Eleanor Finch
The concept of a privileged position in the constitution refers to the idea that certain individuals or groups are afforded special rights, immunities, or advantages due to their specific roles or offices. One notable example is executive privilege, which pertains to the authority of the President and, to a lesser extent, other members of the executive branch, such as the vice president and cabinet members. Executive privilege allows them to withhold certain information or documents from the legislative or judicial branches, promoting candor in the decision-making process and protecting the effective discharge of their powers. This privilege has been recognized by the Supreme Court as deriving from the constitutional separation of powers, though it is not explicitly mentioned in the Constitution. The scope of executive privilege has evolved through judicial interpretation, with notable cases like United States v. Nixon shaping its boundaries.
| Characteristics | Values |
|---|---|
| Privilege from Arrest | The privilege from arrest is limited to arrests in civil cases and does not include criminal cases. |
| Executive Privilege | A qualified privilege that allows the President and their advisers to withhold certain information from the Legislative or Judicial Branch. |
| Privileges and Immunities Clause | Protects the fundamental rights of individual citizens by restraining state efforts to discriminate against out-of-state citizens. |
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What You'll Learn
Privilege from arrest
The Privilege from Arrest Clause in Article I, Section 6, Clause 1 of the US Constitution provides that members of Congress are immune from arrest, except in cases of treason, felony, or breach of the peace. This privilege from arrest applies only when members are in attendance at their respective houses, and when travelling to and from sessions.
The Supreme Court has interpreted the phrase "treason, felony, and breach of the peace" to encompass all criminal offences. However, the Williamson Court held that the privilege from arrest was confined to civil cases, based on the ordinary meaning of the words and their understanding in English law prior to the American Revolution. This interpretation has been supported by subsequent Supreme Court decisions, such as Gravel v. United States, which noted that the privilege only applies to arrests in civil cases.
The rationale behind the Privilege from Arrest Clause is that members of legislative bodies have superior duties to the legislative process and their constituents. Justice Joseph Story, in his Commentaries on the Constitution of the United States, explained that when a representative or senator is withdrawn from their seat by a summons, the people they represent lose their voice in debate and vote. Therefore, the privilege is deemed to be not just for the member or their constituents, but also for the house.
The Privilege from Arrest Clause has been the subject of debate, with some arguing that it should apply to all criminal offences, while others believe it should be limited to crimes involving violence and public disturbance. However, it is important to note that the privilege does not prevent members of Congress from being served with subpoenas or testifying as witnesses in criminal cases.
In conclusion, the Privilege from Arrest Clause in the US Constitution provides immunity from arrest for members of Congress, except in cases of treason, felony, or breach of the peace, and only during their attendance at congressional sessions or travel to and from these sessions. The interpretation of this clause has been shaped by Supreme Court decisions and the commentaries of justices, who have emphasised the importance of legislative representation and the limited scope of the privilege in civil cases.
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Executive 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 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. The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon in the context of a subpoena emanating from the judiciary instead of Congress.
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The Privileges and Immunities Clause
The key purpose of the Privileges and Immunities Clause is to unify a collection of independent sovereign states into one nation. It achieves this by preventing states from treating citizens of other states in a discriminatory manner and requiring states to treat out-of-state citizens as native citizens or residents. This includes protecting the right to interstate travel, the right to own property, the right to free speech, the right to assemble, and the right to keep and bear arms.
The clause has been interpreted by several Supreme Court justices over the years, including Justice Bushrod Washington, who in 1823 wrote that the protections provided by the clause are confined to privileges and immunities that are "fundamental" and have "at all times, been enjoyed by the citizens of the several states". In the Corfield case, Justice Washington's opinion did not suggest that the clause addresses how a legislature must treat its own citizens. However, in the Magill v Brown case, Justice Henry Baldwin, who succeeded Justice Washington, stated that the clause grants "the citizens of all the other states of the Union, the privileges and immunities of the citizens of this state".
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Congressional investigations
The term "privileged" in the context of the US Constitution refers to a right or immunity granted as a benefit or advantage, specifically attached to a position or office. There are several types of privileges outlined in the Constitution, including those pertaining to the Executive Branch and Congress.
Executive Privilege
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. While not explicitly mentioned in the Constitution, the Supreme Court has ruled that it is derived from the constitutional separation of powers. This privilege is meant to ensure candour in the decision-making process, allowing for free discussion and deliberation without fear of public disclosure. The scope of executive privilege has evolved through judicial interpretation, with the Nixon era being a defining moment due to lawsuits seeking access to President Nixon's tapes and materials.
Congressional Privilege
Congressional privilege, also known as legislative privilege, refers to the rights and immunities granted to members of Congress. One example is the privilege from arrest, which historically prevented the arrest of members of Congress during the sitting of the House to ensure they could focus on public business. However, this privilege has been interpreted to apply only to arrests in civil cases and not criminal ones. Additionally, Congress has the power to subpoena its own members, as seen in the case of United States v. Cooper.
Privileges and Immunities Clause
The Privileges and Immunities Clause, found in Article IV, Section 2 of the Constitution, protects the fundamental rights of individual citizens. It ensures that citizens of each state are entitled to the same privileges and immunities as citizens of other states, preventing discrimination and requiring equal treatment. However, this clause does not extend to commercial activity or corporations.
Fifth Amendment Privilege
The Fifth Amendment to the US Constitution provides a privilege protecting individuals from being compelled to make self-incriminating statements. This right is considered a fundamental guarantee to all persons under the Constitution.
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Presidential communications privilege
Executive privilege is a qualified privilege that is not absolute or guaranteed. It is usually considered based on common law rather than the separation of powers. However, the presidential communications privilege, a specific instance of executive privilege, is considered to be rooted in the separation of powers. This makes it more difficult to overcome than the deliberative process privilege.
The presidential communications privilege can only protect communications sent or received by the president or their immediate advisors. It does not extend to subpoenas issued in criminal or civil cases. The Nixon Court recognised that presidential communications have a presumptive privilege fundamental to the functioning of the government. However, it clarified that executive privilege does not allow the president to avoid a subpoena.
The scope of executive privilege has evolved through the Supreme Court's interpretation of constitutional law. During the Aaron Burr trial in 1807, Chief Supreme Court Justice John Marshall presided and issued a subpoena to then-President Thomas Jefferson, who released some documents. This established that presidents may be subject to court-issued subpoenas and must adhere to the general provisions of the Constitution.
The Supreme Court has long recognised that the public "has a right to every man's evidence". It has held that the president may have to testify or produce documents in criminal proceedings. This was further supported by the Nixon v. Administer of General Services case, which established the president's right to assert executive privilege.
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Frequently asked questions
A privileged position in the US Constitution refers to a right or immunity granted as a benefit or advantage to a specific person or office. This includes executive privilege, which allows the President and their advisers to withhold certain information from the Legislative or Judicial Branch.
Executive privilege is a qualified privilege, not expressly named in the US Constitution, that allows the President and their advisers to withhold certain information in the interest of candid decision-making. While claims of executive privilege are presumed valid, disputes are typically settled in court.
In United States v. Burr, Chief Supreme Court Justice John Marshall ruled that President Thomas Jefferson could be subject to court-issued subpoenas, but was not required to hand over all requested documents. In United States v. Nixon, the Supreme Court ruled that executive privilege derives from the constitutional separation of powers, allowing Nixon to withhold some information but not to avoid a subpoena.
Another type of privilege in the US Constitution is the Privileges and Immunities Clause, found in Article IV, Section 2. 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 residents.
