Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions

by Josh Chafetz

This book is the first to compare the freedoms and protections of members of the United States Congress with those of Britain’s Parliament. Placing legislative privilege in historical context, Josh Chafetz explores how and why legislators in Britain and America have been granted special privileges in five jurisdictional conflicts between the courts and the legislative houses, freedom of speech, freedom from civil arrest, contested elections, and the disciplinary powers of the houses.
Legislative privilege is a crucial component of the relationship between a representative body and the other participants in government, including the people. In recounting and analyzing the remarkable story of how parliamentary government emerged and evolved in Britain and how it crossed the Atlantic, Chafetz illuminates a variety of important constitutional issues, including the separation of powers, the nature of representation, and the difference between written and unwritten constitutionalism. This book will inspire in readers a much greater appreciation for the rise and triumph of democracy.

320 pages, Hardcover

First published January 1, 2007

Reviews

[Andrew MacKie-Mason · Rating 4 out of 5]

All in all, this was a very interesting comparison of an aspect of British and American constitutionalism. I learned a lot about the development of the British parliament in particular. I have two primary criticisms. First, at times Chafetz was straining to fit things into his Blackstone/Mill framework. That's somewhat inevitable when a theory reduces a complex phenomenon to a single dimension. Such theories are still valuable, and Chafetz acknowledged the limitations at the end. But more interpretative modesty throughout might have made it more convincing on the whole.

Second, at times the American half of the argument seemed more unconvincing because Chafetz was too quick to discard the evolved understanding of the Constitution in the cases by saying the cases were simply wrong. In part, that's a philosophical/methodological difference over proper constitutional interpretation, but even from an originalist perspective the analysis probably could have taken the cases more seriously.

That said, this was still a very interesting book, about an area I didn't know a lot about, and it gave me new ideas to think about.