragement have been invaluable throughout this project. Nigel Bowles and Diana Woodhouse were my dissertation examiners, and their comments have proven most helpful, as have those of two anonymous reviewers for Yale University Press. Michael O’Malley, Steve Colca, and Otto Bohlmann at the Press have been helpful at every turn, and I am truly grateful. I would also like to thank David Adesnik, Erin Ashwell, Patrick Belton, Jennifer Bennett, Joey Fishkin, Kristin Javaras, Rachel Kleinfeld, Marin Levy, Brett Marston, Brook McKinney, Stephen Sachs, Guglielmo Verdirame, Stuart White, Lindsey Worth, and Paul Yowell for helping to keep the book on track and its author sane. The Rhodes Trust very generously funded my graduate studies, and the ix x Acknowledgments Institute for Humane Studies funded an additional summer’s worth of work on this book. Merton College, Oxford, and the Yale Law School have pro- vided hospitable and stimulating environments in which to work. I owe a special debt of gratitude to the librarians at Oxford and Yale—their craft is a vital but underappreciated one. Finally, Catherine Roach’s love and patience have sustained me, and her brilliance has enriched my life, and this book, immeasurably. And my parents have never stopped teaching me—always by example—what it is to be a good scholar, a good citizen, and a good person. This book is for them. Democracy’s Privileged Few Introduction Few things are more important to the collective political life of a modern state than that state’s constitution. Yet in two of the states that are considered exemplars of modern democratic constitutionalism—Britain and America— the very word ‘‘constitution’’ means radically different things. In the mother country, the Constitution is an amorphous thing, without sharp edges or a clearly defined status. The British Constitution cannot be distinguished from institutional interpretations of it: the actual, current structure of institutions is constitutive of the Constitution itself. When Albert Venn Dicey and later Ver- non Bogdanor described the British Constitution as ‘‘historic’’—that is, as ‘‘the product, not of deliberate design, but of historical development’’∞—they were situating themselves within a long line of constitutional scholarship. In discussing the origins of civil society in 1767, Adam Ferguson wrote of institu- tions whose development is ‘‘indeed the result of human action, but not the execution of any human design.’’≤ In the twentieth century, Friedrich Hayek would make this wording central to his definition of the concept of spontane- ous order, of which he thought the common law was a prime example.≥ And J. R. Pole, noting the flexibility and fluidity of the British Constitution, wrote that it ‘‘may be thought of as an organism, but not as a machine.’’∂ What accounts for this fluidity? The first thing that occurs to modern minds is what is commonly called the unwrittenness of the British Constitution. 1 2 Introduction Although much of the British Constitution is indeed written (the Magna Carta [1215], the Bill of Rights [1689], the Articles of Union [1706], and so on), no person or group of people ever sat down to write the British Constitution (perhaps, then, ‘‘uncodified’’ would be a better description than ‘‘unwritten’’). At the margins, there can even be debate as to which written documents have constitutional status and which do not. Although the doctrine of parliamentary sovereignty means that there is no constitutional norm that cannot be over- turned by a new statute, there are plenty of constitutional norms that do not have a statutory basis. They result from either ancient practice or judge-made common law, yet they are legally binding, just like norms arising from statutes. Moreover, when statutes are ambiguous, judges will interpret them so as not to disturb constitutional norms. The result is that the British Constitution is in a constant state of flux, and the interaction among new statutes, old norms, and changing circumstances is constantly being negotiated by the courts, Parlia- ment, and the voting public. The resulting uncertainty led Sidney Low to remark that the British government is based upon ‘‘a system of tacit under- standings. But the understandings themselves are not always understood.’’∑ Yet, as Adam Ferguson appreciated, out of such hectic processes arises a complex and subtle order. Principles that animate and have long animated the British polity can be traced over the course of centuries. But historical analysis of the British Constitution is a complicated dialectic: from specific events, decisions, and laws, we induce general animating principles, and using these principles, we analyze and critique those same events, decisions, and laws. Out of this dialectic arises a better understanding of both what the British Consti- tution is and what it should be. The Americans, like all rebellious children, rejected the outward forms of their parents’ way of (political) life. They reconstituted themselves as a na- tional people, and they used a single, explicit document to do so. The docu- ment has, of course, changed over the years—it has been amended twenty- seven times—and interpretations of it have changed continuously. But they are precisely that—interpretations of it, a short document (of fewer than five thousand words at the Founding, and even today fewer than eight thousand), read in high schools throughout the country. Not even the most highly trained lawyer could fail to distinguish between the Constitution itself and interpreta- tions of it by the three branches of government.∏ Yet, for all the differences between the two, an understanding of the British Constitution is absolutely crucial to an understanding of the American. The American Constitution was, after all, written by men who had only recently ceased to be British subjects. Their background constitutional assumptions were British, and they knew which parts they wanted to keep (for example, the Introduction 3 writ of habeas corpus, a bicameral legislature, a unitary executive) and which they did not (for example, bills of attainder, titles of nobility, the monarchy). Most important of all, the Americans declared with their opening words that ‘‘We the People of the United States’’ were to be sovereign in the new nation. Although the British Constitution has never fully warmed to popular sov- ereignty, it certainly should not be thought of as undemocratic. Indeed, one of the animating spirits of British constitutional history has undoubtedly been the drive toward greater democracy. The democratic element of the Constitu- tion has grown stronger, while the monarchical element has been reduced to a figurehead and the aristocratic element has been both reduced in power and made more responsive to the democratic element.π As democracy has put down deeper roots in the Constitution, the understanding of what constitutes democracy has grown broader—one might say that the understanding of de- mocracy ingrained in the Constitution has grown from democracy simpliciter (that is, the existence of an elected, representative body constitutes democ- racy) to liberal democracy (that is, democracy involves certain checks, even on elected bodies, and seeks to promote a tighter nexus between the wishes of the people and the actions of the government).