Journal of Criminal Law and CriminologyVolume 68Issue 1 March Article 3

Spring 1977

A Speech or Debate Privilege for State Legislatorswho Violate Federal Criminal Laws

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Recommended CitationA Speech or Debate Privilege for State Legislators who Violate Federal Criminal Laws, 68 J. Crim. L. & Criminology 31 (1977)

THEJOURNAL OF CRIMINAL LAW & CRIMINOLOGY

Copyright © 1977 by Northwestern University School of LawVol. 68, No. I

Printed in U.S.A.

COMMENTSStudent contributors to this issue are Cheryl A. Knowles, Scott A. Young, Kathryn L.

Knudson, Andrea Sue Kramer, and Douglas M. Palais.

A SPEECH OR DEBATE PRIVILEGE FOR STATE LEGISLATORS WHOVIOLATE FEDERAL CRIMINAL LAWS?

The concept of legislative independence inspeech or debate is thoroughly entrenched inAmerican political thought. Of common laworigin, the concept is now embodied in Article 1§ 6 cl. la of the Federal Constitution whichspecifically provides that "for any Speech orDebate in either House [United States Senatorsand Representatives] shall not be questioned inany other place."' Most state constitutions havesimilar provisions.2 However, although the

I Article I, Section 6 also provides members ofCongress with a separate privilege from arrest duringsessions of Congress.

The Senators and Representatives shall receive aCompensation for their Services, to be ascer-tained by Law, and paid out of the Treasury ofthe United States. They shall in all Cases, exceptTreason, Felony and Breach of the Peace, beprivileged from Arrest during their Attendenceat the Session of their respective Houses, and ingoing to and returning from the same; and forany Speech or Debate in either House, they shallnot be questioned in any other Place.No Senator or Representative shall, during theTime for which he was elected, be appointed toany civil office under the Authority of the UnitedStates, which shall have been created, or theEmoluments whereof shall have been encreasedduring such time; and no Person holding anyOffice under the United States, shall be a Mem-ber of either House during his Continuance inOffice.

U.S. CONST. art. I, § 6.2 The Illinois constitutional provision is fairly typi-

cal:A member [of the General Assembly] shall not beheld to answer before any other tribunal for anyspeech or debate, written or oral, in eitherHouse....

ILL. CONST. art. IV, § 12.Florida is the only state with no constitutional pro-

vision concerning legislative privilege of any kind.The constitutions of California, Iowa, Mississippi,Nevada and South Carolina provide only a privilegefrom arrest. (CAL. CONST. art. IV, § 11; IowA CONST.art. III, § 11; MIss. CONST. art. IV, § 48; Nzv.CONST. art. IV, § 11; S.C. CONST. art. 3, § 14. NorthCarolina gives legislators a right to protest action of

speech or debate privilege is an accepted part ofthe American political tradition, difficult ques-tions concerning its scope and meaning con-tinue to arise in the process of applying theprivilege to the facts of specific cases.

One particularly complex question was raisedrecently in United States v. Craig,3 a SeventhCircuit case in which the court was asked todetermine to what extent, if any, state legislatorsare protected by a speech or debate privilege in

federal criminal prosecutions. The legislators inthe Craig case were charged with violating theHobbs Act4 and the mail fraud statute' in theirconduct as state legislators. Had they been fed-eral congressmen, a significant portion of theGovernment's evidence against them wouldhave been barred by the federal speech or de-bate clause. Had they been prosecuted by stateauthorities for violation of a state law, the Illi-nois constitutional speech or debate clause6

would have had the same effect. The Craigcourt, in essence, had to determine whetherthis same evidence could be used against thelegislators simply because it was the federalgovernment that was prosecuting them forcommission of a federal crime. Thus far thecase has generated three different judicialopinions on this question. The district courtheld that the state legislators in question wereprotected by the Illinois constitutional speechor debate clause.7 On appeal, a majority of a

the legislature. (N.C. CONST. art. 2, § 18). A list of thevarious state speech or debate clauses or similar pro-visions can be found in Tenney v. Brandhove, 341U.S. 367, 375 n.5 (1951).

3 537 F.2d 957 (7th Cir. 1976).4 18 U.S.C. § 1951 (1970).5 18 U.S.C. § 1341 (1970).6 ILL. CONST. of 1970 art. IV, § 12.

The unpublished district court opinion and or-ders were included in the brief for the United Statesto the court of appeals. See, Brief for the UnitedStates appendix A, B, C. 528 F.2d 773 (7th Cir. 1976).

COMMENTS

three judge panel of the court of appeals heldthat they were entitled to a federal common lawspeech or debate privilege." On rehearing,however, a majority of the full court held thatno such federal common law speech or debateprivilege exists. The legislators were only pro-tected by common law official immunity.9

This comment will review the Craig decisionsand the Supreme Court cases on which thejudges of the district and appellate courts re-lied. While, as will be seen, there are no Su-preme Court cases which speak directly to theproblems raised by a federal criminal prosecu-tion of a state legislator, it is the thesis of thiscomment that the third Craig opinion most ac-curately reflects the law of privilege as the Su-preme Court has articulated it, either directlyor by implication.

THE CRAIG DECISION

The District Court

In 1974, Robert Craig, Thomas Hanahan,and Louis Markert, members of the IllinoisHouse of Representatives, were indicted forextortion and mail fraud. Count one of theindictment charged them with obtaining $1500from members of the Illinois Car and TruckRenting and Leasing Association "under colorof official right" in violation of the Hobbs Act.'0

In count two they were charged with defraud-ing the citizens of Illinois of their right to loyaland honest representation "and their right tohave the legislative business of Illinois con-ducted honestly by accepting $1500 to block thepassage of a bill which would affect the automo-

8 United States v. Craig, 528 F.2d 773 (7th Cir.1976).

9 537 F.2d 957 (7th Cir. 1976).,0 18 U.S.C. § 1951 (1970).(a) Whoever in any way or degree obstructs,delays, or affects commerce or the movement ofany article or commodity in commerce, by rob-bery or extortion or attempts or conspires so todo, or commits or threatens physical violence toany person or property in furtherance of a planor purpose to do anything in violation of thissection shall be fined not more than $10,000, orimprisoned not more than 20 years, or both.(b) As used in this section-(2)The term "extortion" means the obtaining ofproperty from another, with his consent, in-duced by wrongful use of actual or threatenedforce, violence or fear, or under color of officialright....

bile leasing business. Their conduct was allegedto violate the mail fraud statute."

Prior to the indictment, Markert had beensubpoened to testify before the grand jury in-vestigating alleged corruption in the IllinoisGeneral Assembly. He had also voluntarily sub-mitted to interviews with United States postalinspectors and with an Assistant United StatesAttorney. On all occasions he was representedby counsel and was informed of his fifthamendment privilege against self incrimina-tion. He chose, nevertheless, to answer all ques-tions put to him during the investigation.

After the indictment, Markert moved to dis-miss on the grounds that the federal and Illi-nois speech or debate clauses' 2 constituted anabsolute bar to his prosecution. Although thedistrict court' 3 held that Markert was entitled tothe protection of the speech or debate clause ofthe Illinois constitution,' 4 it concluded that thescope of the clause was not so broad as to bar hisprosecution for the crimes of extortion andmail fraud. The speech or debate privilege op-erated as a substantive bar to prosecution onlyif legislative acts were made the basis of acharge or if inquiry into the legislative processwas a necessary and essential part of the prose-cution." Noting that "extortion and mail fraud

11 18 U.S.C. § 1341 (1970).Whoever, having devised or intending to deviseany scheme or artifice to defraud, or for obtain-ing money or property by means of false orfraudulent pretenses, representations, or prom-ises, or to sell, dispose of, loan, exchange, alter,give away, distribute, supply, or furnish or pro-cure for unlawful use any counterfeit or spuriouscoin, obligation, security, or other article, or any-thing represented to be or intimated or held outto be such counterfeit or spurious article, for thepurpose of executing such scheme or artifice orattempting so to do, places in any post office orauthorized depository for mail matter, any mat-ter of thing whatever to be sent or delivered bythe Postal Service or takes or receives therefrom,any such matter or thing, or knowingly causes tobe delivered by mail according to the directionthereon, or at the place at which it is directed tobe delivered by the person to whom it is ad-dressed, any such matter or thing, shall be finednot more than $1,000 or imprisoned not morethan five years, or both.11 See note 1 and note 2, supra.13 The opinion is unpublished. See note 7 supra.14 The court found that the federal speech or de-

bate clause protected only federal legislators. Brieffor the United States at app. 5."s Id. at app. 8. The court reached this conclusion

after an examination of United States v. Johnson, 383

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A SPEECH OR DEBATE PRIVILEGE

are in no conceivable way part of the legislativeprocess," and that the prosecution could pro-ceed "without inquiry into the legislative proc-ess," the court refused to dismiss the indict-ment. 16

Markert then moved to have his pre-indict-ment statements suppressed, claiming that theywere obtained in violation of the speech ordebate privilege. The court agreed that Mar-kert was entitled to an evidentiary privilege tothe extent that the government attempted toinquire into his motives for or actual perform-ance of legislative acts, and it ordered the sup-pression of certain portions of his testimonybefore the grand jury. Some of his statementsto the postal inspectors and the AssistantUnited States Attorney were suppressed aswell. In answer to the Government's argumentthat Markert had waived his privilege by volun-tarily making his statements, the court held thatthe speech or debate privilege was not personaland could not be waived by an individual legis-lator.1

7

The Panel Decision

The Government appealed the suppressionorder,' asserting that the Illinois speech ordebate clause could not be invoked by Markertbecause privilege under state law was inapplica-ble in federal criminal prosecutions. Both Rule26 of the Federal Rules of Criminal Procedureand Rule 501 of the Federal Rules of Evidenceprovide that privileges are to be controlled by"the principles of common law as they may beinterpreted by the courts of the United States inthe light of reason and experience." 9 The Gov-

U.S. 169 (1966), and United States v. Brewster, 408U.S. 501 (1971), cases in which the Supreme Courtreached a similar conclusion with regard to the scopeof the federal speech or debate clause. See discussionaccompanying notes 100-112 and notes 113-129 infra.

16 Brief for the United States at app. 8.'7 Brief for the United States at app. 15. This hold-

ing on the question of waiver was subsequently re-versed by the court of appeals panel decision, 528F.2d 773, 780 (7th Cir. 1976). The opinion of the fullcourt, after rehearing, did not reach the issue ofwaiver, 537 F.2d. 957, 958 (7th Cir. 1976). Because theissue of waiver is tangential to the focus of this com-ment, it will not be further discussed in the body ofthe paper.

18 18 U.S.C. § 3731 (1970) allows the Governmentto appeal interlocutory rulings on the suppression ofevidence.

" The language of both rules is essentially identicalexcept that Rule 501 contains an additional provision

ernment argued that no federal common lawspeech or debate privilege existed, and thatneither "reason" nor "experience" counseledthe creation of such a privilege in this case.20

A three judge panel of the Seventh Circuit,with one judge concurring only in the result2'agreed with the Government that under Rule501 and Rule 26 "the admissibility of evidence incriminal cases in federal courts is governed byfederal law and is not dependent upon diversestate laws, including state constitutional provi-sions. '22 The court, therefore, found that Mar-kert could not invoke the protection of thespeech or debate clause of the Illinois Constitu-tion.

The panel next considered whether Markertwas entitled to a federal common law speech ordebate privilege. 2 It briefly reviewed severalSupreme Court decisions interpreting thescope of the federal speech or debate privilege.Those decisions, according to the panel major-ity, indicate that the purpose of the federalprovision is to prevent legislators from beingthreatened by prosecutions and convictions forthe performance of their legislative duties. Toinsure this protection, the clause has both "sub-stantive and evidentiary elements:" legislative

that state law is to govern privileges in civil cases inwhich state law supplies the rule of decision.

20 In the alternative, the Government argued thatany privilege which did exist should be consideredpersonal and therefore waivable by the individuallegislator. Brief for the United States at 36.

21 528 F.2d 773 (7th Cir. 1976). Judge Cummingswrote the majority opinion for himself and JudgeKunzig, Judge of the United States Court of Claimssitting by designation. Judge Tone, whose positiondiffered substantially from that of the other twomembers of the panel, wrote a separate, concurringopinion which is discussed in the text accompanyingnotes 39-46 infra.

22 528 F:2d at 776.2' The court did not discuss whether the federal

speech or debate clause protects state legislators. OneFourth Circuit case, Eslinger v. Thomas, 476 F.2d225, 228 (4th Cir. 1973), suggests that the SupremeCourt extended the federal clause to the states inTenney v. Brandhove, 341 U.S. 376 (1951). However,such a suggestion seems clearly wrong. The SupremeCourt does not even consider Tenney a speech ordebate clause case. United States v. Brewster, 408U.S. 501, 516 n.10 (1972). Furthermore, no constitu-tional vehicle such as the fourteenth amendment ex-ists by which an article, rather than an amendment,of the Constitution can be made binding on the states,and Article I, § 6 on its face applies only to theFederal Congress. See, Brief for the United States at15 n.32.

COMMENTS

acts cannot be made the basis of civil or criminalliability, and legislators cannot be made to an-swer questions about either their legislative ac-tivities or their motives for performing thoseactivities.2 4 Only the evidentiary aspect of theprivilege was before the panel. The majoritycharacterized it as a "necessary prophylatic 25

and maintained that its purpose was "the sameas that of the substantive aspect of the Speechor Debate Clause: preservation of the inde-pendence of the legislature."2

The Government argued, however, that in-dependence of the legislature is only a concernwhen co-equal branches of the government areinvolved. At the federal level, the speech ordebate clause serves a separation of powerspurpose, "preserving the balance of poweramong the three co-equal branches of govern-ment.."27 Because the federal government wasprosecuting a state official in the instant case,there was no question of "intra-federal power"being upset:

The power to prosecute [Markert and the otherlegislators] . . . evolved from the co-equal func-tioning of all three federal branches. Congress... passed the laws on which the prosecutionrests; the executive ... elected to pursue thecase; and the judiciary awaits to hear it. 28

The real issue, according to the Government,was whether failure to recognize a legislativeprivilege for state legislators in federal courtwould interfere with a legitimate state interest,since under a federal system of governmentnational interests may not be protected "in waysthat . . . unduly interfere with the legitimateactivities of the states. '29 Although admittingthat states clearly have an interest in free legis-lative debate, the Government argued that ab-sence of legislative privilege would not hamperthat free debate. It maintained that the protec-tion of the first amendment and the doctrine ofofficial immunity would insure freedom ofspeech in state legislatures:

The first amendment, as interpreted today, pro-tects all citizens from criminal prosecution on

24 528 F.2d at 777.25 Id. at 778.26 Id.27 Brief for the United States at 29.2 8

Id.29 Id. at 30, quoting Younger v. Harris, 401 U.S. 37,

44 (1971).

the basis of the type of political expression whichgave rise to the doctrine of Speech or Debate.Absent separation of powers considerations,there is no corresponding benefit to be gainedfrom extending the privilege beyond the ambitof first amendment protections.To the extent that the first amendment wouldnot immunize state legislators from civil suits forlibel and slander, the doctrine of official immu-nity would provide the necessary protection.30

Furthermore, the Government argued, thestates have a legitimate interest in obtainingfederal assistance in the area of crime control,and that interest would be furthered "by thefederal government's attempt to use its re-sources to assist in excising the malignancy oflocal political corruption." 3'

The panel majority felt strongly that the gov-ernment's position ignored the basic concept offederalism envisioned by the drafters of theConstitution: the national government was de-signed to be one of limited powers and thestates were to continue as essential units of gov-ernment.32 According to the two judge major-ity, state legislators have as vital a role to play inthe government of a state as Congress has in thegovernment of the nation. Independence ofthe state legislatures cannot, therefore, be dis-missed as irrelevant.

Although the speech or debate privilege em-braces notions of the separation of powersamong co-equal branches of government, its pri-

30 Brief for the United States at 32 n.64. For its firstamendment argument the Government relied onBond v. Floyd, 385 U.S. 116 (1966), in which theSupreme Court said:

The manifest function of the First Amendmentin a representative government requires that leg-islators be given the widest latitude to expresstheir views on issues of policy.

385 U.S. at 136. This case is discussed in the textaccompanying notes 198-205 infra.

"' Brief for the United States at 32.32 The majority used the tenth amendment to but-

tress this argument: "The reservation of power forthe states is .. . the import of the Tenth Amend-ment .. " 528 F.2d at 778. Yet it is clear today, asone commentator has noted, that "the Tenth Amend-ment does not shield the States nor their politicalsubdivisions from the import of any authority affirm-atively granted to the Federal Government." E. COR-WIN, THE CONSTITUTION AND WHAT IT MEANS To-DAY, 372-73 (1974). Thus, if the federal governmenthas the power to reach the conduct of the legislators,the tenth amendment does not take away that powersimply because its exercise interferes with the state'sown exercise of power.

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A SPEECH OR DEBATE PRIVILEGE

mary message is that legislatures must be able todischarge their lawful responsibility in an atmos-phere free from the threat of interference byother governmental units. A legislator in consid-ering whether to support or oppose a proposedlaw must be free to reflect on the merits; he mustnot be deterred from advocating a position bythe threat of prosecution by a hostile executive.The evil is the fact of deterrence; whether thethreat emanates from the local or national exec-utive makes no difference.

This threat to the legislature's independenceis fundamentally inconsistent with the idea oflegislative action reflected in the policy, purposeand history of the privilege and inherent in thewords: "for any Speech or Debate in eitherHouse, they shall not be questioned in any otherPlace." U.S. CONST. art. I § 6. Deterring a legis-lator from advancing a point of view, or influ-encing how he votes by requiring him to explainhis motives before a grand jury is precisely theevil the speech or debate privilege intends topreventY'

Protection of the first amendment was not

enough because the amendment provides no

privilege against giving testimony, even if that

testimony involves inquiry into a legislator's

motive for a particular vote or other legislativeact.3 4 Consequently, "in view of the purposes ofthe speech or debate privilege, its common law

history, and the important role of the states in

governing the country," the majority concludedthat state legislators are protected in federal

criminal prosecutions by a federal common law

speech or debate privilege.3 5 The panel did

leave open the possibility that the privilege

might be abrogated by Congress in a narrowlydrawn statute,36 but it was unwilling to "abol-

ish"37 the privilege by "judicial fiat in a federal

criminal prosecution under a statute of general

applicability."3

33 528 F.2d at 778-79.34 Id. at 779.3 Id.

36 The court's position was similar to that of theCourt in United States v. Johnson, 383 U.S. 169(1966), in which the issue of whether inquiry might bemade into the legislative acts of Federal Congressmenin a prosecution under a narrowly drawn statutepassed by Congress in the exercise of its power toregulate congressional conduct was expressly leftopen.

3 528 F.2d at 779.38 528 F.2d at 779. Although the majority held that

Markert was protected by a federal common lawspeech or debate evidentiary privilege, it remandedthe case with directions to overrule the suppression

Judge Tone, concurring in the result,39

agreed that the Illinois constitutional speech ordebate clause was inapplicable in federalcriminal prosecutions. But he disputed thepanel majority's position that a legislator couldclaim a similar privilege under federal commonlaw. Citing the same cases as the majority, hemaintained that while state legislators are enti-tled to protection from liability for acts per-formed in furtherance of their legislative du-ties, the basis of that protection is not the fed-eral speech or debate clause, but the commonlaw doctrine of official immunity.40 As for theevidentiary privilege, Judge Tone asserted thatany privilege against disclosure must be "com-mensurate" with the underlying immunityfrom liability. But,

where there is no immunity, it would be incon-gruous if not useless, to recognize an evidentiaryprivilege. Accordingly, whether the claimed priv-ilege should be recognized as a development inthe federal common law of evidence depends onwhether there is an underlying immunity. 41

He then pointed out that the doctrine of officialimmunity has never been extended into thearea of criminal liability:

Immunity from civil but not criminal liability hasbeen regarded as sufficient to achieve the pur-pose of the doctrine of official immunity, whichis to promote independence and fearless dis-charge of duty on the part of the protectedofficials .

