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Democracy's Privileged Few
Legislative Privileged and Democratic Norms in the British and American Constitutions 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 Vernon 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 institutions 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 spontaneous order, of which hethought 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. 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 overturned 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, Parliament, and the voting public. The resulting uncertainty led Sidney Low to remark that the British government is based upon "a system of tacit understandings. 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 Constitution 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 national people, and they used a single, explicit document to do so. The document 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 interpretations 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 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 sovereignty, 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 Constitution 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. 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 democracy ingrained in the Constitution has grown from democracy simpliciter (that is, the existence of an elected, representative body constitutes democracy) 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). In short, while the Americans can be said to have designed a democracy, the British stumbled into one.
This book aims to throw light on the British and American constitutions, separately, but also on the relationship between them. That, however, is a lot of territory to cover, a broad vista that would encompass many of the most significant constitutional developments in human history. The book will not attempt to survey the entire field but rather will try to provide a window onto it. I have chosen legislative privilege - those special rights that individual Members or Houses of the legislature possess in order to facilitate their legislative duties - to serve as our portal because privilege gives us a particularly clear view of important institutional cleavages. Much of the history of British parliamentary privilege is the history of clashes among the House of Commons, the House of Lords, the monarch, and the courts. Likewise, much of the history of American congressional privilege is the history of clashes among the House or Senate, the president, and the courts. These conflicts provide a uniquely valuable perspective on the way power dynamics among those institutions work and have worked in the past. This perspective, in turn, will help us get at many of the fundamental values and ideas lying at the heart of these constitutions.
Moreover, the field has received surprisingly little attention - the last book-length treatment of British parliamentary privilege was published in 1921. A survey of parliamentary privilege in the American colonies was published in the 1940s. Shorter studies of individual aspects of privilege have been sporadically published and will be cited throughout this work. However, there has been no attempt to consider under a single head (and therefore under a single analytic framework) the various privileges of Congress guaranteed by the American Constitution. Of course, this means that there has also been no systematic comparative study of legislative privilege in the British and American constitutions. This book aims to remedy these deficits.
Two British Conceptions of the Function of Privilege
I shall argue that there are two basic paradigms of the role of parliamentary privilege in the British Constitution. For ease of reference, I shall dub them the Blackstonian and the Millian paradigms, although I am not making the exegetical claim that William Blackstone or John Stuart Mill would necessarily have agreed with everything I say under their labels. Broadly speaking, the Blackstonian conception is that, because the House of Commons is the democratic element of the Constitution, the function of privilege must be to protect the House at all costs from outside interference. The Millian conception recognizes that democracy has come to have deeper roots in the Constitution than simply the House of Commons, and it allows room for constituents and the courts when determining the scope of privilege. My purpose is not to argue that one of these conceptions is right and another wrong; rather, I am positing that each was appropriate in its own historical circumstances. When the democratic element of the Constitution was struggling, it made sense to do whatever possible to strengthen the House of Commons, even if one of the side effects was to keep the connection between Members and their constituents a loose one. This was the Blackstonian view. But as the democratic element grew broader and deeper, this need to strengthen the House at any cost began to dissipate, and the focus of privilege rightfully shifted to allow for checks on the House and a tighter nexus between Members and their constituents. This is the Millian view. Blackstonian interpretations of privilege are only inappropriate when made in Millian political climates. It should, however, be noted that these two paradigms are at opposite ends of a continuum: there is no bright line of division between them, and there are plenty of cases that fall somewhere in the middle. With that in mind, let us turn to a more detailed examination of what the Blackstonian and Millian conceptions entail.
THE BLACKSTONIAN PARADIGM
William Blackstone, the famous eighteenth-century English legal academic, treatise writer, and judge, wrote:
Privilege of parliament was principally established, in order to protect it's [sic] members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown. If therefore all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harass any refractory member and violate the freedom of parliament. The dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges indefinite.
As a thinker - and, for a while, a jurist - who sought "to reconcile not just in theory but in detail the principles of liberal political theory and the practices of English common law," Blackstone adopted this view of privilege because he thought it the best way to protect the democratic institution of the House of Commons while it was still in a fragile stage of its development. In order to ensure that the Commons would not fall prey to the manipulations of other powerful actors - most notably, the monarch and the nobility (and therefore the courts, which were royally controlled and whose highest court of appeals was the House of Lords) - Blackstone sought to erect a legal wall around the House. In the chapters that follow, it will frequently be noted that the Blackstonian view often expresses itself as a geographical view of privilege: it focuses on absolutely protecting from interference by any outside power actions that take place within the physical confines of the House. In the Blackstonian paradigm, the promotion of democratic values requires an absolute commitment to bolstering the power of the House of Commons, the only democratic institution in the state. On this view, anything threatening the power of the House constitutes a threat to those democratic values. The function of privilege, then, is to protect those values by protecting the power of the House, at almost any cost.
This intense focus on the powers of the House means that the Blackstonian conception of the role of privilege has almost nothing to say about ordinary subjects (that is, constituents). Indeed, if anything, the Blackstonian paradigm views the public and the press as potential threats, rather than as essential components of the democratic system. Because they are so thoroughly left out of the equation, Blackstone's formula has the potential to cause them great mischief. One of the functions of law is to provide for stability of expectations. By arguing that the outlines of parliamentary privilege ought to remain indefinite, Blackstone is, effectively, denying protection of the law to citizens in any case in which Parliament might choose to assert privilege. It ought, then, to come as no surprise that the passage quoted above comes just a few short pages after Blackstone's insistence that Locke was wrong to assert that ultimate sovereignty remains in the people. Instead, Blackstone tells us, Parliament alone
hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms.
In a time in which the power of Parliament is precarious, the function of privilege must be to do everything possible to shore up that power and to ensure that the other great powers in the state - the monarch and the nobility - cannot invade it. For a liberal in such times, the first imperative is protecting the Commons, as the only democratic organ in the state. Ensuring a tight nexus between the actions of the Commons and the wishes of its constituents was an afterthought, if it was a thought at all. Indeed, Blackstone seems at times simply to have assumed that protecting the House of Commons was tantamount to protecting the rights of citizens. For Blackstone, then, the primary function of parliamentary privilege was the defense of a sovereign legislature against encroachments by a jealous monarch or nobility. This view of the function of privilege, which appears both in Blackstone's theoretical writings and in his writings from the bench, led to the conclusion that its protection justified significant impositions on the rights of British subjects, as well as an insulated attitude that largely neglected any role for constituents.
THE MILLIAN PARADIGM
As Carl Wittke has noted, during the nineteenth century
the House of Commons became more and more a truly representative body, the organ of the people, and the real power in the state. As such, its position became more and more secure, and sweeping claims of privilege were no longer so necessary to protect it in the exercise of its legislative activities, and to guard it against encroachments from Crown, Lords, and courts.
(Continues...)
Excerpted from Democracy's Privileged Few by Josh Chafetz Copyright © 2007 by Yale University Press . Excerpted by permission.
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