Erin Brown (Virginia Law Review) has posted The Lost Judicial Review Function of the Speech or Debate Clause (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
The prevailing understanding of the Speech or Debate Clause of the United States Constitution is that it was transplanted without significant modification from Article 9 of the English Bill of Rights of 1689. This Note challenges that view by highlighting overlooked deviations which inform how this legislative privilege was transfigured from a system of parliamentary sovereignty to one in which the Constitution is supreme. Courts and commentators have neglected to take note that the Speech or Debate Clause, unlike Article 9, provides no institutional shield for the legislature in the exercise of its internal proceedings. Article 9’s protection of “proceedings in Parliament” from judicial review was omitted from the Speech or Debate Clause, and the Clause was also reconfigured to name individual members of Congress as the possessors of the legislative privilege.
This novel textual analysis invites questioning of an arguably undeserved discrepancy in judicial enforcement of the Constitution as between federal statutes and congressional proceedings—those investigatory and lawmaking processes which lead up to the enactment of statutes. Favoring more robust judicial review of congressional proceedings, this Note identifies matters as to which a more textually grounded understanding of the speech or debate privilege could encourage change. Potential changes include permitting motive inquiries when individuals challenge congressional investigations as infringing their fundamental rights, lifting the enrolled bill doctrine and the extreme deference which veil the lawmaking process, and differentiating between lawsuits against individual legislators and those against collective legislative bodies.