42

Therefore, according to Judge Tone, state leg-islators are subject to federal criminal liability ifthey violate a federal criminal statute, even ifthey are acting within their legislative role.

On the other hand, federal congressmenare afforded considerably broader protectionby the federal speech or debate clause becauseit not only promotes independence but serves

order. Both Judge Cummings and Judge Kunzig feltthat the legislative privilege was a "personal" privi-lege of the legislator and that Markert, by volun-tarily testifying, had waived his protection. Id. at780-81.

39 Id. at 781. Judge Tone concurred on the basis ofthe reversal of the suppression order.

40 Id. at 782.41 Id.42 Id. at 783.

COMMENTS

"an additional more fundamental purposegrounded in the separation of powers in thefederal government."43 Seeing no separation ofpowers problem in the prosecution of a statelegislator by the federal executive ,44 and notingthat the Federal Constitution itself "does notcreate an immunity for state legislators"4 5

Judge Tone maintained there was no reasonfor the federal judiciary to create such an im-munity.

Nothing in our history or in the authorities re-lied upon by the court in this case suggests thatthere is a threat of federal executive interfer-ence with the independence of state legislaturesthat would warrant extending the judicially de-veloped doctrine of official immunity beyond itstraditional boundaries. Accordingly, I wouldhold that the state legislator's official immunitydoes not extend to liability under federal crimi-nal statutes, and that he therefore has no com-mensurate official privilege against disclosure. 46

The Full Court Decision

The Government petitioned the court for arehearing en banc. A majority47 of the full courtagreed with Judge Tone's position and voted toreverse the panel decision that the legislatorswere entitled to the protection of a federal com-mon law evidentiary speech or debate privi-

lege. 48 The court made special note, however,that

the absence of a privilege has no relationship tothe proof necessary to establish a crime involv-

43Id.

44 The relationship between the states and the fed-eral government is not usually characterized as aseparation of powers question. See Pierson v. Ray, 386U.S. 547, 564-65 (1967): "The doctrine of separationof powers is, of course, applicable only to the rela-tions of coordinate branches of the same govern-ment, not to the relations between the branches of theFederal Government and those of the States." Cf.Baker v. Carr, 369 U.S. 186, 210 (1962), "[lit is therelationship between the judiciary and the coordinatebranches of the Federal Government, and not thefederal judiciary's relationship to the States, whichgives rise to the 'political question.'

45 528 F.2d at 783.46 Id. (footnotes omitted).47 Judges Pell, Sprecher, Tone, Bauer and Wood

made up the majority.48 537 F.2d 959 (7th Cir. 1976). The opinion of the

full court does not re-analyze the issue, but merelyadopts Judge Tone's concurring opinion from thepanel decision.

ing official corruption; and that although a legis-

lator's voting record and other legislative con-duct is not privileged from inquiry it would not,

standing alone, support an inference of wrong-doing or improper motive. Proof aliunde will berequired .49

Three judges disagreed with the majority on

the issue of privilege.58 Judge Cummings and

Judge Swygert felt the legislators were pro-

tected by a federal common law privilege.5'

Chief Judge Fairchild, on the other hand, felt

that because of the "constitutional relationship

between the states and the United States," the

court should honor and give effect to the

speech or debate clause of the Illinois Constitu-

tion .2

THE COMPETING THEORIES: SPEECH OR

DEBATE PRIVILEGE VERSUS OFFICIAL

IMMUNITY

As the court of appeals panel decision makes

clear, the decision to fashion a common law

speech or debate privilege rather than apply

the Illinois state constitutional privilege is dic-

tated by the federal rules of evidence. In terms

of practical effect on the legislators in Craig,

however, there is little difference in result. Al-

though there has been no definitive interpreta-

tion of the Illinois provision, it is worded almost

identically to the federal constitutional provi-

sion and there is no reason to suppose that the

Illinois courts would not closely follow the Su-

preme Court's interpretation of the federal

clause. Similarly, those same Supreme Court

decisions which interpret the federal clause ex-

amine the origin of the concept of legislative

privilege, and naturally provide an authorita-

tive source for determining the parameters of a

common law speech or debate privilege.

49 537 F.2d at 958-59 (emphasis in original).

" There was less disagreement on the question of

whether the suppression order should be reversed.Seven of the eight judges voted for reversal on thatissue.

51judge Cummings adhered to his views in thepanel majority opinion that the legislators were pro-tected by a federal common law speech or debateprivilege; but that Markert had waived his privilegeby voluntarily testifying. Judge Swygert agreed withJudge Cummings on the existence of the privilege,but he felt the privilege had not been waived. 537F.2d at 958-59.

5 1 Id. at 959. Chief judge Fairchild voted to reversethe suppression order, however, because he felt Mar-kert had waived the privilege.

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A SPEECH OR DEBATE PRIVILEGE

On the other hand, of crucial importance tothe legislators in Craig is the question ofwhether the "principles of common law" andrelevant Supreme Court decisions dictate theapplication of a privilege based on the speechor debate clauses of the federal and state consti-tutions, or one based on the similar but nar-rower principles underlying the doctrine of of-ficial immunity. Developing an answer to thisquestion involves an understanding of the Eng-lish common law origin of the privilege, itsAmericanization as it was incorporated into theconstitutional structure of the United States,and its relationship to the common law doctrineof official immunity.

Development of the Speech or Debate Privilege

The concept of legislative privilege in speechor debate was brought to the United Statesfrom England where it had developed as a con-sequence of the long struggle for political su-premacy between the Crown and Parliament.5 3

The English battle was two pronged. Parlia-ment had to fight not only for freedom ofspeech and deliberation, but also for the rightto initiate legislation.5 4 Particularly during thereign of the Tudors and the Stuarts, the Crownresisted the growth of Parliamentary power.Throughout this period members of Parlia-ment were subject to arrest, imprisonment orbanishment from Parliament both for speecheswhich displeased the Crown and for "meddlingwith matters of state" which were considered tobe the sole perogative of the Crown.55

Parliament responded to actions takenagainst its members by passing legislation de-claring that all prosecutions based on parlia-mentary proceedings were void," and by claim-

' United States v. Johnson, 383 U.S. 169, 178(1966).

54 Veeder, Absolute Immunity in Defamation: Legisla-tive and Executive Proceedings, 10 COLUM. L. REV. 131,132 (1910) [hereinafter cited as Veeder].

" Id. at 132-33. See also Celia, The Doctrine of Legis-lative Privilege of Freedom of Speech and Debate: Its Past,Present and Future as a Bar to Criminal Prosecutions in theCourts, 2 SUFFOLK L. REV. 1, (1968) [hereinafter citedas Cella].

" See e.g., Privilege of Parliament Act 1512, 4 Hen.VIII, c.8. This Act arose out of the prosecution ofRichard Strode, a member of the House of Com-mons, for introducing legislation to regulate tin min-ing. Although the Act clearly stated that prosecutionsof all present and future members of Parliament forlegislative acts were void, the Kings Bench later held

ing, in petitions to the Crown at the beginningof each Parliament, that freedom of speech wasits "ancient and undoubted right and inherit-ance."5 7 The Ehglish monarchs yielded to thisassertion of privilege in varying degrees. Eliza-beth I, for example, apparently acknowledged"freedom of speech," but tried to qualify theprivilege by defining it as the privilege to say"aye or no."58 James I was also willing to recog-nize the existence of a privilege, but not as aparliamentary right. He maintained that anyparliamentary privilege was a matter of royal"toleration" and that the King was thereforefree, should the need arise, to "punish anyman's misdemeanors in Parliament, as wellduring their sitting as after."59 However, by themiddle of the seventeenth century, Parliamentappears to have won the battle for a completeand meaningful privilege. The privilege wasembodied formally into the English Bill ofRights in 1689,60 and its existence was neverseriously questioned thereafter. 6' Subse-quently, as the battle for political supremacybetween the Crown and Parliament was re-solved, the privilege came to be asserted moreoften against fellow citizens than against theKing.62 In its origin, however, the privilege wasclearly asserted to assure the independence ofParliament from the power of the Crown.

The English Parliament's concern for inde-pendence was, of course, well known to those

that the Act was "private" and referred only toStrode. In 1667, Parliament formally declared the Actto be one of "general operation" declaring "ancientand necessary rights and privileges of Parliament."Veeder, supra note 54, at 132 n.5, 133-34.

-1 Veeder, supra note 54, at 132-33. Assertion ofthe privilege in the petition to the Crown was appar-ently begun in 1541. Id. at 132.

58 Id. at 133. Veeder quotes the Queen as saying:Privilege of speech is granted, but you mustknow what privilege you have; not to speakeveryone what he listeth or what cometh in hisbrain to utter that; but your privilege is, aye orno.59 Id.o Id. at 134. See also Comments on Recent Cases, 50

IOWA L. REV. 893, 895 (1965). For a detailed discus-sion of the development of the English privilege, seeCelia, supra note 55, at 1-13, and M. CLARKE, PARLI-MENTARY PRIVILEGE IN THE AMERICAN COLONIES, 1-13 (1943) [hereinafter cited as CLARKE].

61 Although the existence of the privilege was set-tled, its scope was still the subject of considerabledebate. Cella, supra note 55, at 12.

2 Comments on Recent Cases, 50 IOWA L. REV. 893,895 (1965).

19771

who founded the English colonies in America.Early colonial legislators expressed a similarconcern for the independence of the colonialassemblies,63 and the tensions that developedbetween the assemblies and the royal governorsand English Parliament served to keep thatconcern alive throughout the colonial period.6From a legal standpoint none of the colonialassemblies possessed formally recognized par-liamentary rights. 6 But, starting quite early inthe colonial period, they began to ask the royalgovernors to recognize that they held privilegessimilar to those enjoyed by Parliament,6 6 andgradually the custom of recognizing and grant-ing legislative privilege to the colonial assem-

blies became thoroughly established. 67 Indeed,there is every indication that the colonists feltsuch privileges to be a matter of "right" which

could not be denied.68

Immediately after the revolution, the Articlesof Confederation 69 and the constitutions of sev-eral states70 formally recognized the existence

6' Celia, supra note 55, at 13; CLARKE, supra note60, at 13.

64 See CLARKE, supra note 60, at 90-131, for anexcellent summary of some of the battles between theroyal governors and the assemblies. As both Clarkeand Cella make clear, the question of legislative inde-pendence was more complex in the colonies, sincecolonial assemblies were confronted not only with thepower of the royal governors, but also with the powerof the English Parliament. Celia, supra note 56, at 14;CLARKE, supra note 61, at 12. Many colonists appar-ently felt they owed no loyalty or duty to Parliament,their only obligation being to the King. W. BENNET,AMERICAN THEORIES OF FEDERALISM, at 15-37 (1964)[hereinafter cited as BENNET]. Parliament, of course,had other ideas.

65 CLARKE, supra note 60, at 12.66 Id. at 61-92.67 Id. at 70.6 1 Id. at 79.

69 ART. OF CONFED. V.

Freedom of Speech and Debate in Congress shallnot be impeached or questioned in any court orplace out of Congress.70 MARYLAND DECLARATION OF RIGHTS, art. VIII,

(1776):Freedom of speech and debates or proceedings,in the legislature, ought not to be impeached inany other court or judicature.

MASS. CONST. art. XXI (1780):The freedom of deliberation speech and debatein either house of the legislature, is so essential tothe rights of the people that it cannot be thefoundation of any accusation or prosecution, ac-tion, or complaint in any other court or placewhatsoever.

N.H. CONST. art. XXX (1784):

and importance of legislative privilege in therepresentative systems they sought to establish.A few years later, the drafters of the FederalConstitution did not even question the impor-tance of legislative privilege. They adopted thefederal speech or debate clause without dissentor significant discussion," merely altering thewording of the English privilege to fit theAmerican tripartite governmental structure. 72

As Justice Frankfurter was later to note, theclause was simply a "reflection of political prin-ciples already established in the states. 73 Those"principles already established" were not, how-ever, adopted wholesale from England. Al-though the colonial assemblies had, in somesense, begun their existence as "small parlia-ments," 74 the nature of the political structure inthe colonial system, the physical isolation of thecolonies from England, and the intense debateover the nature of government that ragedthroughout the colonial period75 all combinedto create uniquely American institutions in thecolonies.

Scope of the Privilege

The first judicial consideration of the scopeof legislative privilege in America appears inCoffin v. Coffin,7 6 an 1808 case in which theMassachusetts Supreme Court was asked to in-terpret the meaning of the state constitutionalspeech or debate clause. 77 Interestingly, thecase presented no issue of executive interfer-ence with the legislative branch, the evil the

The freedom of deliberation, speech, and debatein either house of the legislature, is so essential tothe rights of the people, that it cannot be thefoundation of any action, complaint, or prosecu-tion, in any other court or place whatsoever.71 Celia, supra note 55, at 14. Two amendments to

the clause were offered and rejected. One would havemade each house the sole judge of the privilege, theother would have defined the extent of the privilege.Id. at 14-15.

72 The English privilege is phrased as follows:[Tihat the freedom of Speech and Debate orProceedings in Parliament ought not to be im-peached or questioned in any court or place outof Parliament.

1 Win. + M., sess. 2, c.2.7' Tenney v. Brandhove, 341 U.S. 367, 373 (1951).7 CLARKE, supra note 60, at 12.7 See BENNET, supra note 64 passim; and CLARKE,

supra note 60, passim.76 4 Mass. 1 (1808). This case is discussed in great

detail in Celia, supra note 55, at 19-30.71 MASS. CONST. art. XXI (1780). See note 70supra

for text of provision.

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privilege was originally designed to remedy.Rather, it involved a private citizen's suit forslander against a state legislator.78

William Coffin asked Benjamin Russell, amember of the Massachusetts House of Repre-sentatives, to introduce a resolution to increasethe number of notaries public in Nantucket.Russell, an acquaintance of Coffin's, agreed.After the resolution passed, and the House hadmoved on to the consideration of other busi-ness, Micajah Coffin,79 another representative,asked the sponsor of the resolution to identifythe "respectable gentlemen from Nantucket"from whom he had received the information onwhich he had based the proposal. William Cof-fin was pointed out and Micajah Coffin washeard to exclaim, "What! That Convict?" andother words to the effect that an acquittal frombank robbery charges against William did not"make him any less guilty."8 0 William then suedMicajah for slander.

Micajah raised the Massachusetts constitu-tional provision as a defense and argued, citingEnglish precedents, that the effect of the clausewas to make the Massachusetts House the solejudge of the privileges of its members. WilliamCoffin, on the other hand, argued that theEnglish experience was simply inapposite. TheHouse could not be the sole judge of its ownprivileges under the Massachusetts constitu-tional form of government in which "the judici-ary power is an original coordinate and inde-pendent branch of the government,"8' and thecourt is established "as the supreme tribunal todetermine the true meaning of each part of theconstitution, as well as of the laws."8' 2

ChiefJustice Parsons, who wrote the opinionof the Court, agreed with William Coffin.While he was willing to concede that for "cer-tain intents and purposes"s3 the House might

78 At least one commentator has suggested thatlegislative privilege incorporated in the constitutionsof the states was designed primarily as protectionagainst fellow citizens of the legislator. Field, TheConstitutional Privileges of Legislators, 9 MINN. L. REV.442, 443 (1924-25). However, in view of the fact thatthe governmental structure of the states so closelyparallels that of the federal government, it is proba-ble that the constitutional clauses were intended toserve a separation of powers purpose as well.

7' Micahah and William Coffin were not related.s4 4 Mass. at 4.

Id. at 13.82 !d. at 9.3Id. at 31.

be the exclusive judge of its privileges, he feltthe court at least had the right and obligation todetermine the "intent and design"8' 4 of the con-stitutional clause and whether it comprehendedthe particular conduct of the legislator. He thenproceded to interpret the clause expansively, inwords that are still quoted today.85

[Legislative privilege is secured] not with theintention of protecting the members againstprosecutions for their own benefit, but to sup-port the rights of the people, by enabling theirrepresentatives to execute the functions of theiroffice without fear of prosecutions, civil or crim-inal. I therefore think that the article ought notto be construed strictly, but liberally, that thefull design of it may be answered. I will notconfine it to delivering an opinion, uttering aspeech, or haranguing in debate; but will extendit to the giving of a vote, to the making of awritten report, and to every other act resultingfrom the nature and in the execution, of theoffice; and I would define the article as securingto every member exemption from prosecution,for every thing said or done by him, as a repre-sentative, in the exercise of the functions of thatoffice, without inquiring whether the exercisewas regular according to the rules of the house,or irregular and against their rules. I do notconfine the member to his place in the house;and I am satisfied that there are cases in whichhe is entitled to this privilege, when not withinthe walls of the representatives' chamber.8 6

However, in applying this interpretation tothe facts before him, Judge Parsons took a sur-prisingly restrictive view of his own words andfound that Micajah Coffin was not exercisingthe functions of his representative office at thetime he called William a convict. Therefore, theprivilege could not protect him against a suitfor defamation.

7

Despite its restrictive holding, and despitethe fact that it was a state case and the clausebeing interpreted was broader than most otherstate clauses and the federal clause, 8 Coffin has

8 1d. at 78.

See e.g., United States v. Brewster, 408 U.S. 501,514 (1972); Tenney v. Brandhove, 341 U.S. 367, 373-74 (1951).

86 4 Mass. at 27.17 Id. at 29-30, 36. For a criticism of the court's

application of its own interpretation, see Celia, supranote 55, at 28-30.

88 The Massachusetts clause, quoted in full in note70 supra, protects deliberation, speech and debate,and forbids prosecutions, actions and complaints inanyplace whatsoever outside the legislature.

had considerable influence in later judicial in-terpretations of the meaning of legislative privi-lege. The Supreme Court in Kilbourn v. Thomp-son, s9 for example, relied heavily on the lan-guage, though not the holding, of Coffin.

Kilbourn was the first judicial interpretationof the federal privilege. A committee of theUnited States House of Representatives hadsummoned Kilbourn to give testimony. WhenKilbourn refused, the committee voted to ar-rest and imprison him for contempt. Kilbournbrought suit for false imprisonment againstboth the members of the committee who votedfor the resolution authorizing his arrest and thesergeant-at-arms who arrested him.

After citing with approval Justice Parson'sdictum in Coffin, 9 the Court took a similarapproach to the interpretation of the federalprivilege:

It would be a narrow view of the constitutionalprovision to limit it to words spoken in debate.The reason of the rule is as forcible in its appli-cation to written reports presented in that bodyby its committees, to resolutions offered, which,though in writing, must be reproduced inspeech, and to the act of voting, whether it isdone vocally or by passing between the tellers.In short, to things generally done in a session ofthe House by one of its members in relation tothe business before it.9'

On the basis of this interpretation, the Courtwent on to find that the members of the com-mittee were immune from suit. While theremight be "things done, in the one House or theother, of an extraordinary character, for whichmembers who take part in the act may be heldlegally responsible," 92 on the facts presented,even though the committee was acting beyondits authority when it issued the order againstthe recalcitrant Mr. Kilbourn,93 the act of vot-ing for a resolution was one of those "thingsgenerally done in a session of the House ... inrelation to the business before it."19 4 It was,therefore, protected by the federal legislativeprivilege.

