Parliamentary Privilege in the United States Congress

With so many American presidential candidates proclaiming the virtues of the Constitution of the United States of America, I sometimes take to re-reading my “pocket constitution” in order to verify their interpretations of its various clauses and amendments. I originally acquired this pocket constitution  in 2003 in Honors History 10-1, taught by the indefatigable Mainer Perry Lewis, whom I credit as the inspiration for all of these posts on American constitutionalism, my interest in American history of the 18th century, and ultimately my reliance on traditional historical methods in political science.

Though I originally started studying the history of the Canadian constitution, its history inevitably led me toward the British constitution from whence it came, as well as what I re-discovered as the intriguing early Lockean offshoot of the British constitution. I argued in an earlier post (see below) that the American Constitution can best be understood as a republican version of Westminster parliamentarism as it existed from the Restoration in 1660 to the coronation of George III in 1760. This crucial century saw the rise of parliamentary sovereignty via the crown-in-parliament and the successive constitutional limitations of royal power in favour of parliament; however, it pre-dates the modern regime of responsible government and subordination of the political executive to the House of Commons.

Every time I re-read the American Constitution, I spot additional material that clearly derives from this crucial century in parliamentarism. Article I, Section 6 contains provisions that I can only describe as a codification of the basic tenets of parliamentary privilege. O’Brien and Bosc define it as follows:

Parliamentary privilege refers […] to the rights and immunities that are deemed necessary for the House of Commons, as an institution, and its Members, as representatives of the electorate, to fulfil their functions. It also refers to the powers possessed by the House to protect itself, its Members, and its procedures from undue interference, so that it can effectively carry out its principal functions which are to legislate, deliberate and hold the government to account.

More particularly, privilege for individual members includes: “freedom of speech; freedom from arrest in civil actions; exemption from jury duty; exemption from being subpoenaed to attend court as a witness; and freedom from obstruction, interference, intimidation and molestation.”

Article I, Section 6, Paragraph 1 of the American Constitution codifies the basic principles of parliamentary privilege that the Bill of Rights, 1689 affirmed for English Members of Parliament:

[Senators and Representatives] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The Framers understood that Congress, like the Westminster Parliament, would need to confer certain immunities and privileges upon its members so that they could truly hold the executive branch to account without fear of reprisal — particularly in the aftermath of the Revolutionary War and in the fragile development of the fledgling republic.

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About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
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6 Responses to Parliamentary Privilege in the United States Congress

  1. Pingback: The State of the Union Address and Loyal Opposition in the United States | By James W.J. Bowden

  2. Pingback: “Irresponsible Government” and the American System | Parliamentum, by James W.J. Bowden

  3. Pingback: George III, Parliament, and the Loss of the American Colonies | Parliamentum

  4. PKLewis says:

    If you call me indefatigable again, I’ll sock you; my parents were properly married at the time.


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