Georgetown Center for the Constitution

[F]or any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.

Related Citations

Christopher M. Kieser, Note, In Defense of Rayburn House: Why the Supreme Court Should Recognize an Evidentiary Privilege of Non-Disclosure in Its Speech or Debate Clause Jurisprudence, 88 Notre Dame L. Rev. 1007 (2012).

Eric R. Nitz, Comparing Apples to Apples: A Federalism-Based Theory for the Use of Founding-Era State Constitutions to Interpret the Constitution, 100 Geo. L.J. 295 (2011).

Relying on United States v. Brewster to assert that the purpose of the Speech or Debate Clause served a different purpose in American law (to preserve legislative independence) than in English law (to preserve legislative supremacy).

James Walton McPhillips, Note, “Saturday Night’s Alright for Fighting”: Congressman William Jefferson, the Saturday Night Raid, and the Speech or Debate Clause, 42 Ga. L. Rev. 1085 (2008).

Arguing that the rejection of Madison’s proposal evinces an intent that the clause be construed broadly.

Ashutosh Bhagwat, Posner, Blackstone, and Prior Restraints on Speech, 2015 BYU L. Rev. 1151 (2016).

Arguing for a relationship between First Amendment free speech and the Speech or Debate Clause with reference to the public pre-revolutionary understanding of parliamentary privilege.

Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885 (2003).

Responding to Akhil Amar’s intratextual argument about the meanings of “speech” in the Speech or Debate Clause and the First Amendment and arguing that referencing one to inform the other could result in serious error.

Paul Finkelman, Book Review: Speech, Press, and Democracy, 10 Wm. & Mary Bill Rts. J. 813 (2002).

Arguing that the Framers inserted the Speech or Debate Clause with the Crown’s history of limiting and censoring public debate in mind.

Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History 100 (2000).

Quoting the essayist John Thomson, arguing in 1801 for citizen free speech coextensive with legislative privilege: “Free discussion, he insisted, is ‘an inherent rights, and of a nature not to be delegated; it must of course always continue with the people. It will also appear, that this right is guarantee’d to them by the Constitution of their Government.’” “’Why,’ Thomson demanded, ‘should they who are the servants or agents of the people . . . impose restrictions upon the thoughts, words, or writings of their sovereign?’”

Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999).

Looking across clauses of the Constitution to determine the meaning of “speech” across the document and arguing that it means political, not commercial, speech.

Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998).

Noting origins of state and federal Speech or Debate Clauses and concluding that prefatory or “purpose” language in state speech and debate clauses would not seem to justify negating the operative clause based on changed circumstances.

Charles W. Johnson IV, The Doctrine of Official Immunity: An Unnecessary Intrusion into Speech or Debate Clause Jurisprudence, 43 Cath. U. L. Rev. 535 (1994).

Contending that “[t]he Framers incorporated the Speech or Debate Clause into the Constitution to insure the independence of the congressional legislative mandate” and so the Clause provides for absolute immunity that was “confined to the legislative sphere.”

David S. Bogen, The Origins of Freedom of Speech and Press, 42 Md. L. Rev. 429 (1983).

Noting the prominent sources for understanding the First Amendment, including the Speech or Debate Clause.

David M. Lederkramer, A Statutory Proposal for Case-By-Case Congressional Waiver of the Speech or Debate Privilege in Bribery Cases, 3 Cardozo L. Rev. 465 (1982).

Arguing that the rejection of Madison’s proposal to more specifically define the legislative privilege evinces intent to allow the courts to define the scope of the Speech or Debate Clause.

Dorian Bowman & Judith Farris Bowman, Article I, Section 5: Congress’ Power to Expel–An Exercise in Self-Restraint, 29 Syracuse L. Rev. 1071 (1978).

Noting that the Speech or Debate Clause was modeled after The English Bill of Rights of 1689, which was a response to the Crown’s practice of using criminal and civil law to punish and intimidate legislators.

Robert J. Palmer, The Case for a Speech or Debate Privilege for State Legislators in Federal Courts, 13 Val. U. L. Rev. 501 (1978).

Discussing several instances in pre-American English history illustrating parliamentary attempts to define the scope of legislative privilege–a predecessor of the Speech or Debate Clause.

Alexander J. Cella, The Doctrine of Legislative Privilege of Speech or Debate: The New Interpretation as a Threat to Legislative Coequality, 8 Suffolk U. L. Rev. 1019 (1974).

Citing the Massachusetts Declaration of Rights for the proposition that “[t]he freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.”