89 103 U.S. 168 (1881).90/d. at 203-04.91 /d. at 204.9 1d. The Court has continued to leave open the

possibility of congressional liability for "extraordi-nary" conduct, although it has never been faced withsuch a case. See e.g., Powell v. McCormack, 395 U.S.486, 506 n.26 (1969).93 Id. at 200.

94 Id. at 204.

Because the Kilbourn Court explicitly ex-panded the protection of the federal clausebeyond pure speech or debate to encompassprotection for legislative acts, the case is fre-quently cited for the proposition that the clausemust be construed liberally "to effectuate itspurposes." 95 The holding of the Court was notas liberal as it might have been, however, forthe Court refused to absolve the sergeant-at-arms from liability for carrying out the commit-tee order. As the order issued by the committeewas "without authority,"9 6 the arrest of Kil-bourn was illegal. Since the sergeant-at-armswas only a legislative functionary, not a legisla-tor, he was unprotected by the legislative privi-lege and subject to suit for false imprisonment.This principle, that employees who implementthe policies of legislators may be subject to suiteven though the legislators themselves are not,at least arguably interferes with the independ-ence of the legislature. 97 But it also helps pro-tect the public against abuses of the legislature,without violating the literal wording of the con-stitutional privilege.98 Thus, although Kilbourn,like Coffin, stressed the importance of the inde-pendence of the legislature, it effectively com-promised on the full implications of this princi-ple.

With the exception of Tenney v. Brandhove,99Kilbourn was the only major Supreme Courtdecision on the subject of legislative privilegeuntil United States v. Johnson'°° was decided

" United States v. Johnson, 383 U.S. 169, 180(1966).

96 103 U.S. at 200.97 The legislature needs the help of non-legislative

employees in carrying out its functions. It may find itdifficult to hire them if they are subject to liabilitywhen in good faith they carry out a legislative orderthat turns out later to be without authority.

98 The Court has frequently permitted legislativefunctionries to be sued when suit against Congress-men was prohibited by the clause. See e.g., Doe v.McMillan, 412 U.S. 306 (1973) (suit not allowedagainst Congressmen for allegedly slanderous mate-rial in a committee report, republished and distrib-uted to the public, but suit against governmentprinter allowable); Powell v. McCormack, 395 U.S.486 (1969) (suit against Congressmen for vote to ex-clude representative Powell from Congress not al-lowed; suit allowed against House aides implement-ing the invalid resolution); Dombrowski v. Eastland,387 U.S. 82 (1967) (suit prohibited against Chairmanof Senate subcommittee, but allowed against subcom-mittee counsel).

99 341 U.S. 367 (1951). This case is discussed fully inthe text accompanying notes 167-97 infra.

100 383 U.S. 169 (1966). Along with Kilbourn, John-

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eighty-five years later. Johnson was a UnitedStates Congressman alleged to have taken abribe to use his influence to obtain the dismissalof indictments against certain officials of sav-ings and loan institutions. He was indicted forviolation of the federal conflict of interest stat-ute'0 ' and for conspiracy to defraud the UnitedStates. 102 An essential piece of evidence usedagainst him on the conspiracy count was aspeech favorable to savings and loan associa-tions which he had delivered in Congress. TheCourt of Appeals for the Fourth Circuit heldthat the use of such evidence was precluded bythe speech or debate clause. 03 It reversed hisconviction, dismissed the conspiracy chargeand remanded the case for a new trial on theconflict of interest issue. 1 4

Although the Supreme Court had never be-fore considered whether the speech or debateclause granted any sort of immunity in situa-tions in which criminal conduct was intertwinedwith legislative acts, 0 5 it had little difficulty inaffirming he court of appeals' decision thatJohnson's conviction on the conspiracy countcould not stand. Its approach to the questionwas essentially historical. It noted that the pri-mary impetus for the development of legislativeprivilege was not the fear of private civil suitssuch as that in Kilbourn, but fear of "intimida-tion" of the legislature by the "instigation ofcriminal charges against critical or disfavoredlegislators by the executive in a judicialforum."'10 That same fear, according to theCourt, formed the "predominate thrust of theSpeech or Debate Clause" under the "American

son is also cited for the proposition that the speech ordebate clause must be construed liberally. Doe v.McMillan, 412 U.S. 306, 311 (1973).

,01 18 U.S.C. § 281 (1964).102 18 U.S.C. § 371 (1970).'03 337 F.2d 180 (4th Cir. 1964), affd 383 U.S. 169

(1966).04 The court felt that evidence of the speech had

unfairly prejudiced the determination of Johnson'sguilt on the conflict of interest charges. Id. at 204.

105 In Burton v. United States, 202 U.S. 344 (1906),the Court found that the speech or debate clauseprovided no protection to a legislator charged withcriminal conduct outside the sphere of legislative ac-tivity. (The charge was bribery to influence the PostOffice Department to quash an indictment.) Cf. Wil-liamson v. United States, 207 U.S. 425 (1903) (Theconstitutional privilege from arrest, U.S. CoNsr. art.1 § 6, provides no protection to a legislator chargedwith criminal conduct although his imprisonmentwould prevent him carrying out his congressionalduties.)"'6 383 U.S. at 181, 182.

system of separation of powers"'1 7 in which theclause not only helps assure the independenceof the legislature, but also reinforces the sepa-ration of the three branches of the govern-ment. 0" In light of both its historical develop-ment and the concept of separation of powers,the Court concluded that the clause preventsnot only prosecutions based on the content of alegislator's speech, but also those prosecutionswhich inquire into the legislator's motivation orintention for the performance of any legislativeact.

The Government could not, therefore, main-tain a case against Johnson which in essencecharged him with improper motivation in hislegislative conduct. The Government had in-quired extensively into the wording of hisspeech, his personal knowledge of the factsincluded in it and the way in which the speechwas prepared. In short,

the conspiracy theory depended on a showingthat the speech was made solely or primarily toserve private interests, and thatJohnson in mak-ing it was not acting in good faith, that is, that hedid not prepare or deliver the speech in the wayan ordinary Congressman prepares or deliversan ordinary speech. 1' 9

His prosecution on this basis violated both theletter and the spirit of the speech or debateclause. The Court was careful to note, however,that its holding was "limited to prosecutionsinvolving circumstances such as those pre-sented in this case ' 1ii in which the Govern-ment's inquiry into the Congressman's motivewas not an "incidental" part of its case, butcentral to the proof of criminal conduct. Thedecision did not affect "prosecutions whichthough ... founded on a criminal statute ofgeneral application, do not draw in questionthe legislative acts of the defendant member ofCongress or his motives for performingthem.""' Thus, although Johnson was entitledto an evidentiary privilege insofar as the Gov-ernment attempted to prove his participation ina conspiracy to defraud the government by ref-erence to his legislative conduct, the Govern-ment was not precluded from showing criminalconduct on the basis of other evidence. Sincethe making of the speech was only part of the

1I7d. at 182.108 Id. at 178."o9 Id. at 177."oId. at 185.11'Id.

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conspiracy charge, the Court remanded thecase with instructions to allow the Governmentthe opportunity to prove its case without theuse of evidence "offensive to the Speech orDebate Clause.'

1 2

The Court in both Kilbourn and Johnson fo-cused on the need to protect the independenceof the legislature and gave the speech or debateclause a relatively expansive interpretation. Inlater cases, however, the Court has arguably cutback on the scope of the federal legislative priv-ilege, focusing less on the need for legislativeindependence and more on the separation ofpowers concept which is the cornerstone of theAmerican system of government. In UnitedStates v. Brewster," 3 for example, the Courtstated:

[A]lthough the Speech or Debate Clause's his-toric roots are in English history, it must beinterpreted in light of the American experience,and in the context of the American constitu-tional scheme of government rather than the-English parliamentary system. We should bearin mind that the English system differs fromours in that their Parliament is the supremeauthority, not a coordinate branch. Our speechor debate privilege was designed to preservelegislative independence, not supremacy. Ourtask, therefore, is to apply the Clause in such away as to insure the independence of the legisla-ture without altering the historic balance of thethree co-equal branches of Government." 4

Brewster involved the prosecution of a Con-gressman for accepting a bribe "in return forbeing influenced in his performance of officialacts in respect to his action, vote, and decisionon postage rate legislation which might at anytime be pending before him in his official ca-pacity.""' His indictment had been dismissedby the district court which held that the speechor debate clause, "particularly in view of theinterpretation given that Clause by the Su-preme Court in Johnson," protected the Con-gressman against "any prosecution for allegedbribery to perform a legislative act."'" 6

I Id. On remand the Government did not pursuethe conspiracy charge. Johnson was convicted on theconflict of interest count and his conviction was af-firmed by the circuit court. 419 F.2d 56 (4th Cir.1969), cert. denied, 397 U.S. 1010 (1970).113 408 U.S. 501 (1972)."' Id. at 508. (footnotes omitted)."

3 Id. at 502."

6 Id. at 504.

The Supreme Court disagreed. It first con-sidered the general question of whether Con-gressmen could be prosecuted for taking bribesin exchange for promises relating to legislativeacts. It concluded that neither the speech ordebate clause itself nor prior judicial interpre-tations of the clause indicated that such a prose-cution was impermissible. Johnson made clearthat Congressmen may be prosecuted forcrimes "provided that the Government's casedoes not rely on legislative acts or the motiva-tion for legislative acts.''17 Other cases taughtthat legislative acts include only "those thingsgenerally said or done in the House or Senatein the performance of official duties and ...the motivation for those acts.""' The Courtdistinguished sharply between these purely leg-islative activities and the "political" activitieswhich Congressmen perform "in part becausethey have come to be expected by constituents,and because they are a means of developingcontinuing support for future elections .'' 1

9 Al-though entirely "legitimate" and "appropriate,"such activities, according to the Court, hadnever been protected by the speech or debateclause.

In no case has this Court ever treated the Clauseas protecting all conduct relating to the legis-lative process. In every case thus far beforethis Court, the Speech or Debate Clause hasbeen limited to an act which was clearly a part ofthe legislative process-the due functioning ofthe process.1

2 0

While a broader interpretation might be drawnout of the "flavor of the rhetoric and the sweepof the language" of prior decisions, neither the"precise Nwords" nor the "sense of those cases"mandated such an interpretation. 2 ' The grant

of privilege under the clause was extremelybroad even when the clause was interpretednarrowly, and the Court refused to expand it.

We would not think it sound or wise, simply outof an abundance of caution to doubly insurelegislative independence, to extend the privilegebeyond its intended scope, its literal language,

"7 Id. at 512.118Id.119 Id.'

20 Id. at 515-516. "Due functioning" of the legisla-tive process has become the shorthand phrase forlimiting the scope of legislative privilege to essentiallyvoting, committee reports, hearings and speeches inCongress.

121 Id. at 516.

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and its history, to include all things in any wayrelated to the legislative process.122

The fact that Congress itself had the power topunish its members for misconduct did not per-suade the Court that the judiciary should leavethat task solely within congressional hands. TheCourt felt Congress to be "ill-equipped" to han-dle the essentially judicial tasks of investigation,trial and punishment of wrongdoers. 12 Fur-thermore, if Congress actively attempted to po-lice and punish its members for conduct notdirectly related to the legislative process, theCourt felt that individual legislators would be"at the mercy of an almost unbridled discretionof the charging body that functions at once asaccuser, prosecutor, judge and jury fromwhose decision there is no established right ofreview.' 24 Independence of the legislaturewould be more likely to be compromised insuch a situation than by a conventional criminaltrial which provides rigorous procedural safe-guards.

Finally, the Court was not convinced that theindependence of the legislature was actuallythreatened by the potential for executive har-assment through the initiation of prosecutionsfor bribery. Historically, "the check and bal-ance mechanism, buttressed by unfettered de-bate in an open society with a free press, has notencouraged abuses of power or tolerated themlong when they arose."'25 Public reaction toattempts to intimidate the legislature wouldlimit the possibility of executive abuse of crimi-nal statutes designed to assure honest govern-ment. But, even if some possibility of abuseexisted, the Court felt it had to be balancedagainst the potential for harm to the system ifCongressmen could not be prosecuted for brib-ery.

The purpose of the Speech or Debate Clause isto protect the individual legislator, not simplyfor his own sake, but to preserve the independ-ence and thereby the integrity of the legislativeprocess. But financial abuses by way of bribes,perhaps even more than Executive power,would gravely undermine legislative integrityand defeat the right of the public to honestrepresentation .126

122 Id.2 Id. at 518.'24 Id. at 519.2 Id. at 523.,

126 Id. at 524.

Having thus determined that prosecution forbribery was not forbidden simply because thecharge "related" to the official conduct of alegislator, the Court went on to consider thespecifics of the indictment brought againstBrewster. It found that no inquiry into legisla-tive acts was necessary in order for the Govern-ment to make out a prima facie case against theCongressman. The illegal act was the taking ofa bribe, an act which could not possibly becharacterized as legislative in nature. Further-more, there was no need for the Government toshow that Brewster had actually kept his prom-ise to vote or to perform any other legislativeact.

To sustain a conviction it is necessary to showthat appellee solicited, received, or agreed toreceive money with knowledge that the donorwas paying him compensation for an official act.Inquiry into the legislative performance itself isnot necessary; evidence of the Member's knowl-edge of the alleged briber's illicit reasons forpaying the money is sufficient to carry the caseto the jury

27

The Court dismissed with exceptional brevitythe argument that any inquiry into an allegedbribe of a legislator for performing a legislativeact was in essence an inquiry into the Congress-man's motive and thus prohibited underJohn-son.

That argument misconstrues the concept of mo-tivation for legislative acts. The Speech or De-bate Clause does not prohibit inquiry into illegalconduct simply because it has some nexus tolegislative functions. In Johnson, the Court heldthat, on remand, Johnson could be retried onthe conspiracy-to-defraud count, so long as evi-dence concerning his speech on the House floorwas not admitted. The Court's opinion plainlyimplies that had the Government chosen to retryJohnson on that count, he could not have ob-tained immunity from prosecution by assertingthat the matter being inquired into was relatedto the motivation for his House speech. 28

There were vigorous dissents in Brewster12

and the case has been extensively criticized by

"27 Id. at 527.

12 8

1d. at 528. The Court was answering JusticeBrennan, who dissented.

129 Id. at 529 (Brennan, J., dissenting); Id. at 551(White, J., dissenting). Justice Douglas joined bothdissenting opinions.

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commentators.'3' But the Court has not re-

treated. Although it continues to maintain thatthe clause will be read "broadly to effectuate itspurposes," it has also continued in the casessubsequent to Brewster carefully to circumscribethe area of activity protected by the privilege.Gravel v. United States'3' is particularly on point.

In the Gravel case, Senator Gravel had readmost of the "Pentagon Papers," which wereclassified government documents, into theCongressional Record during a special mid-night sub-committee meeting. Rodberg, theSenator's aide, was subpoened to testify beforethe grand jury concerning arrangements beingmade by the Senator to have the papers re-published privately. He was also to be ques-tioned regarding the Senator's source for theclassified documents. Rodberg challenged thesubpoena and Senator Gravel intervened,claiming that requiring Rodberg to testify onthese matters would violate his speech or debateprivilege. The Court agreed with the Senatorinsofar as he claimed the speech or debateclause to protect himself against civil or criminalliability for things said or done at the sub-com-mittee hearing. The Court further agreed withGravel that his aide was privileged with regardto legislative acts which would have been privi-leged if the Senator had personally performedthem. It noted that it was

literally impossible, in view of the complexitiesof the modern legislative process, with Congressalmost constantly in session and matters of legis-lative concerns constantly proliferating, forMembers of Congress to perform their legisla-tive tasks without the help of aides and assist-ants; that the day-to-day work of such aides is socritical to the Members' performance that theymust be treated as the latter's alter egos; and thatif they are not so recognized, the central role ofthe Speech or Debate Clause- to prevent intimi-dation of legislators by the Executive and ac-countability before a possibly hostile judiciary-will inevitably be diminished and frustrated. 3 2

Thus it refused to take a "literalistic"'133 ap-proach to the language of the speech or debateclause, which only mentions Senators and Rep-

13 See, e.g., Ervin, The Gravel and Brewster Cases: An

Assault on Congressional Independence, 59 VA. L. REv.175 (1973); Comment, Brewster, Gravel and LegislativeImmunity, 73 COLUM. L. REV. 125 (1973).

.3- 408 U.S. 606 (1972).132 Id. at 616-17 (citation omitted).133 d. at 617.

resentatives, and held the Senator's aide pro-tected as well. But, in defining the scope of theSenator's privilege, and the commensurateprivilege of his aide, the Court was considerablyless willing to expand the literal words of theclause.

Legislative acts are not all-encompassing. Theheart of the Clause is speech or debate in eitherHouse. Insofar as the Clause is construed toreach other matters, they must be an integralpart of the deliberative and communicativeprocesses by which Members participate in com-mittee and House proceedings with respect tothe consideration and passage or rejection ofproposed legislation or with respect to othermatters which the Constitution places within thejurisdiction of either House.I 4

It would not extend the privilege beyond"pure speech or debate" unless it was necessaryto "prevent indirect impairment of such delib-erations.."135 The Court did not think that pri-vate publication was essential to the business ofthe Senate. It was not a legislative act, andquestioning on the matter would not violate theSenate's independence nor expose it to thethreat of intimidation by the executive branch.Similarly, the Court felt the grand jury couldquestion the aide on the Senator's source forthe classified documents "as long as no legisla-tive act was implicated by the questions.'

'1 6

"Rodberg's immunity, testimonial or otherwise,extends only to legislative acts as to which theSenator himself would be immune.' 1 37 It there-fore remanded the case with instructions tofashion a protective order forbidding the ques-tioning of Rodberg only to that extent.13

134 Id. at 625.135 Id.136 Id. at 628.137 Id.'38 Another recent case which continues the limit-

ing approach to the definition of legislative act is Doev. McMillan, 412 U.S. 306 (1973). In Doe, suit wasbrought against members of Congress and the PublicPrinter and Superintendent of Documents for thepublication of a libel in a congressional committeereport which was distributed publicly. Members ofthe committee were immune from suit for the mate-rial included in their original report, since the mak-ing of the report was a legislative act. However, gen-eral publication and distribution of their report wasnot protected. Although the Court agreed that publicdissemination of the information in congressional re-ports served an important function, it did not thinksuch dissemination was an "integral part of the delib-erative and communicative processes by which Mem-

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The clear import of these federal speech ordebate clause cases, taken together, is that thelegislative privilege embodied in the clause isnot without limit. While mindful of the Englishand colonial common law origin of the clause,the Court has always been careful to interpret itin light of its American constitutional context.Thus, although it has recognized that the privi-lege is one method by which the framers of theConstitution attempted to ensure effective sep-aration of powers, it has also recognized thatthe clause cannot be read so as to allow one ofthe three co-equal branches to achieve suprem-acy over the other two. In making the necessarycompromises between these competing consid-erations, the Court has at times perhaps drawnarbitrary or even inconsistent lines betweenprotected and unprotected activity. 139 But im-plicit in all its decisions is the recognition of thefact that in spite of the complexities of themodern legislative process and in spite of theneed for legislative independence, legislativeprivilege is necessarily limited by the generalconstitutional scheme of government.

