CONGRESSIONAL PRIVILEGES AND IMMUNITIES

The Constitution specifically protects members of Congress against interference with their deliberative function. The special privileges and immunities attendant on congressional membership are contained in the first clause of Article I, section 6, of the Constitution. The Framers of the Constitution, familiar with the devices used by the British king against members of Parliament and by royal governors against members of the provincial legislatures, sought to insulate the members of the federal legislature against pressures that might preclude independence of judgment.

The privilege from arrest, other than for felony, or breach of the peace, has been known in Anglo-American constitutional history since the advent of parliaments; william blackstone cited an ancient Gothic law as evidence of the privilege's immemorial origins. The English Parliament claimed freedom of debate, that is, immunity from prosecution or civil lawsuit resulting from utterances in Parliament, at least from the thirteenth century; that immunity was finally established in the English bill of rights (1689). In America, privilege from arrest during legislative sessions was first granted in Virginia in 1623, and freedom of debate was first recognized in the fundamental orders of connecticut (1639).

The articles of confederation extended both the privilege from arrest and the freedom of debate to members of Congress, in words transcribed almost verbatim from the English Bill of Rights: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace." At the constitutional convention, these congressional privileges and immunities first appeared in the report of the Committee of Detail; they were agreed to without debate and without dissent. The Committee of Style gave final form to the wording of the clause.

The privilege from arrest, limited as it is to arrest for debt, no longer has any practical application. The immunity from having to answer in court, or in any other place out of Congress, for congressional speech or debate is now primarily a shield against civil actions by private parties rather than against an executive jealous of his prerogative. That shield has been expanded to protect the whole legislative process, but not, as one senator learned to his chagrin in hutchinson v. proxmire (1979), to every public utterance of a member of Congress concerning a public issue.

Dennnis J. Mahoney
(1986)

Bibliography

Wormser, Michael D., ed. 1982 Guide to Congress, 3rd ed. Pages 850–855. Washington, D.C.: Congressional Quarterly.