Omar Bennett
The term privilege in the context of the constitution refers to a right or immunity granted as a benefit, advantage, or favour, often attached to a specific position or office. The concept of privilege in the constitution encompasses various aspects, including executive privilege, privileges and immunities clause, privilege from arrest, and specific privileges under amendments. Executive privilege, for example, refers to the authority of the President to withhold certain information or documents from other branches of the government, derived from the constitutional separation of powers. The Privileges and Immunities Clause, on the other hand, ensures that citizens of each state are entitled to the same fundamental rights and protections as citizens of other states. These are just a few examples of how the concept of privilege is incorporated and interpreted within the constitution.
| Characteristics | Values |
|---|---|
| Executive privilege | The authority of the President to withhold documents or information from the Legislative or Judicial Branch of the government |
| The doctrine is not mentioned in the Constitution but is derived from the constitutional separation of powers | |
| It ensures candour in the decision-making process | |
| It is not absolute or guaranteed | |
| It does not extend to subpoenas issued in criminal or civil cases | |
| It can be invoked by the vice president, cabinet members, and executive agencies | |
| Privileges and Immunities Clause | Protects the fundamental rights of individual citizens |
| Restrains State efforts to discriminate against out-of-state citizens | |
| Requires states to treat out-of-state citizens as native citizens or residents of the state | |
| Does not extend to all commercial activity and does not apply to corporations, only citizens | |
| Privilege from Arrest | Extends to all crimes, not just civil cases |
| Does not exempt members of Congress from the service, or the obligations of a subpoena |
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What You'll Learn
Executive privilege
The Constitution does not expressly confer upon the Executive Branch any such privilege. However, the Supreme Court has held that executive privilege derives from the constitutional separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution. The privilege's foundation lies in the proposition that the President and his advisors must be free to discuss issues candidly, express opinions, and explore options without fear that those deliberations will later be made public.
There is not a single executive privilege, but a suite of distinct privileges, each of different—though sometimes overlapping—scope. For example, the deliberative process privilege is often considered to be rooted in common law, while the presidential communications privilege is often considered rooted in the separation of powers, thus making the deliberative process privilege less difficult to overcome. A significant requirement of the presidential communications privilege is that it can only protect communications sent or received by the president or his immediate advisors.
The United States v. Nixon case, also known as the Watergate Scandal, established that even a President has a legal duty to provide evidence of their communications with aides when the information is relevant to a criminal case. Chief Justice Warren Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.
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Privilege from arrest
The Privilege from Arrest Clause in the US Constitution provides that members of Congress are protected from arrests and imprisonment while attending, travelling to, and returning from Congress. This privilege is outlined in Article I, Section 6, Clause 1 of the Constitution, also known as the Speech or Debate Clause, which states that:
> [t]he Senators and Representatives [...] 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.
This privilege is rooted in the idea that members of legislative bodies have a "superior duty" to the legislative process and their constituents. As such, they cannot be diverted from their public duties by civil lawsuits. However, this privilege does not apply to criminal cases of treason, felony, or breach of the peace.
The privilege from arrest has been reaffirmed in several court cases, including Bolton v. Martin (1788), where it was recognised that members of the Pennsylvania Convention on ratifying the Constitution ought not to be distracted by lawsuits during their term. Similarly, in Irwin (1790), it was held that a member of the general assembly is "undoubtedly, privileged from arrest, summons, citation, or other civil process, during his attendance on the public business confided to him".
Despite this privilege, members of Congress can still be served with subpoenas. In United States v. Cooper (1800), Thomas Cooper, a newspaper publisher, was indicted for libelling President John Adams. The court allowed Cooper to subpoena members of Congress to testify as witnesses, stating that there was no privilege exempting members of Congress from the obligations of a subpoena.
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The Privileges and Immunities Clause
The clause was intended to create a sense of unity among the independent sovereign states that formed the nation, fostering a national economic union. Over the years, the Supreme Court has recognised and affirmed certain rights protected by the clause. For instance, in Oyama v California, the Court upheld the right to own property for American citizens, regardless of their state of residence.
The scope of the rights protected by the Privileges and Immunities Clause has been a subject of debate due to its ambiguous nature. However, various federal court cases have helped clarify its interpretation. In the Slaughter-House Cases, the Court acknowledged several rights protected by the clause, including the right to government positions, the right of assembly, habeas corpus, and the use of navigable waters. In Twining v New Jersey, the Court held that the clause protections encompassed the right to travel between states, the right to enter public lands, and the right to petition and communicate with the federal government.
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Presidential communications privilege
The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the Executive Branch from the Legislative or Judicial Branch of the government. While the Constitution does not expressly confer upon the Executive Branch any such privilege, the Supreme Court has held that executive privilege is necessary for the discharge of a President's powers and is constitutionally based on the separation of powers.
The presidential communications privilege was definitively established during the Nixon era, in the 1970s, with the Watergate-related lawsuits seeking access to President Nixon's tapes and other materials. The Nixon cases remain the leading decisions on the scope of the presidential communications privilege.
The Supreme Court has recognised the "valid need for protection of communications between high Government officials and those who advise and assist them". It has also stated that to allow for the public dissemination of such communications would impair the decision-making process and upset the constitutional balance of a workable government.
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Law Enforcement Privilege
The Law Enforcement Privilege is a common-law doctrine that allows police and prosecutors to withhold information from the defence about how their investigative methods work. The privilege is based on the idea that law enforcement must be able to carry out their duties without fear of interference or scrutiny from Congress or the public. This includes protecting the confidentiality of law enforcement information and protecting the mental processes of law enforcement officials.
The scope and source of the Law Enforcement Privilege are not always clear, especially when it is asserted during congressional investigations. In these cases, committees have objected to its use, arguing that it is a nondisclosure policy rather than a constitutionally based privilege.
The Law Enforcement Privilege is meant to protect sensitive law enforcement materials and allow for unbiased, professional judgments about potential criminal and civil law enforcement cases. However, critics argue that it can also be used to systematically thwart criminal defendants' access to evidence, leading to unfair advantages and even wrongful convictions.
To address this concern, it has been suggested that courts should evaluate privilege claims by considering the marginal risk of leaking posed by in-court disclosure. Judges could also demand to know what conditions law enforcement previously imposed on access to information, allowing for a public adjudication that does not jeopardize legitimate privilege claims.
Overall, the Law Enforcement Privilege seeks to balance the need for effective law enforcement with the rights of criminal defendants and the public's right to know.
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Frequently asked questions
A privilege in the context of the US Constitution is a right or immunity granted as a benefit, advantage, or favour. It is derived from the Latin 'privilegium', which means a law affecting a specific person or special right.
Executive privilege is a legal doctrine that allows the President of the United States and their advisers to withhold certain information or documents from the Legislative or Judicial Branch of the government. It is not explicitly mentioned in the Constitution but has been upheld by the Supreme Court.
The Privileges and Immunities Clause is found in Article IV, Section 2 of the US Constitution. It states that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states". This clause protects the fundamental rights of individual citizens by preventing states from discriminating against out-of-state citizens and requiring them to be treated as native citizens.
Some examples of privileges in the US Constitution include the Fifth Amendment privilege against self-incrimination, the protection of reporters from revealing their sources, and the privilege from arrest for members of Congress in certain cases.