Comparison of the Constitutional Privilege withthe Doctrine of Official Immunity

Legislators are not the only officials who en-joy a privilege from suit for those things "saidor done ... in the exercise of the functions of[their] office."140 Other governmental officialshave a similar, though narrower, privilege un-der the common law doctrine of official immu-nity. The principal focus of the doctrine ofofficial immunity is the need to protect theindependence of government officials. The Su-

hers participate in committee and House proceed-ings." Id. at 314.

[W]e cannot accept the proposition that in orderto perform its legislative function Congress notonly must at times consider and use actionablematerial but also must be free to disseminate it tothe public at large, no matter how injurious toprivate reputation that material might be.

Id. at 316. The Congressmen were immune from suitfor the order of publication under the rationale ofKilbourn, but the printer who had carried out theunprotected order was held answerable for the libel.

139 Numerous commentators have criticized theCourt on this basis. See, e.g., Ervin, The Gravel andBrewster Cases: An Assault on Congressional Independ-ence, 59 VA. L. REV. 175 (1973); Reinstein & Silver-glate, Legislative Privilege and the Separation of Powers,86 HARV. L. REV. 1113 (1973); Comment, Brewster,Gravel and Legislative Immunity, 73 CoLuM. L. REV. 125(1973).

140 Coffin, 4 Mass. at 27.

preme Court articulated the importance of theprinciple with regard to judges in Bradley v.Fisher in 1871:14a

[lit is a general principle of the highest impor-tance to the proper administration ofjustice thata judicial officer, in exercising the authorityvested in him, shall be free to act upon his ownconvictions, without apprehension of personalconsequences to himself. Liability to answer toeveryone who might feel himself aggrieved bythe action of the judge, would be inconsistentwith the possession of this freedom, and woulddestroy that independence without which noju-diciary can be either respectable or useful. 4'

Twenty-four years later, the Court made clearthat the same reasoning applies to high rankingexecutive officials:

We are of the opinion that the same generalconsiderations of public policy and conveniencewhich demand for judges of courts of superiorjurisdiction immunity from civil suits for dam-ages arising from acts done by them in thecourse of the performance of theirjudicial func-tion, apply to a large extent to official communi-cations made by heads of Executive Depart-ments when engaged in the discharge of dutiesimposed upon them by law. The interests of thepeople require that due protection be accordedto them in respect of their official acts.'4 3

More recently, in Barr v. Matteo, 44 the Courtreiterated:

[O]fficials of government should be free to exer-cise their duties unembarrassed by the fear ofdamage suits in respect of acts done in thecourse of those duties-suits which would con-sume time and energies which would otherwisebe devoted to governmental service and thethreat of which might appreciably inhibit thefearless, vigorous, and effective administrationof policies of government.'

45

The Court then expressly extended the conceptof official immunity to protect lesser officials,noting that

[t~he privilege is not a badge or emolument ofexalted office, but an expression of a policy

4' 80 U.S. 335 (1871). The common law origin ofthis privilege for judges extends back to the time ofEdward III. Scheuer v. Rhodes, 416 U.S. 232, 239 n.4(1974).

"12 80 U.S. at 347.143 Spalding v. Vilas, 161 U.S. 483, 498 (1896).144 360 U.S. 564 (1959).'45Id. at 571.

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COMMENTS

designed to aid in the effective functioning ofgovernment. The complexities and magnitudeof governmental activity have become so greatthat there must of necessity be a delegation andredelegation of authority as to many functions,and we cannot say that these functions becomeless important simply because they are exercisedby officers of lower rank in the executive hierar-chy.

14 6

Although strikingly similar to the speech ordebate privilege in this emphasis on the need

for government officials to be independent, of-ficial immunity is narrower than speech or de-bate protection in two important ways: someofficials enjoy only a qualified immunity, andregardless of whether the immunity is absoluteor qualified, it protects the official only againstcivil actions. The immunity is granted in orderto ensure that these officials can and will carry

out their duties. It is limited in recognition ofthe fact that an absolute immunity for all offi-

cials in all situations is both unnecessary toachieve the purposes of immunity and intolera-ble in light of the great harm that can be doneto individuals by officials who abuse their

power. As a check against this abuse the privi-lege of some officials is "conditioned on the

good faith of the actor and the purpose of hisconduct."' 47 In general, only those officials with

146 Id. at 572-73. States have long recognized offi-

cial immunity for the actions of state and municipalgovernmental officials. See, e.g., Mills v. Denny, 245Iowa 584, 63 N.W.2d 222 (1954) (qualified immunityfor mayor and city council members); Tanner v.Gault, 20 Ohio App. 243, 153 N.E. 124 (1925) (abso-lute privilege for county commissioners alleged tohave slandered plaintiff); Bolton v. Walker, 197Mich. 699, 164 N.W. 420 (1917) (absolute immunity tocommission member testifying before tax commis-sion); Ivie v. Minton, 75 Ore. 483, 147 P. 395 (1915)(qualified privilege for councilman testifying beforecouncil committee of which he was not a member);Weber v. Lane, 99 Mo. App. 69, 71 S.W. 1099 (1903)(qualified privilege of alderman to investigate com-plaint against citizen). State officials have also beenheld to retain their immunity when sued in federalcourt. See, e.g., Wood v. Strickland, 420 U.S. 308(1975) (qualified immunity for school board memberssued under 42 U.S.C. § 1983); Scheuer v. Rhodes, 416U.S. 232 (1974) (qualified immunity for governor andnational guardsmen under § 1983); Nelson v. Knox,256 F.2d 312 (6th Cir. 1958) (qualified privilege of citycouncil in passing ordinances); Cobb v. City of Mal-den, 202 F.2d 701 (Ist Cir. 1953) (qualified privilege ofcity council members for "acts done by them ... inperformance of their official duty as they understoodit." Id. at 707 (Magruder, C. J., concurring).

147 HARPER & JAMES, THE LAW oF TORTS, 294 n.2(1956).

considerable breadth of authority and discre-tion are protected by absolute immunity.Judges and high ranking executive officials, for

example, as long as they act within the arguablebounds of their jurisdiction and authority, can-

not be questioned with regard to their motiva-

tion for a particular act. 4 s Members of schoolboards 149 policemen,5 0 and even governors,1 5 1

on the other hand, must be acting in good

faithM2 in order for their actions to be privi-

leged.

146 With respect to judges this principle was estab-lished in Bradley v. Fisher, 80 U.S. 335, 347 (1871):

Nor can this exemption of the judges from civilliability be affected by the motives with whichtheir judicial acts are performed. The purity oftheir motives cannot in this way be the subject ofjudicial inquiry.

Id. at 372.In Spalding v. Vilas, 161 U.S. 483, 498 (1896), the

Court spelled out the purpose of the absolute immu-nity in detail:

[I]t is clear . . . that [a high ranking executiveofficer] cannot be held liable to a civil suit fordamages on account of official communicationsmade by him pursuant to an act of Congress, andin respect of matters within his authority, byreason of any personal motive that might bealleged to have prompted his action; for personalmotives cannot be imputed to duly authorizedofficial conduct. In exercising the functions ofhis office, the head of an Executive Department,keeping within the limits of his authority, shouldnot be under an apprehension that the motivesthat control his official conduct may, at any time,become the subject of inquiry in a civil suit fordamages. It would seriously cripple the properand effective administration of public affairs asentrusted to the executive branch of the govern-ment, if he were subjected to any such restraint.'49 Wood v. Strickland, 420 U.S. 308 (1975).150 Pierson v. Ray, 386 U.S. 547 (1967).'5' Scheuer v. Rhodes, 416 U.S. 232 (1974).152 The good faith requirement contains both sub-

jective and objective elements. In Wood v. Strickland,420 U.S. 308, 321-22 (1975) the Court explained withrespect to school board members that

[tihe official ... must be acting sincerely andwith a belief that he is doing right, but an actviolating a student's constitutional rights can beno more justified by ignorance or disregard ofsettled, indisputable law .... than by the pres-ence of actual malice .... [A] school boardmember ... must be held to a standard of con-duct based not only on permissible intentions,but also on knowledge of the basic, unquestionedconstitutional rights of his charges.

Good faith is not always a prerequisite to privilege forlesser officials when the charge is defamation and theofficial has been addressing himself to matters withinhis authority. Compare Shellburne Inc. v. New CastleCounty, 293 F. Supp. 237, 244 (D. Del. 1968) ("Mem-bers of lower legislative bodies [zoning board] . ..

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A SPEECH OR DEBATE PRIVILEGE

With respect to criminal liability, official im-munity provides no testimonial privilege, andofficials may be held criminally liable for theirconduct. Most courts have felt that the lack ofan exemption from criminal liability will notinterfere with the policy behind the doctrine ofofficial immunity. As one court explained inanswer to a United States Attorney's claim ofimmunity to a mail fraud charge:

(C]ivil suits are easily adaptable for harassmentpurposes since any individual can institute a civilsuit against another .... Without immunity, ju-dicial officials who dissatisfy certain peoplemight easily be plagued by a rash of civil suitspredicated on their official conduct. ... In con-trast, this criminal prosecution was initiated bygovernment officials in solemn performance oftheir duties and only after the defendants wereindicted by a grand jury. Clearly, the potentialfor harassment . . . is not present in criminalprosecutions.I53

Even judges, who enjoy exceptionally broadimmunity, are not exempt from criminal liabil-ity. While it is still possible to find quotations tothe effect that judges cannot be made crimi-nally liable for their judicial acts,' 154 it may bedoubted that such a rule was ever uniformlyfollowed. For instance, in Braatelien v. UnitedStates,'55 ajudge was convicted of "conspiracy todefraud the United States by corruptly admin-istering or procuring the corrupt administra-tion of an Act of Congress."'5 6 Although thecourt noted that the crime charged was "distinctfrom his official acts"'57 and might have been"consummated without the performance of asingle judicial act on his part' 58 the central core

usually have a qualified immunity for defamation.")with Tanner v. Gault, 20 Ohio App. 243, 245-46, 153N.E. 124, 125 (1925) ("[T]here is a well-establishedgeneral rule ... that libelous or slanderous matterpublished in due course of legislative proceedings isabsolutely privileged, and will not support an action,although made maliciously and with knowledge offalsity, if pertinent or relevant to matters under in-quiry, and that this broad and comprehensive ruleincludes within its scope the proceedings of all legisla-tive bodies, state or municipal.")

'0 United States v. Anzelmo, 319 F. Supp. 1106,1118-19 (E.D. La. 1970) (citation omitted).

14 See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 239n.4 (1974) (quoting 6 W. HOLDSWORTH, A HISTORY OFENGLISH LAW 235 (1927); 30 AN!. JUR., JUDGES § 50

(1969).153 147 F.2d 888, (8th Cir. 1945).'5 Id. at 895.

15 7 Id.

158 Id.

of the Government's case against the judge wasthe manner in which he conducted his judicialduties. Similarly, in United States v. Manton, 159 acriminal conspiracy conviction was upheldagainst ajudge for his participation in a schemeunder which he was paid to exercise his judicialpower in favor of certain parties, without re-gard to the merits of their case. Evidence of hisparticipation through his meetings with coun-sel, his scheduling of cases, the manner inwhich he presided at trial, and the fact that herendered decisions in favor of defendants wasall held admissible with no discussion of immu-nity.

More recently, in O'Shea v. Littleton, 0 the Su-preme Court in strong dictum indicated thatjudges may be criminally liable for the exerciseof their judicial duties in such a way as to wil-.fully deprive individuals of their constitutionalrights. In O'Shea, suit was brought for injunc-tive relief against a state judge and magistratealleged to be depriving plaintiffs, citizens ofracially tense Cairo, Illinois, of their constitu-tional rights through discriminatory setting ofbond, sentences, and jury fees in the criminalcases that came before them. Although refus-ing to grant the injunction,' 61 the Court madespecial note of the fact that state officials, in-cluding judges, were subject to criminal penal-ties under federal law for willful discriminationthat deprives a citizen of his constitutionalrights.'62 In contrasting a judge's immunityfrom civil suit with his liability in criminal pros-ecutions, the Court observed: "the judiciallyfashioned doctrine of official immunity doesnot reach 'so far as to immunize criminal con-duct proscribed by an Act of Congress'. ' ' j ' Al-though dictum, the words cannot be dismissedas insignificant. The Court was taking specialnote of the fact, and issuing a clear warning toall state officials, that the doctrine of officialimmunity does not afford protection againstcriminal prosecutions.

The doctrine of official immunity is not, of

159 107 F.2d 834 (2nd Cir. 1938).160 414 U.S. 488 (1974).161 The Court refused to grant relief on grounds

that plaintiffs had failed to present an actual case orcontroversy since none of them was actuallythreatened by the alleged discriminatory conduct ofthe state officials.

162 18 U.S.C. § 241 (1970) makes it a criminal of-fense to conspire to deprive a citizen of his constitu-tional rights.16 414 U.S. at 503 (quotingGravel, 408 U.S. at 627).

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COMMENTS

course, limited only to judicial and executiveofficials. It has frequently been applied to offi-cials who act in a legislative capacity, such asmunicipal aldermen, county and regional com-missioners, and members of other legislative orquasi-legislative boards.164 But, because moststate legislators have the protection of state con-stitutional speech or debate privilege, the con-cept of official immunity is rarely needed toguard their independence. In fact, one mightassume that since immunity for legislators hasso long been a part of the constitutional frame-work of American government, the doctrine ofofficial immunity has been totally supplantedby the broader concept of speech or debateprotection. Arguably, however, the doctrine ofofficial immunity for legislators is still a viablealternative for determining the scope of a legis-lator's privilege in those situations in which aconstitutional privilege is unavailable.

Recognition of a Federal Legislative PrivilegeOutside the Federal Constitutional Context

As noted earlier,' 65 a federal common lawlegislative privilege could be formulated alonglines exactly parallel to the speech or debateprivilege of the federal constitution, or it couldbe patterned after the more limited privilege ofofficial immunity. 66 The argument that the lat-ter approach is more appropriate is predicatedin part on a number of Supreme Court casesdealing with state legislators and legislatures.Not only do these cases themselves suggest thatstate legislators retain only official immunitywhen no specific constitutional provision pro-tects them, but a comparison of the Court'sapproach and language in these cases with thatin the speech or debate clause cases also leads tothe same conclusion.

There is only one Supreme Court case, Ten-ney v. Brandhove, 167 which deals directly with thesubject of legislative privilege outside the con-text of a suit against federal congressmen. Thecase is confusing because the source of the leg-islative privilege which the Court found appli-cable is never specifically identified. Tenneywas chairman of a California state legislative

164 See citations in notes 146 & 152 supra." See text following note 52 supra.166 It is conceivable that a court could decide to

recognize no privilege whatsoever. The likelihood ofthis appears so remote that it is not considered in thiscomment.

167 341 U.S. 367 (1951).

committee. Brandhove, by means of a petition,attempted to convince the California legislaturenot to appropriate funds for the committee,charging that it had not only used him as a"tool" to smear a particular candidate for of-fice, but had also conspired with the oppositioncandidate's campaign committee for the samepurpose. The committee summoned 'Brand-hove to testify and explain both his chargesand certain conflicts with his previous testi-mony. Although Brandhove appeared beforethe committee, he refused to testify. He wasprosecuted for contempt, but the prosecutionwas later dropped. 68 He then brought suitagainst the committee under §1983 of the CivilRights Act, 69 alleging that the hearing to whichhe had been called to testify had not been heldfor any legislative purpose, but to "intimidate... silence . . . deter and prevent him from

effectively exercising his constitutional rights offree speech and to petition the Legislature forredress of grievances . 1.7. "' The Court ofAppeals for the Ninth Circuit held that thecomplaint stated a cause of action, but the Su-preme Court reversed. It treated the issueraised by the case as essentially one of statutoryconstruction: "Did Congress by the general lan-guage of its 1871 statute mean to overturn thetradition of legislative freedom achieved inEngland by Civil War and carefully preservedin the formation of State and National govern-ments here?"''

The Court answered its own question in thenegative. It reviewed in detail the developmentof the concept of legislative privilege in Eng-land and the United States, focusing principallyon the importance of the privilege in protectingthe independence of the legislature, and thewidespread adoption of the privilege at thestate level. Noting that legislative privilege wasa "tradition . . . well grounded in history andreason," the Court was convinced that Con-gress, itself a staunch advocate of legislativefreedom, did not mean to limit the right oflegislators to act in their traditional legislativesphere by subjecting them to civil suits underthe general language of §1983.172

168 The jury failed to return a verdict and the com-mittee did not pursue the prosecution. Id. at 371.

169 U.S.C. § 1983 (1970).'0 341 U.S. at 371.'7' Id. at 376."'2 Id. The Court has subsequently held that § 1983

does not abrogate the traditional immunity of other

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A SPEECH OR DEBATE PRIVILEGE

The Court then considered whether the Ten-ney committee had been acting within a sphereof traditional legislative activity. It first notedthat the fact that Chairman Tenney might havehad an "unworthy purpose" in calling Brand-hove before the committee would not destroyhis legislative privilege. 7 3 The privilege wouldhave no value if a legislator were subject toliability based on speculations as to his motivesfor a particular act. Motive was irrelevant aslong as the legislator was acting within the tra-ditional legislative sphere. Furthermore, in re-viewing the actions of the Tenney committee,the Court noted that legislative investigationsare "an established part of representative gov-ernment,"'74 and on the facts before it thereappeared to be substantial reason for the com-mittee to have recalled Mr. Brandhove, regard-less of the personal motives of the Chairman.

Legislative committees have been charged withlosing sight of their duty of disinterestedness. Intimes of political passion, dishonest or vindictivemotives are readily attributed to legislative con-duct and are as readily believed. Courts are notthe place for such controversies. Self-disciplineand the voters must be the ultimate reliance fordiscouraging or correcting such abuses. Thecourts should not go beyond the narrow confinesof determining that a committee's inquiry may befairly deemed within its province. To find that acommittee's investigation has exceeded thebounds of legislative power it must be obviousthat there was a usurpation of functions exclu-sively vested in the Judiciary or the Executive.The present case does not present such a situa-tion. Brandhove indicated that evidence previ-ously given by him to the committee was false,and he raised serious charges concerning thework of a committee investigating a problemwithin legislative concern. The Committee wasentitled to assert a right to call the plaintiff be-fore it and examine him. 175

Thus, the Court concluded, since the Califor-nia legislators were "acting in a field where

governmental officials. See, e.g., Wood v. Strickland,420 U.S. 308 (1975) (qualified immunity for schoolboard members not abrogated); Scheuer v. Rhodes,416 U.S. 232 (1973) (qualified immunity for governorand officials of national guard not abrogated); Pier-son v. Ray, 386 U.S. 547, 554 (1967) (absolute immu-nity of judges and qualified immunity of police offi-cers not abrogated).173 341 U.S. at 377.174Id.

175 Id. at 377-78 (footnotes omitted).

legislators traditionally have power to act,' ' 76

they were immune from suit under §1983.At the time of the suit, the California consti-

tution had no speech or debate privilege, andnowhere in the opinion does the Court suggestthat the federal constitutional privilege wasbeing applied to the state legislators. There-fore, it seems clear that the Court was adoptingsome sort of federal common law immunity toprotect Tenney and his committee. What is farless clear, however, is whether the immunityapplied was commensurate with the federalspeech or debate privilege. Some support forthe view that the Tenney privilege is equivalentto speech or debate protection is at least impliedby the fact that the Court cites Tenney in most ofthe recent speech or debate clause cases inwhich the scope of the federal privilege is dis-cussed.17 7 The position is further strengthenedby the Court's own words in United States v.Johnson that the Tenney Court "viewed the statelegislative privilege [applied to Tenney] asbeing on a parity with the similar federal privi-lege.... '178 However, despite the Court's ref-erences to Tenney in the federal speech or de-bate clause cases, a careful examination of thelanguage of Tenney and of the Court's citationsto the case both within and without the contextof the speech or debate privilege strongly sug-gests that the protection granted Tenney wasderived not from the constitutional protectionafforded federal legislators but from the com-mon law doctrine of official immunity.

