ArtI.S6.C1.3.2 Historical Background on Speech or Debate Clause

Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They 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 text and purpose of the Speech or Debate Clause can be traced to Parliament’s historic struggles for supremacy with the English monarch.1 Prior to 1689, the English Crown had repeatedly used both the power of prosecution, and its control over the courts, to punish, suppress, or intimidate Members of Parliament who had made statements critical of the Crown during parliamentary debates.2 The common law of seditious libel “was interpreted with the utmost harshness against those whose political or religious tenets were distasteful to the government,” and used to imprison “disfavored” Members of the House of Commons.3 Following the Glorious Revolution and the new ascension of parliamentary power, the English Bill of Rights of 1689 sought to combat these past abuses by ensuring parliamentary independence through the establishment of a legislative privilege. That seminal document provided that “the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 4

Although English history and practice is essential to a complete understanding of the Clause, the Court has noted that the Clause must nevertheless be “interpreted in light of the American experience, and in the context of the American constitutional scheme of government . . . .” 5 The early American “experience” began with colonial charters and early state constitutions, many of which included some form of legislative privilege that generally tracked the language of the English Bill of Rights.6 Following the American Revolution, the Articles of Confederation adopted language explicitly enshrining legislative privilege into the Federal Government structure, providing that “[f]reedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress. . . .” 7

The current text, which draws its key terms “[s]peech,” “[d]ebate,” and “questioned” directly from the English Bill of Rights, was adopted at the Constitutional Convention without significant discussion or debate.8 In light of the absence of any contrary intent, and despite the fact that early American history did not “reflect” the same “catalogue of abuses at the hands of the Executive that gave rise to the privilege in England,” 9 it may nonetheless be “reasonably inferred that the framers of the Constitution meant” to incorporate the principles underlying the legislative privilege established in England through the English Bill of Rights “by the use of language borrowed from that source.” 10 James Wilson, one of the few Members of the Constitutional Convention to comment on the Clause, called the provision “indispensably necessary” to the “discharge” of the “publick [sic] trust.” 11 His view was that Members of Congress must be clothed with the “fullest liberty of speech” so as to “be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.” 12 The Clause, therefore, appears to have been adopted for the same basic purpose that undergirded its English and early American ancestors: to preserve the independence and integrity of individual Members of the legislative body by “prevent[ing] intimidation by the executive and accountability before a possibly hostile judiciary.” 13 As such, it represents a key pillar of the American separation of powers.

Preventing such intimidation is not “the sole function of the Clause.” 14 The Clause also serves a good governance role, effectively barring judicial or executive processes that may “disrupt” or “distract[ ]” from a Member’s representative or legislative obligations.15 Consistent with this anti-distraction rationale, the Clause’s broad proscription that Members not be “questioned in any other place” has been interpreted as limiting not only actions initiated by the Executive Branch—which clearly implicate the separation of powers—but also private civil suits initiated by members of the public—which generally implicate the separation of powers only to a lesser degree.16

United States v. Johnson, 383 U.S. 169, 178–79 (1966) (describing the Clause as “the culmination of a long struggle for parliamentary supremacy” in which “successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators.” ). For a thorough discussion of the historical evolution of the legislative privilege associated with the Clause see Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 201–10 (2017). back
Johnson, 383 U.S. at 177–79. back
VI Holdsworth, A History of English Law 214 (1927). back
1 W. & M., Sess. 2, c.2. back
United States v. Brewster, 408 U.S. 501, 508 (1972). back
Kilbourn v. Thompson, 103 U.S. 168, 201–02 (1881); Tenney v. Brandhove, 341 U.S. 367, 372–73 (1951). back
Articles of Confederation of 1781, art. V; Johnson, 383 U.S. at 177. back
Johnson, 383 U.S. at 177 (citing V Elliot’s Debates 406 (1836 ed.)). back
Brewster, 408 U.S. at 508. back
Kilbourn, 103 U.S. at 202. back
1 The Works of James Wilson 421 (R. McCloskey ed., 1967); see also 1 Joseph Story, Commentaries on the Constitution of the United States § 866 (1833) ( “The next great and vital privilege is the freedom of speech and debate, without which all other privileges would be comparatively unimportant or ineffectual.” ). back
1 The Works of James Wilson 421 (R. McCloskey ed., 1967). back
See Johnson, 383 U.S. at 180–81 (noting that “it is apparent from the history of the clause that the privilege was [ ] born primarily of a desire . . . to prevent intimidation by the executive and accountability before a possibly hostile judiciary.” ). back
Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975). back
Id. at 503 ( “Just as a criminal prosecution infringes upon the independence which the Clause is designed to preserve, a private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation. Private civil actions also may be used to delay and disrupt the legislative function.” ); Brewster, 408 U.S. at 507 (noting that the Clause exists to “protect the integrity of the legislative process by insuring the independence of individual legislators” ); Powell v. McCormack, 395 U.S. 486, 505 (1969) (stating that “[t]he purpose of the protection afforded legislators is . . . to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions” ); Tenney v. Brandhove, 341 U.S. 367, 377 (1951) ( “Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good . . . The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial. . . .” ). back
Eastland, 421 U.S. at 503 (emphasis added). Even civil suits implicate the separation of powers principles that underlie the Clause as any court order directed at a Member could be viewed as a clash between the judicial and legislative powers. See id. ( “[W]hether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled.” ). back