First, it should be noted that the language ofthe Tenney Court does not determine the scopeof the privilege applied. The catch phrase ofthe Tenney opinion was that the state legislatorswere immune from civil liability under §1983for "acts done within their sphere of legislativeactivity."'79 These words are, of course, strik-

17 6 Id. at 379.177 See, e.g., Gravel, 408 U.S. at 624; Brewster, 408

U.S. at 514;Johnson, 383 U.S. at 179.178 383 U.S. at 180. See also, Powell v. McCormack,

395 U.S. 486 (1969) in which the Court stated "ThisCourt has on four occasions, Dombrowski v. East-land, 387 U.S. 82 (1967); United States v. Johnson,383 U.S. 169 (1966); Tenney v. Brandhove, 341 U.S.367 (1951); and Kilbourn v. Thompson, 130 U.S. 168(1881) been called upon to determine if allegedlyunconstitutional action taken by legislators or legisla-tive employees is insulated from judicial review by theSpeech or Debate Clause." 395 U.S. at 501. But seeBrewster, 408 U.S. at 516, n.10 in which the Court saidTenney was not a speech or debate clause case.

179 341 U.S. at 376.

1977]

COMMENTS

ingly similar to those used by the Court inKilbourn to hold that under the speech or de-bate clause federal Congressmen are immunefrom liability for "things generally done in asession of the House ... in relation to thebusiness before it."' 80 They are also close to thewords of the Court injohnson and Gravel, bothof which held that federal legislators could notbe prosecuted for their "legislative acts."18'However, the language of Tenney is also quitesimilar to that used by the Court to describe thescope of the doctrine of official immunity. Forexample, in Bradley, the Court found judges tobe immune from liability "for acts done by themin the exercise of their judicial functions."" 2

And, in Spalding, the Court held executive offi-cials immune while "exercising the functions of[their] office ... within the limits of [their]authority.' 8 s Thus, one must go beyond thelanguage of the Court to determine the natureof the privilege it recognized.

The Government, in its brief before the threejudge panel of the Seventh Circuit in the Craigcase, suggested that Tenney must be viewed asan official immunity case because the SupremeCourt has "aligned" Tenney with other officialimmunity cases.18 4 For example, in Pierson v.Ray, 85 in which the Court held that §1983 didnot abolish the common law official immunityof judges, the Court referred to Tenney in itsdiscussion of common law immunities as if Ten-ney were a traditional common law immunitycase.

186

Similarly, in both Wood v. Strickland18 7 andScheuer v. Rhodes, 188 two cases involving the civilliability of state officials under § 1983, the Courtreferred to Tenney in the course of its analysis ofthe official immunity limitations on §1983, with-out distinguishing the grant of immunity inTenney as broader than that applied in suitsagainst nonlegislative officials. 8 ' Finally, in Doe

180 103 U.S. at 204.181 408 U.S. at 619; 383 U.S. at 185.182 80 U.S. at 347.8 161 U.S. at 498.

184 Brief for the United States at 18-21.185 386 U.S. 547 (1967).186 The Court stated: "The legislative record gives

no clear indication that Congress meant to abolishwholesale all common-law immunities. Accordingly,this Court held in Tenney v. Brandhove that the immu-nity of legislators for acts within the legislative rolewas not abolished." Id. at 554 (citation omitted).

187 420 U.S. 308 (1975).188 416 U.S. 232 (1974).189 420 U.S. at 316-21; 416 U.S. at 243-44.

v. McMillan,'9 a case in which the Court had todeal specifically with the parameters of both thespeech or debate privilege and official immu-nity, the court used Tenney only in its discussionof official immunity. 191

One might argue, however, that even if theCourt has "aligned" Tenney with its official im-munity cases, such an alignment is not neces-sarily dispositive of the issue of a legislator'scriminal liability. Official immunity is, after all,a flexible doctrine which varies in scope withthe type of official involved. When applied tolegislators it might, therefore, be broad enoughto give them immunity from civil and criminalliability rather than just the traditional civil im-munity granted to judicial and executive offi-cials. Outside the constitutional context, wherebalance of power considerations must be givenconsiderable weight, there is no apparent rea-son for granting such significantly broader im-munity to legislators, however. The purpose ofofficial immunity is to safeguard the independ-ence of the official. That purpose is adequatelyserved by limiting the possibility of civil suits.Criminal prosecutions, regardless of the officialaccused, simply do not provide the same "po-tential for harassment"' 19 2 as civil suits.

In O'Shea v. Littleton, 193 the Supreme Courtgave some indication that it not only recognizesan official immunity for state legislators whichis different from speech or debate protection,but also that, at least for purposes of a federalcriminal prosecution, it views all forms of offi-cial immunity as equal. O'Shea, it will be re-membered, was a suit for injunctive reliefagainst a state judge and magistrate in whichthe Court, albeit in dictum, went out of its wayto warn that state officials may be criminallyliable for exercise of their official duties in such

90 412 U.S. 306 (1973). This case is also discussed innote 138 supra.

191 In Doe, both a Congressman and the govern-ment printer were sued for publication of a libel in acommittee report. The Court discussed the Con-gressman's immunity under the speech or debateclause. It dealt with the printer's immunity under thedoctrine of official immunity. Tenney was cited only inthe section of the case dealing with the printer's im-munity. It was cited for three specific propositions: 1)"official immunity has been held applicable to offi-cials of the Legislative Branch," 412 U.S. at 319 n.13;2) the scope of the official immunity conferred is notthe same for all officials, id. at 319; 3) the scope ofimmunity is tied to the range of official authority, id.at 320.

192 United States v. Anzelmo, 319 F. Supp. at 1119.193 414 U.S. 488 (1974).

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A SPEECH OR DEBATE PRIVILEGE

a way as to violate federal law. Far from except-ing legislators from this warning, the Courtmade specific reference to their potential liabil-ity:

[W]hatever may be the case with respect to civilliability generally, or civil liability for willful cor-ruption, we have never held that the perform-ance of the duties of judicial, legislative, or exec-utive officers, requires or contemplates the im-munization of otherwise criminal deprivationsof constitutional rights.194

This statement that legislators are so liablestands in direct contrast to the holding of theCourt in Johnson that under the federal speechor debate clause the legislative conduct of fed-eral legislators cannot constitute either the basisfor a criminal prosecution or evidence that acrime was committed. The implication seemsclear-state legislators do not enjoy the samebroad protection given federal legislators un-der the speech or debate clause.

If, as the above mentioned cases seem toindicate, Tenney merely recognized the tradi-tional common law official immunity of legisla-tors, why does the Court cite it in the speech ordebate clause cases as if the privilege it ex-tended were commensurate with the speech ordebate privilege? There is no clear answer tothis question. In some cases it appears that theCourt simply cites Tenney inaccurately. For in-stance, in Gravel, the Court stated:

Thus, voting by Members and committee re-ports are protected; and we recognize today- asthe Court has recognized before, Kilbourn v.Thompson, 103 U.S. at 204; Tenney v. Brand-hove, 341 U.S. 367, 377-378 (1951)- that aMember's conduct at legislative committee hear-ings, although subject to judicial review in var-ious circumstances, as is legislation itself, maynot be made the basis for a civil or criminaljudgment against a Member because that con-duct is within the 'sphere of legitimate legislativeactivity.' 95

Clearly neither Kilbourn nor Tenney said any-thing about criminal liability. Tenney was care-fully limited to civil liability under §1983 andKilbourn did not raise the issue of criminal pros-ecutions. The immunity of federal legislatorsunder the federal clause from possible criminalliability for their legislative acts was not settleduntilJohnson was decided in 1966, and theJohn-

" Id. at 503 (emphasis added) (citations omitted).195 408 U.S. at 624.

son court expressly noted that neither Kilbournnor Tenney nor any other case "cast bright lighton the question." 196

In most of the speech or debate clause cases,however, the Court's use of Tenney can proba-bly be best understood as a reference to a casein which the Court has treated analogous, butnot identical, issues. Official immunity andspeech or debate privilege overlap a great deal.If the Court has not adequately distinguishedbetween the two in the speech or debate clausecases it is probably because on the particularfacts of the case such a distinction was simplynot crucial. Since official immunity in its broad-est form is narrower than speech or debateimmunity, the protection recognized under theformer would clearly be recognized under thelatter. Thus, in the context of the speech ordebate cases, there is normally no need meticu-lously to distinguish Tenney as recognizing onlythe narrower immunity. The language of Ten-ney is directly and easily transferable to discus-sions of speech or debate protection.197

Bond v. Floyd, 98 a case which does not evenmention Tenney, also helps support the argu-ment that the Court does not view the privilegegranted the legislators in Tenney as the equiva-lent of speech or debate protection. JulianBond was elected to the Georgia legislature fora special one year term to commence in January1966.1 99 Because of certain statements he hadmade about the conduct of the Vietnam War, 20 0

the Georgia House, after a hearing at whichBond testified, concluded that he could nothonestly take either the oath of office requiredby the Georgia constitution or the oath to sup-port the Constitution of the United States. Theclerk refused to administer either oath and theHouse refused to seat him. Bond sued for in-

196 383 U.S. at 180.197 Similarly, since on the facts the Tenney commit-

tee's conduct was protected under the narrowest viewof official immunity (the committee was clearly en-gaged in legislative business and there was ampleevidence of a legislative purpose in recalling Bran-dhove to explain his prior testimony), there was noneed to distinguish between any broader speech ordebate privilege and the doctrine of official immu-nity.

198 385 U.S. 116 (1966).199 He was subsequently re-elected in a special elec-

tion held to fill the vacancy caused by the House'srefusal to seat him. He was re-elected in the regularNovember, 1966 election as well. Id. at 128.

200 The statements are reproduced in the Court'sopinion. Id. at 121-22.

1977]

junctive relief under §1983201 against thespeaker and speaker pro-tem, certain officersof the House, and several members as repre-sentatives of the membership of the entirebody.

The state argued that the Georgia constitu-tion specified the qualifications for the office ofstate legislator, that the oath provisions consti-tuted part of those qualifications, and that theHouse had the power to "look beyond the plainmeaning of the oath provisions . . . to [deter-mine] whether a given Representative may takethe oath with sincerity. '20 2 Although admittingthat it could not exclude a duly elected repre-sentative on racial or other clearly unconstitu-tional grounds, the state argued that the oathrequirement was not unconstitutional and,therefore, "there should be no judicial reviewof the legislature's power to judge whether aprospective member may conscientiously takethe oath required by the State and Federal Con-stitutions.120 3 Bond, on the other hand, main-tained that the judgment of the House that hecould not honestly take the oaths of office vio-lated his first amendment rights.

The Supreme Court agreed that the legisla-ture had infringed Bond's right to free speech:

[W]e do not quarrel with the State's contentionthat the oath provisions of the United States andGeorgia Constitutions do not violate the FirstAmendment. But this requirement does not au-thorize a majority of state legislators to test thesincerity with which another duly elected legisla-tor can swear to uphold the Constitution. 2

Bond's statements did not violate any law. Al-though the state could require an oath of loy-alty, that oath could not be used to "[limit] itslegislators' capacity to discuss their views of lo-cal or national policy. '205

Nowhere in the opinion did the Court men-tion the holding of Tenney that under §1983Congress did not extinguish the immunity oflegislators acting in their traditional sphere oflegislative activity. Nor did it distinguish thetwo cases on the basis that Brandhove had suedfor damages and Bond was asking for injunc-tive relief. It did not mention Tenney at all. Nor

201 Also 28 U.S.C. §§ 1331, 1343(3), 1343(4), 2201,and 42 U.S.C. § 1971(d), 1988 (1970).

202 385 U.S. at 130.2

3Id. at 131.214Id. at 132.205 Id. at 135.

did it discuss whether state legislative function-aries, such as the clerk of the Georgia House,might be sued although members of the Housethemselves could not. In short, the Court didnot suggest that a state legislator sued underfederal laws had any sort of speech or debateprotection.

This disposition of Bond is simply inexplica-ble if the Court conceives of Tenney as affordingstate legislators a privilege commensurate withspeech or debate protection. At the federallevel such a suit clearly cannot be maintained.In Powell v. McCormack,2 °0 the Court explicitly soheld. Congressman Powell, although dulyelected and meeting all the qualifications forthe office of Representative, was not permittedto take the oath of office pending a Housecommittee investigation into certain of his activ-ities. After its investigation the committee rec-ommended that Powell be seated as a Member,but censured. The full House, however, votedto exclude him from membership. Powell thenbrought suit for injunctive and declaratory re-lief against the Speaker, Clerk, Sergeant-at-Arms, Doorkeeper, and certain named Mem-bers of the entire House. 20 7 The Court immedi-ately dismissed the action against the Congress-men as violative of their speech or debate privi-lege. The action was allowed to proceed, how-ever, against the House employees.

20 °

Of course, Powell was decided afterBond, butfor purposes of this discussion, the timing ofthe two cases is largely irrelevant. The distinc-tion between a suit against employees of theHouse and Members of the House themselveswhich the Powell Court recognized and whichthe Bond Court did not even mention, was es-tablished as early as 1881 in Kilbourn, and thatsame distinction was reaffirmed in Tenney. 20 9 If

Tenney held that state legislators are protectedby an immunity based on the speech or debateclause, the Bond Court certainly would havebeen bound to deal with the distinction. Thus,

206 395 U.S. 486 (1969).2107 Although the Congress which had excluded him

had ended and a new Congress was in session, theCourt held that Powell's claim for back salary pre-vented the case from being moot. Id. at 500.

208 Id. at 504-06. As in Kilbourn, the Court left forfuture decision the question of whether suit could bemaintained against the Congressmen if no other rem-edy was available and no House employee had partic-ipated in the action with the Congressmen. Id. at 506n.26.

209 341 U.S. at 378.

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A SPEECH OR DEBATE PRIVILEGE

by totally ignoring the question of the immunityof the Georgia legislators, the Court implicitlyindicated that whatever legislative privilegestate legislators enjoy in federal court, it is con-siderably more limited than speech or debateprotection.

Another indication thatBond may be cited forsuch a proposition is the failure of the PowellCourt to distinguish or even mention Bond inconnection with the question of legislative privi-lege. Since it cited Bond in regard to othermatters, 210 the Court was clearly aware of thedisposition of the case. Yet obviously it felt noneed to explain why a suit against the membersof the Georgia legislature was allowable and suitagainst the Members of the federal Congresswas not. The most probable reason for this lackof even an explanatory footnote is simply thatthe Court saw no conflict between the two casesbecause the privilege of state legislators is notcommensurate with speech or debate privi-lege.

21 1

Jordan v. Hutchenson,2 12 a Fourth Circuit case

decided prior to Bond, explicitly holds that theimmunity of state legislators is more limitedthan the speech or debate protection given fed-eral legislators. In Jordan, plaintiffs alleged thata committee of the Virginia legislature was act-ing as part of a conspiracy of all elected officialsin the state to "intimidate, discourage andimpede the plaintiffs and all Negro citizens ofVirginia from using the courts as a means ofending the practices of racial segregation inthat state. 21 3 They sought an order requiring

210 Bond was cited in reference to the claim of moot-ness. 395 U.S. at 499.

211 Another case which illustrates the difference inthe Court's treatment of federal legislators is Eastlandv. United States' Servicemen's Funds, 421 U.S. 491(1975). In Eastland the Court refused to quash a sub-poena issued by a congressional committee investigat-ing a servicemen's club, although the members ar-gued that compliance with the subpoena would vio-late their first amendment rights. The Court foundthe actions of the committee and its members im-mune from judicial interference because of thespeech or debate clause. Analysis of the speech ordebate privilege was central to the Court's decision.Compare not only Bond, but also Denny v. Bush, 367U.S. 908 (1961) affg per curiam Bush, Orleans ParishSchool Board, 191 F.Supp. 871 (E.D.La. 1961). InDenny the Court affirmed with no discussion of legis-lative privilege, the lower court injunction against astate legislature attempting to evade court ordereddesegregation.

212 323 F.2d 597 (4th Cir. 1963).21

13Id. at 599. The Virginia legislature had at-

the prosecution of two of the named defend-ants under 18 U.S.C. §§241 and 242,214 and aninjunction prohibiting the investigatory activityof the committee. Holding that the plaintiffshad stated a cause of action, the court noted:

Although the federal courts will recognize andrespect the state's right to exercise through itslegislature broad investigatory powers, never-theless these powers are not unlimited and itremains the duty of the federal courts to protectthe individual's constitutional rights from inva-sion either by state action or under colorthereof. Especially is this true in the sensitiveareas of First Amendment rights and racial dis-crimination. Where there exists the clear possi-bility of an immediate and irreparable injury tosuch rights by state legislative action the federalcourts have exercised their equitable powers in-cluding ... injunction.

215

The court rejected the defendants' argumentthat Tenney indicated immunity from suit:"That case holds that legislators when actingwithin the scope of their authority are not liablefor money damages, notwithstanding their con-duct may have been motivated by personal spiteor vindictiveness. ' 21 6 It was not applicable to a

case in which injunctive relief was asked in or-der to protect federal rights. In such a case,according to the court, the federal courts havethe power to review the actions of the legisla-ture and to grant appropriate relief. Thatpower cannot be limited by a claim of legislativeprivilege.

Of course the Supreme Court has never beenas explicit as the Fourth Circuit on this issue.But the fact that it has granted injunctive reliefagainst state legislatures and their memberswith no discussion of legislative privilege whenlegislative privilege stands out as a crucial issue

tempted to expand the coverage of its laws againstchamperty, barratry and maintenance to include theactivities of civil rights organizations within the state.The particular committee cited in Jordan was origi-nally established to oversee "the laws of the Common-wealth relating to the administration of justice ...particularly those relating to the statutorily redefinedoffenses of champerty, maintenance, etc .... "Id. at602. Its activities were later expanded to cover legalethics and the unauthorized practice of law. Plaintiffsalleged that the committee by use of its investigatorypower was interfering with their efforts as lawyers toeliminate segregation.

214 18 U.S.C. §§ 241, 242 (1970).215 323 F.2d at 601.216 Id. at 602.

1977]

COMMENTS

in similar cases at the federal congressionallevel is a strong indication that the Court doesnot recognize a similar privilege at both levels.

CONCLUSION

A Brief Return to the Craig Opinion

The dilemma facing the Seventh Circuit inCraig was to determine from both the history oflegislative privilege and the relevant SupremeCourt decisions whether state legislators ac-cused of violating federal criminal laws enjoysome form of federal common law privilege.Obviously, neither history nor Supreme Courtdecisions provide clear guidance, and morethan one conclusion can be, and was, drawnfrom the same source material. However, thedecision of the full court 2 7 seems to reflectmore accurately both the history of legislativeprivilege and the principles articulated by theSupreme Court than does the earlier panel de-cision.

The principal difference between the panelmajority and the full court majority opinions isone of emphasis. The panel majority reliedalmost exclusively on the broad language of thespeech or debate clause cases, and it stressedthe need for legislative independence at all lev-els of government. It argued that in a govern-ment of limited powers - with those powers notspecifically granted the federal government re-served to the states under the tenth amend-ment-the states had an essential role to play inthe operation of the governmental system.Fearing that the independence of the state leg-islatures would be compromised if the federalgovernment could threaten state legislatorswith criminal liability for their legislative acts,the panel considered a broad legislative privi-lege, equivalent to the speech or debate clause,to be necessary in order to eliminate that poten-tial threat.

The problem with the panel's singular em-phasis on independence is that it ignores boththe implications of the supremacy clause andthe separation of powers function served by thespeech or debate clause at the federal level. Theconcept of legislative privilege developed as aconsequence of the competition for power be-

217 All references to the full court decision in thissection specifically emcompass both Judge Tone'sconcurrence in the panel decision and the full courtopinion on rehearing. The latter essentially adoptedthe former.

tween the executive and legislative sections ofgovernment. In England, it arose in the battlefor supremacy between the Crown and Parlia-ment. In the United States, the principle wasadapted to ensure the separation and balanceof power between two equal and clearly com-peting branches of the federal government. Inboth cases it was principally the power of thecompeting executive branch that the privilegewas designed to curb.

Within any federal system there is, of course,potential for competition between the separatelevels of government, just as various branchesat the same level may compete for power. Butunder the Constitution when authority is spe-cifically delegated to the federal government,the supremacy clause resolves the issue of com-petition for power. Concern for the independ-ence of a state legislature, on the other hand,involves the relationship within the state gov-ernment between legislative and executivebranches, a tension properly controlled by statespeech or debate privileges. Therefore, thequestion that should be asked in federal prose-cutions of state legislators is not whether theindependence of a state legislature may in someway be affected, but whether the federal gov-ernment has the authority to act. Whateverquestions may once have been raised with re-spect to the federal government's authority toact in matters of criminal law enforcement, thatfederal power is now clearly established underthe commerce clause" ' and other explicitgrants of authority such as the power to estab-lish the post office. 9 Both the Hobbs Act andthe Mail Fraud Statute under which the legisla-tors in Craig were prosecuted have been specifi-cally upheld against constitutional attack. 22 0

218 Cases upholding the power of the federal gov-ernment to define and punish criminal activity underpthe commerce clause, in conjunction with the neces-sary and proper clause are numerous. For broadinterpretation of the reach of this power, see Perez v.United States, 402 U.S. 146 (1971) in which the Courtupheld the constitutionality of a congressional statutedirected at "loan sharking" activities over the vigor-ous dissent of'Justice Stewart who maintained that thecrime was purely local in nature and not within thepower of the federal government to punish.

21" For a discussion of the federal power under thisclause, see Cushman, National Police Power under thePostal Clause of the Constitution, 4 MINN. L. REv. 402(1920).

220 See, e.g., United States v. Staszcuk, 517 F.2d 53(1975) (Hobbs Act); United States v. Mirabelle, 503F.2d (1065, 8th Cir. 1974) (mail fraud).

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A SPEECH OR DEBATE PRIVILEGE

Both these statutes have also been construed toreach the illegal activities of state officials, 221

and there is no reason why the activities of statelegislators alone should be exempted.

In contrast to the panel decision, the fullcourt decision in Craig focuses not only on theseparation of powers function of the speech ordebate privilege, but also on the limitations ofboth that privilege and the doctrine of officialimmunity. It implicitly recognizes that inde-pendence is not the sole factor to be consideredin determining the nature of a legislator's privi-lege. Almost all government officials enjoysome sort of privilege from suit premised ontheir need for independence in order to carryout their duties. But not all officials are equallyimmune. The differences in protection are re-lated both to the nature of the particular offi-cial'sjob and to the requirements of the consti-tutional system, requirements which vary whenthe issue is not intra-federal power, but federal-state relations.

The full court opinion also reveals a morecautious attitude toward the creation of federal

221 See, e.g., United States v. Kuta, 518 F.2d 947 (7thCir. 1975) (alderman charged under Hobbs Act);United States v. Price, 507 F.2d 1349 (4th Cir. 1974)(chairman of county council charged under HobbsAct); Shusan v. United States, 117 F.2d 110 (1941)(member of board of commissioners charged undermail fraud statute).

common law privileges. Its tone recalls Wig-more's reflections on the public's right to"everyman's evidence. '

"222

The investigation of truth and the enforcementof testimonial duty demand the restriction, notthe expansion, of... privileges. They should berecognized only within the narrowest limits re-quired by principle. Every step beyond theselimits helps to provide, without any real neces-sity, an obstacle to the administration of jus-tice .

223

This same philosophy is implicit in the decisionsof the Supreme Court dealing with legislativeprivilege, if one considers the entire spectrumof cases in which the Court has dealt, directly orindirectly, with the issue. The Court has notextended the privilege "beyond its intendedscope. 12 24 Where there is no real necessity foran expansive interpretation of privilege, nonehas been given. Similarly, the final decision ofthe court in Craig recognizes that in the contextof federal criminal prosecutions of state legisla-tors there is no necessity for an expansive inter-pretation of legislative privilege, and noneshould be given.

222 8 WIGMORE EVIDENCE § 2192 (Mc Naughtenrev. 1961).

223 Id.224 Brewster, 408 U.S. at 516.

1977]

THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGYCopyright © 1977 by Northwestern University School of Law

THE RIGHT OF AUTONOMY: CONSTITUTIONAL LIMIT TO PLENARYFEDERAL POWER

As every United States citizen ought surely tobe aware, government in this country functionsthrough two entities, the state and federal gov-ernments. Since these institutions are by defini-tion separate forms, resisting ready integration,those regions where they interface have been incontinuous flux from before the birth of theConstitution.' The struggle between them hasresulted in a steady erosion of the position ofthe state vis-a-vis the national government as anindependent political body. 2 Indeed, since thebeginning of the Republic, an erratic but steadydecline in the power of the states has beenrecognized by the courts.3 So complete is thisdecline that the classic expression of the struc-ture of state-national relations, the tenthamendment, has been shorn of all substanceand called a mere "truism" .4 Yet, to considerthe shift of power as ended save for the even-tual dismantlement of state governmental ma-chinery, is to overlook both the vitality of theConstitution as a source of preservation of stateindependence and the ability of the SupremeCourt to invigorate it. While the struggle forpower has long since been decided, there nowremains the need to deal with the state's right toautonomy5 upon which the Constitution was

I See remarks of Messrs. Patterson, Lansing, Ran-dolph, and Hamilton, J. MADISON, NOTES OF DE-BATES IN THE FEDERAL CONVENTION OF 1787, 118-39(1966).

2 Kurland, Foreword: Equal in Origin and Equal inTitle to the Legislative and Executive Branches of Govern-ment, 78 HARV. LAW REV. 143,144 (1964) (hereinaftercited as Kurland).

3 Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793),where the Supreme Court found that the Constitu-tion had shorn the states of sovereign immunity fromsuit and a state could thus be sued by its citizens.

I "The Amendment [the Tenth] states but a truismthat all is retained which has not been surrendered."United States v. Darby, 312 U.S. 100,112 (1941). Thetenth amendment provides that "[t]he powers notdelegated to the United States by the Constitution,nor prohibited by it to the States, are reserved to theStates respectively, or to the people." U.S. CONST.amend. X.

5 The labeling of this right as one of autonomy wasarbitrarily selected by the author to express the na-ture of the purpose which it serves in the federalsystem. The word was used in a related context byJustice Field in Ex parte Virginia:

based and which is becoming increasingly ex-plicit in the decisions of the Supreme Court.

I. HISTORY OF STATE-NATIONAL CONFRONTA-

TION OVER POWER

While the tenth amendment is not the onlymarker in the Constitution concerning the rela-tionship of state and national power, with rareexceptions6 its language has provided the para-digm of judicial analysis. Assuming that powerwas reserved to the states or people unless adelegation by either of those groups could befound in the Constitution,7 the crucial question,traditionally, was one of defining the word"power".

Following the adoption of the Constitution, ittook only thirty years of constitutional interpre-tation before the potential of national powerwas exponentially increased. While the Articlesof Confederation had limited the national gov-ernment solely to its "express powers," theConstitution of 1789 contained no such limiting

Nothing, in my judgment, could have a greatertendency to destroy the independence and au-tonomy of the States ... than the doctrine as-serted in this case, that Congress can exercisecoercive authority over judicial officers of theState in the discharge of their duties under Statelaws.

100 U.S. 339, 358 (1879) (Field, J., dissenting).6 For example, Dartmouth College v. Woodward,

17 U.S. (4 Wheat.) 518 (1819), concerned the contractclause, art. I, § 10.

One commentator has interpreted the tenthamendment to mean:

The States of course possess every power thatgovernment has ever anywhere exercised, ex-cept only those powers which their own constitu-tions or the Constitution of the United Statesexplicitly or by plain inference withhold. Theyare the ordinary governments of the country;the federal government is its instrument only forparticular purposes.

W. WILSON, CONSTITUTIONAL GOVERNMENT IN THE

UNITED STATES 184 (1908).' Article II of the Articles of Confederation stated:Each State retains its sovereignty, freedom andindependence, and every power, jurisdictionand right, which is not by this conference ex-pressly delegated to the United States, in Con-gress assembled.

Vol. 68, No. 1Printed in U.S.A.

language. McCulloch v. Maryland' extended thedefinition of "power" to include those powersreasonably implied via the necessary andproper clause of the Constitution. 0 Loss ofpower by the states during this period primarilyconcerned those powers outgoing in nature;that is, powers which extended or had the po-tential to expand a state's impact beyond itsboundaries. Thus, McCulloch circumscribed thestate's power to tax. Five years later, in Gibbonsv. Ogden," the federal commerce power 2 wassufficient to invalidate a state's attempt to exer-cise its police power, the classic pre-emptioncase.' 3 Control of slavery, insofar as it was aquestion of citizenship, was found to be beyondthe power of the states to inhibit.' 4

These pre-Civil War decisions expanded fed-eral power at the expense of the state, but onlyinsofar as the state partook of activities thatmight interfere with those which had been del-egated to the national government. Withintheir own realm, the states remained independ-ent.' 5

While the Civil War answered whether theConstitution was a dissolvable compact, itsprogeny-the thirteenth, fourteenth, and fif-teenth amendments-posed grave questions asto the ordering of power between the state andnational governments. Now the federal govern-

9 17 U.S. (4 Wheat.) 316 (1819). In McCulloch, theSupreme Court found the states to be incapable un-der the Constitution to tax property owned by thenational government.

10 Congress shall have Power.. to make allLaws which shall be necessary and proper forthe carrying into Execution the foregoingPowers, and all other Powers vested by this Con-stitution in the Government of the UnitedStates, or in any Department or Officer thereof.

U.S. CO ST. art I, § 8.11 22 U.S. (9 Wheat.) 1 (1824).12 U.S. CONST. art. I, § 8, cl. 3.'3 See Comment, The Preemption Doctrine: Shifting

Perspectives on Federalism and the Burger Court, 75COLUM. L. REv. 623 (1975).

14 See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539(1842), where a Pennsylvania statute making illegalthe willful taking of people out of the state to enslavethem was found to be unconstitutional. See also, DredScott v. Sanford, 60 U.S. (19 How.) 393 (1856).

"5The powers exclusively given to the federalgovernment are limitations upon state author-ities. But, with the exception of these limita-tions, the states are supreme; and their sov-ereignty can be no more invaded by the actionof the general government, than the action ofthe state governments can arrest or obstruct thecourse of the national power.

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 570 (1832).

ment became the guarantor of certain rights ofthe people against state government intrusionor interference. Unquestionably, federal powerhad been expanded at the cost of the states.16

What remained to be determined was how farthat expansion reached into the states.17

Also during this period, the power of thestate to affect outgoing enterprises and rightscontinued to be scrutinized and regulated. Theclassic example of the reach of federal power isthat which traces interstate commerce. Whileearly restrictive distinctions denied the applica-tion of federal power to private actions,' 8 therestrictions proved to be little more than both-ersome delaying actions, only postponing fed-eral action. State power as a bar proved to be amore effective limitation. Hammer v. Dagen-hart'9 and the decisions which found variousNew Deal acts unconstitutional20 emphasizedthe continuing belief that there existed substan-tive powers retained by the states which coulddefeat otherwise legitimate national actions.

The respective reach of national and statetaxing powers continued to be a field of uncer-tain bounds. In Dobbins v. Commissioners of ErieCounty ,21 following McCulloch, the states werefound to be incompetent to tax the salary of a

federal official. Conversely, in Collector v. Day, 22

the national government was denied the rightto tax the salary of a state judicial officer. Yet,in South Carolina v. United States,23 the nationalgovernment was found to be capable of taxingcertain functions which the state had assumedin the exercise of its police power. The sym-metrical nature of the tax system was breakingdown, as the needs of the national governmentbegan to take precedence.

16 "They [the XIII, XIV, and XV Amendments]were intended to be, what they really are, limitationsof the power of the States and enlargements of thepower of the Congress." Ex parte Virginia, 100 U.S.339, 345 (1879).

17 The Fourteenth Amendment withdrew fromthe States powers theretofore enjoyed by themto an extent not yet fully ascertained, or rather,to speak more accurately, limited those powersand restrained their exercise.

Twining v. New Jersey, 211 U.S. 78, 92 (1908).Is See, e.g, United States v. E. C. Knight, 156 U.S. 1

(1895).19 247 U.S. 251 (1918).20 Carter v. Carter Coal Co., 298 U.S. 238 (1936);

United States v. Butler, 297 U.S. 1 (1936); SchecterPoultry v. United States, 295 U.S. 495 (1935).

21 41 U.S. (16 Pet.) 435 (1842).22 78 U.S. (11 Wall.) 113 (1870).- 199 U.S. 437 (1905).

1977] AUTONOMY

COMMENTS

As to those powers and prerogatives of thestate which were internal in application, pri-marily the police power and its concern for thehealth and safety of its citizens, the entry of-fered to the national government by the CivilWar Amendments was bitterly fought and re-strictively perceived. While the Supreme Courtin The Slaughterhouse Cases24 recognized thegoals and reasoning of those amendments, itrefused to invigorate them.25 Indeed, in thoserare instances where the Court did act,2" theoutcry was loud and fierce. Similarly, attemptsto reach the criminal systems of the states viaincorporation of the provisions of the Bill ofRights into the fourteenth amendment dueprocess provision were soundly defeated.When the electric chair was first introduced,attempts were made to attack it as a cruel andunusual punishment. The Court rejected suchan approach, holding that:

The Fourteenth Amendment did not radicallychange the whole theory of the relations of thestate and Federal governments to each other,and of both governments to the people."

An attempt to incorporate the right against self-incrimination reached a like fate. 28 Indeed, inSouth Carolina v. United States, 29 the Court wentso far as to limit the federal power to intervenewithin a state to the provisions of a single con-stitutional clause,

[t]he Constitution provides that "the UnitedStates shall guarantee to every State in this Un-ion a republican form of government," Art. IV,

24 83 U.S. (16 Wall.) 36 (1873).2 The dissent clearly acknowledged the course the

future would eventually take:It [the power via the war amendments] is neces-sary to enable the government of the Nation tosecure everyone within its jurisdiction the rightsand privileges enumerated, which, accordingto the plainest considerations of reason and jus-tice and the fundamental principles of the socialcompact, all are entitled to enjoy. Without suchauthority any government claiming to be na-tional is glaringly defective.

83 U.S. (16 Wall.) 129 (Swayne, J., dissenting).26Ex parte Virginia, 100 U.S. 339 (1879). Virginiahad a statute requiring its judges to venire only re-sponsible men. One state judge had used this formu-lation to eliminate all blacks. In this case, the Su-preme Court upheld federal intervention.

27 In re Kemmler, 136 U.S. 436, 448 (1890).28 Twining v. New Jersey, 211 U.S. 78 (1908).29 199 U.S. 437 (1905).

sec. 4. That expresses the full limit of Nationalcontrol over the internal affairs of a State. 0

The last significant attempt to reject the ex-panded constitutional power of the nationalgovernment came with the "infamous ' 3 1 strik-ing down of a dozen pieces of New Deal legisla-tion. That process came abruptly to an end in1937, however, and the question of the distribu-tion of power between the federal and stategovernments began to be resolved.

The substantive impact of the tenth amend-ment did not long survive the Court's turna-bout. By 1941, the amendment reached"truism" status,2 2 as the Supreme Court finallydecided that a plenary power of the nationalgovernment could not be buffered or moder-ated by any powers inherent in the states. 33

There were no such powers.The Supreme Court for the first time in-

truded in a state criminal proceeding in Powellv. Alabama.34 The states' ability to mold and

determine their own criminal procedure beganto erode at a quickening pace in the years thatfollowed. The same day that an attempt to ex-

tend the fourth amendment exclusionary ruleto the states was defeated,- a confession ac-cepted by a state supreme court 6 was thrown

out by the United States Supreme Court asbeing coercively obtained in violation of the dueprocess provision of the fourteenth amend-ment.37 As state criminal proceedings becamemore encumbered with federal rights to pro-tect, they became more subject to federal re-view as to those rights.3

8

30 Id. at 454. If strictly adhered to, this would haveeffectively removed state action from judicial over-sight since the Court had held previously that art.IV, § 4 was directed not to the judiciary, but, rather,the Congress. Luther v. Borden, 48 U.S. (7 How.) 1(1849).

31 See Blaustein & Mersky, Rating Supreme CourtJustices, 58 A.B.A. J. 1183, 1186 (1972).

32 See note 4 supra.I Wickard v. Filburn, 317 U.S. 111 (1942).34 287 U.S. 45 (1932). The Court found that the

failure of the trial court to appoint counsel for thedefendant in a capital case was a violation of dueprocess as required by the fourteenth amendment.

" Wolf v. Colorado, 338 U.S. 25 (1949).36 Watts v. State, 226 Ind. 655, 82 N.E.2d 846

(1948).27 Watts v. Indiana, 338 U.S. 49 (1949).31 The decision in Frank v. Mangum, 237 U.S. 309

(1915), first opened federal courts for habeas corpusreview of state actions in limited circumstances.These circumstances were progressively broadened

[Vol. 68

AUTONOMY

The Warren Court ended judicial hesitationin applying provisions of the Bill of Rights tostate criminal proceedings through the four-teenth amendment. The exclusionary rule con-cerning evidence obtained from searches andseizures illegal under the fourth amendmentwas applied to the states in 1961.39 The provi-sions of the fifth amendment (prohibitionagainst double jeopardy4 and privilege againstself-incrimination 4 ) and the sixth amendment(right to a speedy trial,42 right to counsel,4 3

right to a jury trial for a criminal prosecution44

and the right to confront witnesses45), as well asthe derivative protections of Miranda v. Ari-zona,46 were held to apply to the states.

The Court has gone beyond the state's crimi-nal processes and has extended federal powerto reach the state's power to educate its citi-zens,4 provide recreation ,48 establish politicalsubdivisions49 and even constitute its own legis-lature.50 These extensions, however, were notbased on the plenary power of the federal gov-ernment but on the oversight responsibilitiesgiven it by the Civil War Amendments.

As more and more constitutional safeguardswere being grafted onto the state criminal proc-ess, there arose the notion that these rightsrequired a federal forum of review to ensuretheir exercise and enforcement." The basic ra-

in Brown v. Allen, 344 U.S. 391 (1953), Fay v. Noia,372 U.S. 391 (1963), and Kaufman v. United States,394 U.S. 217 (1969). But, see Stone v. Powell, 428U.S. 465 (1976). See also, text accompanying notes116-18 infra.

"9 Mapp v. Ohio, 367 U.S. 643 (1961).40 Benton v. Maryland, 395 U.S. 784 (1969). See

also, Ashe v. Swenson, 397 U.S. 436 (1970).41 Malloy v. Hogan, 378 U.S. 1 (1964).42 Klopfer v. North Carolina, 386 U.S. 213 (1967).43 The right was first extended to indigent felony

defendants in Gideon v. Wainwright, 372 U.S. 335(1963), and to indigent misdemeanor defendants sub-ject to incarceration in Argersinger v. Hamlin, 407U.S. 25 (1972).

44 Bloom v. Illinois, 391 U.S. 194 (1968).45 Pointer v. Texas, 380 U.S. 400 (1965).46 384 U.S. 436 (1966). See generally, Kamisar, A

Dissent from the Miranda Dissents: Some Comments on the"New" Fifth Amendment and the Old "Voluntariness" Test,65 MICH. L. REV. 59 (1966).

47 Brown v. Board of Education, 347 U.S. 483(1954).

48 Evans v. Newton, 382 U.S. 296 (1966); Gilmore v.City of Montgomery, 417 U.S. 556 (1974).

40 Gomillion v. Lightfoot, 364 U.S. 339 (1960).'o Baker v. Carr, 369 U.S. 186 (1962)." Younger v. Harris, 401 U.S. 37, 58 (1971).

tionale was that a federal right was being con-tested and that the states, which had been re-luctant to introduce these safeguards without aconstitutional mandate, would not be reliable inensuring their proper breadth. The result wasthe judicial extension of habeas corpus reviewin federal court of state court constitutionaldeterminations .52

The internal structure of the state had like-wise always been free from federal oversight.Judicial attacks based on the Guarantee Clauseof the Constitution 3 were rebuffed on thepremise that the power to carry out the guaran-tee of the section was legislative in nature . 4

This all changed in 1962, when Baker v. Carr55held the principle of "one man-one vote" appli-cable to the apportionment of state legislaturesthrough the Equal Protection Clause of thefourteenth amendment.56 Three years later,federal mandates concerning procedures to befollowed in the registration of the electorate bythe states were upheld by the Supreme Court inLouisiana v. United States 7 and South Carolina v.Katzenbach ." Indeed, the oversight processesvalidated in Katzenbach relegated the state to thestatus oT' a mere administrative unit of the na-tional government for purposes of voter regis-tration, as the ministerial control of the UnitedStates Justice Department was broad in scope,scrupulous in detail, and affirmative in nature.

These decisions mark the highwater crest ofnational manipulation of state institutions. To alarge extent, the intrusion of federal policy andpower into these reaches was a response to theinability of the state institutions to shift asquickly as national expectations. 9 The resultwas an abiding distrust in the competence ofthe states to act as they "ought" and the destruc-

5 See note 38 supra.3 "The United States shall guarantee to every State

in this Union a Republican Form of Government."U.S. CONST. art. IV, § 4.

54 Highland Farms Dairy v. Agnew, 300 U.S. 608(1937).55 369 U.S. 186 (1962).56 The principle ultimately was extended to

Congressional districts. The very nature of the Senateprecluded application of such a formula to Senateelections. For the Senate was not designed to berepresentative of the population, but it was to repre-sent the equal sovereignty of the states. See THEFEDERALIST No. 62 (A. Hamilton).

57 380 U.S. 145 (1965).383 U.S. 301 (1966).

9 Kurland, The Supreme Court and the Attrition of

State Power, 10 STAN. L. REV. 274, 282-283 (1958).

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COMMENTS

tion of the ability of the states to develop theirown ordering of priorities .60 The powers relat-ing to sovereignty-all the power which madean institution a state-have thus come to lodgewithin the national government. The states,lacking all effective substantive power, can beseen as mere political sub-units of the nationalgovernment. If transformation of the federalnational government into a unitary nationalgovernment has not yet occurred, the reason isnot lack of power, but lack of need or desire toexercise that power."

There is no longer any struggle between thestate and national governments as to where thepowers lie. The delegated powers of the federalgovernment have become the functional equiv-alent of all the powers:

There are today few, if any, governmental func-tions performed by the states that are not subjecteither to the direct control of the national gov-ernment or to the possibility of preemption bythe national government. The concept of sepa-rate sovereignties within this country is largely amatter of history.2

Thus, between the final recognition and ac-ceptance of the plenary nature of the delegatedpowers of the national government 3 and the

60 When the state governments fail to satisfy the

needs of the people, the people appeal to theFederal Government. Whether the question isone of the advancement of human knowledgethrough research, of law and order or the rightof all persons to equal protection of the law, theFederal Government need become involved onlywhen the states fail to act.

(quoting Chief Justice Warren in A. MASON & W.BEANEY, THE SUPREME COURT IN A FREE SOCIETY

310 (1959).)61 Such a change may indeed be what is required in

order for the United States to respond to the require-ments and needs of its citizens and the exigenciesgenerated by the international community. Yet, inso-far as our Constitution is the law from which oursystem emanates and since its integrity is crucial forthe continuing integrity of the system, the uses towhich it is put must remain in harmony with the spiritof the document. For the states to become only inte-grated components within a master system, withoutcharacter of their own, a constitutional amendmentshould be required, not judicial fiat or legerdemain.

62 Kurland, supra note 2, at 163. All that remains tobe determined is how much power Congress cares toexercise. See Murphy, State Sovereignty and the Consti-tuition -A Summary View, 33 Miss. L. REV. 353, 358(1962). See also, Kurland, supra note 2, at 144.

1 See United States v. Darby, 312 U.S. 100, 115(1941).

ability of the national government to set stan-dards and conditions to which the state govern-ments must conform, the states as institutionshave become superfluous without a visiblechange in the document which they caused tohave established in the first instance. Thereexists the existential dilemma of the states: alleffective power having passed from them;what is the meaning and purpose of their exist-ence?

II. PERCEPTIONS OF AUTONOMY

The judicial response to this judicially cre-ated paradox has not yet been recognized forwhat it is: a failure to separate the questions ofinternal state power and internal state integ-rity.6 4 Sovereignty is two-pronged in nature. Itconsists of power and discretion. Power allowsthe sovereign to effectuate its wishes with aslittle external interference as possible. Discre-tion is the sovereign's ability to order its priori-ties, to determine the manner in which it willachieve them, and to compose the nature of itsown infrastructure. 65

The battles which have taken place betweenthe state and federal governments have beenperceived to have been fought over power. Theresolution of this question of power wasthought to be dispositive of the question ofautonomy, but not that of the existence of statesovereignty. The reverse is true.

The power of the states has passed irretrieva-bly from the scene. This power is a necessaryrequirement for sovereignty. Justice Douglasmisses this point when he argues in New York v.

United States6 6 that state sovereignty must existunless expressly given up and that until explic-itly abandoned, it retains the strength to bufferfederal power.67 Similarly,Justice Rehnquist, inNational League of Cities v. Usery,6S rests his anal-

64 Although the language and intent of National

League of Cities v. Usery, 426 U.S. 833 (1976) is theclosest comprehension yet.

6' Discretion is the internal orientation of the state.Thus, within constitutional parameters, the state hasthe discretion to determine the rank order and distri-bution of its resources, e.g. whether it will pursue anexpansive highway building program or pursue apolicy of fiscal restraint, or indeed, whether it willhave any policies at all. Moreover, discretion reachesthe internal structure of the state, as the state is thedeterminer of how it will organize itself.

66 326 U.S. 572 (1946).67 Id. at 594-96.68 426 U.S. 833 (1976).

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ysis on "states as states" and fails to recognizethat what he means is not state sovereignty atall. Sovereignty in substance has been disem-boweled by the loss of power. The response ofthe South to the order for school desegregationand the reaction of the nation to the South, inconsequence, clearly demonstrate that statesovereignty, if it exists at all, is only a hollowshell once power has passed. 69

However, the second of the componentswhich comprise state sovereignty -discretion -

has not been destroyed. Nothing in the passingof power (except, perhaps, its coercive poten-tial)70 has served to strip the states of theirdiscretion. Power is not necessary to its exer-cise, for discretion is self-sufficient, represent-ing the core of the spirit of the institution; it willdecide in what manner it will act, unless forcedto do otherwise. Clearly, the states will decide inwhat manner they ought to act. This preroga-tive is all that remains from their former sover-eign status. Yet it does remain, and while, likethe prerogatives of the national government, itmust conform to certain constitutional require-ments, it, too, is constitutional in stature andmay act to protect itself, much like the right ofprivacy serves to insulate the prerogatives ofthe individual. 7' The residuary discretion of thestate is the state's right of autonomy.7 2

69 This is the question, or rather, non-question, ofinterposition, the placing of a state's sovereignty be-tween the people of the state and a federal determi-nation. See 1 RACE REL. L. REP. 437-47; Cooper v.Aaron, 358 U.S. 1, 18 (1958); Bush v. Orleans ParishSchool, 364 U.S. 500 (1961) (per curiam). See also,Ableman v. Booth, 62 U.S. (21 How.) 506 (1859); U.S.v. Peters, 9 U.S. (5 Cranch) 115 (1809).

70 For example, the power of the purse, (i.e., con-ditional spending.) See Steward Mach. Co. v. Davis,301 U.S. 548 (1937).

71 See Griswold v. Connecticut, 381 U.S. 479 (1965).72 Cf. Monaco v. Mississippi, 292 U.S. 313, 323

(1934). That the right to autonomy is of constitutionaldimension ought to be without challenge. The statesformed the Constitution. The states and the peopleratified and accepted the Constitution. Its existencewas for the states' protection, not their extermina-tion. The constitutional protections for and concern-ing the States (art. IV); the constitutional prohibi-tions against the states (art. I. § 10); and the natureand responsibilities necessitated in choosing the legis-lative (art. I, § 4 and amend. XVII) and the executive(art. II, § 1) all require that the states retain the abilityto exercise their discretion in order to achieve or notachieve certain ends.

In Dandridge v. Williams, 397 U.S. 471 (1970), anattempt by the state of Maryland to place a maximum

Justice Frankfurter in New York v. UnitedStates73 recognized that:

There are, of course, State activities and state-owned property that partake of uniquenessfrom the point of view of intergovernmentalrelations. These inherently constitute a class bythemselves. 4

These activities and properties and those al-luded to in Chief Justice Stone's concurringopinion75 are but a single facet of the right ofautonomy. Not only are the symbols and seat ofthe state necessary to the autonomy of the state,but the very process of decision-making by thestate is subsumed within the right. This deci-sion-making process is the ability of the state todetermine in what areas and in what manner itwill act to serve its citizenry. This process allowseach state to retain its character, express itsvalues, and yet fulfill its constitutional require-ments. Autonomy gives each state an opportu-nity for a separate personality. While the po-tential for separate personalities is not the goalof the right of autonomy, it is a highly viablemeans of perceiving its existence.

If taken to extreme, the right to autonomycould just as easily destroy the national govern-ment as the national government is currentlyeviscerating the states. 76 Thus, it is a rightwhich must weigh against other rights and pow-ers found in the Constitution and does notprovide the states with an absolute protection.The right of autonomy for the states does offerthem, however, the constitutionally requiredopportunity to preserve themselves.

ceiling on the benefits it distributed through itsAFDC program was upheld by the Supreme Court.Justice Stewart's opinion for the majority character-ized the Maryland action as a state's attempt "to rec-oncile the demands of its needy citizens with the finiteresources available to meet those demands." Id. at472. This ability to make such determinations, freefrom unwarranted external intervention is the heartof the discretion, the autonomy, of the states. Dan-dridge also provides an example of the constitutionallimits of the right to autonomy. For, as the dissentvigorously argues, the manner in which the stateexercised its discretion was a violation of the equalprotection, required by the fourteenth amendment.Id. at 508 (Marshall. J., dissenting).7 326 U.S. 572 (1946).74 Id. at 582.75 Id. at 587-88.76 See South Carolina v. United States, 199 U.S.

437, 454-56 (1905).

III. EMERGENCE OF THE RIGHT OF

AUTONOMY

Taxation Cases

Certainly if all the provisions of our Constitutionwhich limit the power of the Federal govern-ment and reserve other power to the States areto mean anything, they mean at least that theStates have the power to pass laws and amendtheir constitutions without first sending theirofficials hundred of miles away to beg Federalauthorities to approve them.7

7

The taxing power is one which is concur-rently held by the state and national govern-ments. 78 It retains within it the greatest poten-tial of all governmental powers for constructiveand destructive impact.79 In a non-unitary sys-

tem, such as ours, the ability of one govern-ment to tax the corpus of the other represents a

tremendous threat to the balance upon whichthat system must be based.

The traditional judicial response when oneinstitution attempted to tax an aspect of an-other was to disallow the tax as a threat to

sovereign immunity, although nothing explic-itly within the Constitution required this. Thus,states were not allowed to tax any aspect of thefederal government. 8 This denial went so far,at one time, as to bar state taxation of theincome of federal employees living within astate. 1 When the occasion arose, the states werefound to enjoy reciprocal protection. 2 Reci-procity is effective in delimiting the effects of a

concurrent power, so long as the line betweenthe two governments is clear. But as the distinc-tion between nation and state in governmentalfunctions began to disintegrate following theCivil War, it became increasingly more difficult

" South Carolina v. Katzenbach, 383 U.S. 301, 359(1966) (Black, J., dissenting).

7'8 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

425 (1819).79 Id. at 427.8o Id. at 430.

8 Dobbins v. Commissioners of Erie County, 41

U.S. (16 Pet.) 435 (1842).82 Collector v. Day, 78 U.S. (11 Wall.) 113, 124

(1870).The [national government] in its appropriatesphere is supreme; but the States within thelimits of their powers not granted; or, in thelanguage of the tenth amendment, "reserved",are as independent of the general governmentas that government within its sphere is inde-pendent of the states.

to retain a symmetry. The natural result was topermit the national government to tax various

state actions, even if they were conducted

within the legitimate exercise of state power.In South Carolina v. United States ,83 the federal

government attempted to tax a state monopolyof the alcohol trade. This state creation of amonopoly had been previously upheld by thecourt as a legitimate exercise of the state's policepower. 4 At this time, the federal governmenttaxed every dispenser of alcoholic beverages.Indeed, one quarter of all the income of thefederal government in 1901 came from thistax. 5 The Court denied South Carolina immu-nity from federal taxation, finding that such an

activity was not a traditional function of thestate and thus not deserving of the same qualityof protection. In this situation, the Courttreated the state no longer as a state, but as anyother corporation.

What was occurring was an expansion of thefederal taxing power at the cost of state inde-pendence. 6 Thus, even if the state could show

a clearly legitimate interest and power to reacha subject, the federal power could still reach thesame subject and control its behavior. It wasbecoming the nature of the federal power to tax,to reach all activities, even those which the statecould legitimately pursue.

8 7

The watershed on this question and the truebeginning of thoughtful, though muddled,

enunciation of the right to autonomy occurredin the direct lineal descendent of South Carolina

v. United States, New York v. United States."' Theuntoward division of the Court, occasioned bythe seriousness and haziness of the issue, addedboth to a greater expression of views than had

83 199 U.S. 437 (1905).'4 Vance v. W. A. Vandercook Co., No. 1, 170 U.S.

438 (1898).85 SECRETARY OF THE TREASURY, ANNUAL REPORT

7, 21 (1905).86 Indeed, every addition of power to the gen-eral government involves a corresponding dim-inution of the governmental powers of theStates. It is carved out of them.

Ex parte Virginia, 100 U.S. 339, 346 (1879).87 It is no objection to the assertion of the powerto regulate interstate commerce that its exerciseis attended by the same incidents which attendthe exercise of the police power of the states.

United States v. Darby, 312 U.S. 100, 114. See also,New York v. United States, 326 U.S. 572, 582 (1946)(Frankfurter, J.).

88 326 U.S. 572 (1946).

[Vol. 68COMMWENTS

AUTONOMY

previously been aired and to a tendency to ob-scure the nature of the right of autonomy.

In New York v. United States, the state of NewYork was bottling and selling mineral waterobtained from Saratoga Springs, which wasowned and operated by the state. Such saleswere taxed by the federal government. Thestate argued that the federal government oughtto be barred from taxing actions of a state takenin an effort to conserve that state's natural re-sources. The federal government contendedthat the doctrine of South Carolina v. UnitedStates was dispositive and foreclosed the state'sargument. The Court, divided 2-4-2,19 upheldthe federal government.

Justice Frankfurter wrote the "majority"opinion of the Court.90 He felt that South Caro-lina was dispositive. The federal taxing powerwas plenary. However, he openly dislikedthe state-governmental-function/state-govern-ment-as-business distinction, feeling, rather,that the question of limits to the congressionaltaxing power was not within the Court's pur-view, 91 so long as the tax did not discriminateagainst or otherwise unfavorably single out thestate enterprise.

Chief Justice Stone wrote the "plurality"opinion, in which Justices Reed, Murphy, andBurton concurred. While likewise upholdingthe validity of the tax as applied to New York,the Chief Justice was not satisfied that the onlyconstitutionally mandated limit on the federaltaxing power was that it not discriminateagainst the state. He reasoned that there wereactivities and functions which were unique tothe state because of its status as a sovereign andwhich were outside the reach of the federalpower:

If we are to treat as invalid, because discrimina-tory, a tax on State activities and State ownedproperty that partake of uniqueness from thepoint-of-view of intergovernmental relations, itis plain that the invalidity is due wholly to the fact thatit is a State which is being taxed so as to undulyinfringe, in some manner, the performance of its func-tions as a government which the Constitution recog-nizes as sovereign.92 (Emphasis added)

'9 Justice Jackson did not participate.90 Though it was presented as the majority opin-

ion, only one other Justice, Mr. Justice Rutledge,concurred in it and even he wrote a separate opinion.It is more aptly considered a "consensus" opinion.

91 Id. at 581-82.92 Id. at 588.

The sale of mineral water is not this type ofgovernmental function, according to JusticeStone, but he expressed his doubts as to theconstitutionality of federal taxes on "the State'scapitol, its State-house, its public school houses,public parks, or its revenues from taxes orschool lands. '93 The important thing, accord-ing to Justice Stone, was to limit the potentialdeleterious impact of federal taxation on stateprojects, thus protecting state sovereignty with-out imposing too great a cost upon the federalgovernment in lost revenue.94

In dissent, Justice Douglas, joined by JusticeBlack, also rejected the view that the federal taxpower is plenary when not discriminatory. ForJustice Douglas, South Carolina was wrongly de-cided. Rather, the appropriate test should fo-cus on whether the activity is within the state'spower to initiate or operate. If so, it should bebeyond the reach of the federal tax power. Themere fact that a state's activity was one in whichit attempted to make a profit or was in a fieldformally reserved for private enterprise oughtnot to have any bearing upon the status of thestate's tax immunity. Indeed, Justice Douglasviewed the immunity as a crucial factor in thecontinued maintenance of the federal system:"The Constitution is a compact between sover-eigns." 95 Consequently, to let one sovereign taxthe other's activities and projects is to relegatethe states to a servile status vis-a-vis the nationalgovernment.

They [the states) become subject to interferenceand control both in the functions which they

931 Id. at 587-88.14 Chief Justice Stone, quoting from Metcalf &

Eddy v. Mitchell, 269 U.S. 514, 523-24 (1926).But neither government may destroy the othernor curtail in any substantial manner the exer-cise of its powers. Hence the limitation upon thetaxing power of each, so far as it affects theother, must receive a practical constructionwhich permits both to function with the mini-mum of interference each with the other; andthat limitation cannot be so varied or extendedas seriously to impair either the taxing power ofthe government imposing the tax . .. or theappropriate exercise of the functions of the gov-ernment affected by it.

326 U.S. at 589-90. See also, South Carolina v. UnitedStates, 199 U.S. 437, 452 (1905).

[T]he two governments, National and state, areeach to exercise their power so as not to inter-fere with the free and full exercise by the otherof its powers.91326 U.S. at 592.

COMMENTS

exercise and the methods they employ. Theymust pay the federal government for the privi-lege of exercising the powers of sovereigntyguaranteed them by the Constitution.96

Thus, in New York v. United States, a majorityof the Supreme Court97 found, so far as thetaxing power of the federal government wasconcerned, that the status of the states as sover-eigns, implicit and interwoven within the text ofthe Constitution, did operate to make a sub-stantive limit to that power. This majority splitover both the substance of that power, in gen-eral, and as applied to facts of the case. Beyondthe broad rule suggested by Justice Douglasand the off-hand-examples of Chief JusticeStone, little was said to explain the nature orsource of this implied right. Thus, wrapped inshadowy ambiguities and acknowledged only byits absence, the right of autonomy first ap-peared.

The Commerce Power

Eighteen years later, in Maryland v. Wirtz,"s

an attempt was made to utilize the rough con-cepts of state sovereignty outlined in New Yorkto establish a buffer against the otherwise plen-ary power of the federal government concern-ing interstate commerce. Congress hadamended the Fair Labor Standards Act, con-cerning minimum wages and overtime benefits,so that its provisions would reach any employeeat a state school or hospital, who was in a non-executive, administrative or professional posi-tion. On its face, the Act served only to providemandatory guidelines for employee treatment,yet it actually went far in directing the distribu-tion of limited state funds.9 9 This time, a six-man majority found there was no implied rightprotecting the states, at least insofar as the in-terstate commerce power was concerned.' 00

Justice Harlan, writing for the majority,found that United States v. Darby'°' laid out thedimensions of the commerce power. Once a

96 Id.11 This "majority" consisted of Chief Justice Stone

and the three justices concurring in his opinion andthe dissenters, Justice Black and Justice Douglas.

98 392 U.S. 183 (1968)." Compare with Dandridge v. Williams, 397 U.S. 471

(1970).100 The Court divided 6-2, with Justices Douglas

and Stewart dissenting. Justice Marshall did not par-ticipate.

101 312 U.S. 100 (1941).

company or institution fell reasonably withinthe definition put forth within the act, it wasconstitutionally subject to the regulation of theCongress. That the company or institution wasowned by, operated by, or was an integratedcomponent of a state government was irrele-vant to the exertion of federal control andpower:

If a state is engaging in economic activities thatare validly regulated by the Federal Governmentwhen engaged in by private persons, the Statetoo may be forced to conform its activities tofederal regulation .102

Justice Harlan emphasized the plenary as-pects of the commerce power and the rational-ity of its connection to the extension of the Actso as to reach the states, and rejected any doc-trine forbidding or limiting federal interfer-ence with the actions and powers of thestates .

03

Justice Douglas again took up the side of thestates. While Justice Harlan's opinion did noteven make mention of New York,'1 4 the reason-

,02 392 U.S. at 197; alsoIt [The Supreme Court] will not carve up thecommerce power to protect enterprises indistin-guishable in their effect on commerce from pri-vate businesses, simply because those enterpriseshappen to be run by the States for the benefit oftheir citizens.

Id. at 198-99."0 There is no general doctrine implied in theFederal Constitution that the two governments,national and state, are each to exercise its pow-ers so as not to interfere with the free and fullexercise of the powers of the other.

Id. at 195.For precedent Justice Harlan relied principally

upon Case v. Bowles, 327 U.S. 92 (1946). In Case, theprice of timber had been given a ceiling by the admin-istrator under the Emergency Price Control Act dur-ing World War II to control product costs. The stateof Washington had certain timberlands set aside toprovide income for its schools. It sold at auction someof these lands for a price greater than that allowedunder the Act. The Supreme Court upheld the ad-ministrator and enjoined the sale. The Act had beenpassed pursuant to the Congress' war power. Its ap-proval is illustrative of the Court's bending to the willof the national government in times of emergency.See also, Korematsu v. United States, 323 U.S. 214(1944). Being concerned with the war power, it can-not be dispositive on the reach of the commercepower vis-a-vis the state's right to autonomy.

104 The majority did, however, find the time toquibble over Justice Douglas's interpretation of Wick-ard v. Filburn, 317 U.S. 111 (1942). Justice Douglas'ssyllogism was

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ing of the "majority" in that case was JusticeDouglas' keystone. He found that the threat ofextinction to state governments through unbri-dled use of the commerce power had implica-tion for the states every bit as lethal as the taxpower had had in New York.

Federal Oversight

Abstention by federal courts is a judicial con-struct first given clear form in Justice Frank-furter's opinion in Railroad Comm. of Texas v.Pullman'0 5 in 1941. Abstention occurs when afederal court refrains from acting on a questionover which it has jurisdiction but which"touches upon a sensitive area of social policyupon which the federal courts ought not toenter unless no alternative to adjudication isopen."'0 6 Thus, federal courts of equity wererequired not to act in certain cases pendingstate determinations of policy. Clearly, this doc-trine contains a good deal of deference to thestate's ability to determine policy. However, thefederal court had only to stay proceedingspending the state determination; afterwardsthe action to review in federal court remainedalive. This was equitable abstention.

The exercise of the commerce power may alsodestroy state sovereignty. All activities affectingcommerce, even in the minutest degree, Wick-ard, supra, may be regulated and controlled byCongress....

Yet state government itself is an "enterprise"with a very substantial effect on interstate com-merce....

If all this can be done, then the NationalGovernment could devour the essentials of statesovereignty....

392 U.S. at 204-05. The majority responded that:Neither here nor in Wickard has the Court de-clared that Congress may use a relatively trivialimpact on commerce as an excuse for broadgeneral regulation of state or private activities.The Court said only that where a general regula-tory statute bears a substantial relation to com-merce, the de minimis character of individualinstances arising under that statute are of noconsequence.

392 U.S. at 197 n. 27. This exchange highlights JusticeHarlan's and the majority's lack of understanding asto the issue involved. Even if Wickard only allows anextension of federal power to trifling situations ratherthan defeat a general regulation, Wickard is only anaftermath situation. It is the allowance of the generalregulation in all circumstances, such as the instantcase, that is the heart of the controversy. Wickardcleans up the pieces. Maryland shatters the porcelain.

10 312 U.S. 496 (1941).106 Id. at 498.

This principle expanded somewhat in theyears that followed, so that it reached not onlyconstitutional questions before state attempts atlimitation and construction, but also "unseemlyconflict between the sovereignties" and actionswhich might unduly hinder state functions. 0 7

This expansion has not continued unchecked inthe recent past, however, as the current cases fitless and less easily into the flow of the past.With the addition of Chief Justice Burger in1969 and Justice Blackmun to the SupremeCourt in 1970,108 the Court has moved withrapidity', for an institution so akin to glacialflow, to limit the encroachment of the nationalgovernment upon the states, and, if possible,reverse it.

The new Court acted first in the area whichwas least dangerous or controversial, the judi-cial construct of abstention. In doing so, it wasable to reaffirm the integrity of the statejudicialforums, avoid any direct Constitutional ques-tions as to the status of the states, and restore,somewhat, the state power to decide questionsof criminal law. Thus, in its second term, theBurger court established the principle of feder-alism abstention.

In Younger v. Harris,'0 9 the defendant hadbeen indicted for violation of the state CriminalSyndicalism Act. Before the charge went totrial, Harris sued in federal court to have theact stricken down as unconstitutional. Thethree-judge court struck down the act as vagueand overbroad. The Supreme Court reversed,eight to one, without reaching the merits. TheCourt found that the history of the country wasone based on a belief in the federal system.Such a belief specifically excluded federal inter-ference with state criminal prosecutions exceptas the state government showed itself to beincapable oflacting as it was supposed to. Toreinforce the belief that a state criminal pro-ceeding was a just and fitting forum, the Su-preme Court limited federal court interferencein a state criminal prosecution to cases involvingunjustified state harassment or irreparable in-jury. The heart of this policy was the state-national relationship of federalism, character-ized as:

10 7 See generally, Martin v. Creasy, 360 U.S. 219

(1959).108 Chief Justice Burger took the oath on June 23,

1969 and Justice Blackmun took the oath on June 9,1970.

109 401 U.S. 37 (1971).

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COMMENTS

a system in which there is sensitivity to the legiti-mate interests of both State and National Gov-ernments, and in which the National Govern-ment, anxious though it may be to vindicate andprotect federal rights and federal interests, al-ways endeavors to do so in ways that will notunduly interfere with the legitimate activities ofthe states.110

Even Justice Douglas, the only dissenter,does not dispute the nature of the federal rela-tionship. However, particularly in light of hisfierce advancement of the meaning of the firstamendment safeguards,"' he continued to dis-trust the states' ability and desire to exerciseand provide those safeguards for their citi-zens.

1 2

Federalism abstention was, initially, an in-strument primarily for the preservation of theintegrity of the state's criminal judicial system.Two years later, the reach of this federalismwas extended to the executive and the legisla-tive branches. Pennsylvania had passed a lawallowing private, sectarian schools to be reim-bursed for certain secular educational functionsperformed by them. This statute was struckdown by the Supreme Court as being violativeof the first amendment in Lemon v. Kurtzman(I).113 Following that decision, the state reim-bursed those schools for the secular functionsthey had performed prior to the SupremeCourt's decision. The plaintiffs attacked thisaction as being violative of the first amend-ment. The Supreme Court upheld the state

action in Lemon v. Kurtzman (II).114Among the plaintiffs attacks was that there

could be no justified reliance upon the statuteuntil validated by the courts. This argumentwas peremptorily rejected. A sovereign govern-ment must act as if it is sovereign." '5 Indeed, tofind otherwise would require federal approval

" Id. at 44.... See Brandenburg v. Ohio, 395 U.S. 444, 450

(1969). (Douglas, J., concurring)112 In times of repression, when interests withpowerful spokesmen generate symbolic po-groms against nonconformists, the federal judi-ciary, charged by Congress with special vigilancefor protection of civil rights, has special respon-sibilities to prevent an erosion of the individual'sconstitutional rights.

401 U.S. at 58."3 403 U.S. 602 (1971).114 Lemon v. Kurtzman, 411 U.S. 192 (1973).115 "[G]overnments must act if they are to fulfill

their high responsibilities." 411 U.S. at 207.

for almost every action of state governmentbefore it could be effectuated. To an extent,this merely is a rephrasing of the presumptionof contsitutionality which attaches to all chal-lenged state laws and actions. But the Court wasextending the concepts of federalism and stateautonomy from mere judicial abstention incriminal matters. The record of the SupremeCourt in the 1970's is one of a continuing ex-pansion of the recognition of federalism and itssubstantive concerns.

The ability of the federal courts to safeguardfederal constitutional rights as against the stateswas limited severely again, when the SupremeCourt decided that habeas corpus review by thefederal courts did not include questions offourth amendment search and seizure." 6 Therationale for this decision was a balancing testof competing interests. While the case seems tobe primarily an exposition on the weaknesses ofthe exclusionary rule, the Court did not ulti-mately deal with that issue' 7 and found that thefourth amendment interests were outweighedby the harm habeas corpus review caused thestates' criminal justice system."" The result ispremised on the ability and willingness of thestate to provide a full and fair hearing for thedefendant. Since the provisions of the fourthamendment are constitutional in nature, theycan only be outweighed by interests which areconstitutional in quality. The counter-balance,in this case, is the integrity of the state judicialsystem. The federalism concerns first articu-lated in Younger have now attained constitu-tional dimensions.

The question might be raised as to how theseabstention and habeas corpus cases relate to astate's right to autonomy. A state's right to au-tonomy is no more plenary than any federalpower, as each retains substantive limits: dueprocess or equal protection, or an affirmativeconstitutional prohibition, express or implied,to name but a few. The integrity of the state'sadministrative apparatus, the ways and meansthat it creates, discharges, and upholds its laws,are critical to its operation as a sovereign entity.Any argument that such operations could becompletely free of federal oversight disap-peared with the passage of the Civil WarAmendments. While those amendments did

116 Stone v. Powell, 427 U.S. 465 (1976).

"7 Id. at 482, n. 17.

"8 Id. at 491.

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not truncate the states' power, they did formbuffers and guidelines for its use. The balancebetween the power of the federal governmentto enforce those amendments within the states'operations and the ability of the states to viewthe guidelines without federal interference hasshifted markedly. In part, this has been theresult of the loss of state hostility to many of theprocedures and processes made mandatory.But the substantive shift has been toward agreater belief in the ability of the state to governitself and the superfluous nature of federaloversight."'

While these may appear trivial as to the ques-tion of an implied constitutional right, thesecases are symptomatic of a growing realizationon the part of the Supreme Court that the statedoes have a substantive right of autonomy,embedded within the fabric of the Constitution.It is a power which not only constitutes a mate-rial bumper to the exercise of federal power butalso may act to channel the process of the im-plementation of individual rights, though notthe substance of those rights. 20

National League of Cities v. Usery

The most dramatic step toward recognitionof the state right of autonomy by the SupremeCourt has been the striking down of a federalstatute based upon the exercise of the com-merce power for its undue interference with"the States qua states". It is primarily a resusci-tation of the plurality position by Chief JusticeStone in New York v. United States,'2 ' but wherethat decision recognized the right but upheldthe law, this one both recognizes the right andprovides it with some bite.

The federal Fair Labor Standards Act, whoseapplication to certain state employees had beenupheld by the Court in Maryland v. Wirtz' 2 was

9 Id. at 493.120 It is important to recognize that the right of

autonomy for the state cannot limit the requirementsof the Civil War Amendments. Those amendmentsconcern the rights of individual people. Autonomyconcerns the relationship of the state and nationalgovernment. The amendments were passed to pro-vide substantive limits on the states. The federal gov-ernment may become involved by determining themeans of ensuring those rights, that is where theright of autonomy may act. It may affect the means,but never the substance of the individual rights.

121 326 U.S. 572 (1946).122 392 U.S. 183 (1968). See text accompanying notes

126-32 supra.

amended in 1974 so as to apply to nearly allemployees of the states and their political sub-divisions. Rejecting the authority of Maryland,the Court, relying heavily upon Chief JusticeStone's concurring opinion in New York, foundthat in balancing the federal commerce poweragainst the intrusion by the statute into statefunctions, the federal statute exceeded its per-missible impact.23

Justice Rehnquist, writing for the Court inNational League of Cities v. Usery 24 found thatthe statute imposed substantial costs upon thestate and impinged upon the ability of the stateto determine the manner in which its money isspent. 25 Clearly, these are interrelated areas.Where an institution has only a limited income,money which is required in one field will re-quire diminution of expenditures in anotherfield. The actual question is one of disruptive-ness to the internal operations of the state, thestate's right to be autonomous.

While this opinion could have been the plat-form for the airing of the full considerationsmaking up the right to autonomy, it was not.Indeed, the legal and constitutional analysiswas somewhat weak overall. The Court firstacknowledged the plenary nature of the inter-state commerce power with the obligatory quo-tations from Gibbons v. Ogden126 and Heart ofAtlanta Motel v. United States. 2 7 Then limitsupon that power by the provisions of the Bill ofRights are cited. Finally, Justice Rehnquistmore or less established state sovereignty as anadmixture of the tenth amendment and thelanguage of Chief Justice Stone's opinion inNew York.128 These components, based uponthe indestructibility of the states, fashioned, inthe Court's judgment, the constitutional natureof states as states. The federal power over com-merce was found to be sufficiently outweighed

3 National League of Cities v. Usery, 426 U.S. 833(1976). Justice Rehnquist does not characterize hisopinion as a balancing test. Rather, he finds the rightsof the States entrenched and the federal commercepower too little to move them. Id. at 852. How-ever, the decision was 5-4, and Justice Blackmun,whilejoining in the opinion of the Court, in a concur-ring opinion, made explicit his belief that this was abalance being drawn.1- 426 U.S. 833 (1976).12 Id. at 848.

12622 U.S. (9 Wheat.) 1 (1824).127 379 U.S. 241, 262 (1964).128 426 U.S. at 842-43, quoting Fry v. United States,

421 U.S. 542 (1975).

1977]

by the burdensome costs and the impact uponstate priority-setting. Consequently, the act wasstricken down. As a post-script, the contradic-tory holding of Maryland v. Wirtz129 was over-ruled and the contrary dictum in California v.United States'30 disapproved.

The heart of the decision is, simply put, that"States as States stand on a quite different foot-ing than an individual or a corporation whenchallenging the exercise of Congress' power toregulate commerce.''M The source of that dif-ference is neither explained nor clarified by theCourt, however, and, it is this failure to givefuller body to the right of autonomy whichprovides the dissent with its plentiful ammuni-tion.

In dissent, Justice Brennan reaffirms theplenary nature of the federal commerce power.First, he establishes the supremacy of the na-tional government. 32 New York is distinguishedon the ground of tax immunity of the state, thetax power being held concurrently, while com-merce is a plenary power of the national gov-ernment. 133 It is the Court's failure to fullyexplain why states are entitled to be treateddifferently than individuals, for surely thetenth amendment language includes both thestates and the people, that must be remedied inorder to make clear the substantive nature ofthe state's right. Justice Brennan's analogy tothe discredited logic of Carter v. Carter CoalCo.' 34 and United States v. Butler 13 misses thenature of the state's right involved here as com-pared to the reactionary proclivities exercisedin these earlier cases. This difference is thequality of the areas protected by the right ofautonomy, a right which Justice Rehnquist doesnot however, successfully describe.

National League of Cities marks the latest stage

129 392 U.S. 183 (1968).'30 297 U.S. 175 (1936). In California, federal safety

requirements were found to apply to a state railroad,regardless of the reasons for state ownership.131 426 U.S. at 854.132 "[It] is not a controversy between equals"when the federal government "is asserting itssovereign power to regulate commerce....[T]he interests of the nation are more importantthan those of any State."

Id., quoting Sanitary District v. United States, 266U.S. 405, 425-426 (1925).'33 Yet, Justice Brennan fails to recognize that the

source of the state's tax immunity is the autonomy ofthe state in the first place. See 426 U.S. at 843 n. 14.

134 298 U.S. 238 (1936).13' 297 U.S. 1 (1936).

in the Burger Court's progress towards a sub-stantive understanding of the position of thestates in the post-Civil War constitutionalframework. However, as the dissenting opinionshows, it is not the bottom line which is notunderstood, but the pathway which leads there.The Supreme Court has thus far been unablecoherently to formulate and thereby recognizethe right of autonomy. This inability is to agreat extent undoubtedly reflective of the na-tion as a whole, and shows the declining impor-tance, power, and prestige of the states. 36 Inpassively viewing the passing of the states, theCourt has removed itself from the documentwhich it has a duty to faithfully expound.

IV. RIGHT TO AUTONOMY

In summary, then, the Supreme Court inNational League of Cities and Stone v. Powell hasbegun to recognize substantive limitations tothe exercise of federal power. As of the mo-ment, though, it has been unable to overcomethe rhetoric and the tunnel vision of the pastand continues to deal with federal-state rela-tions based upon the tenth amendment struc-ture. This has caused the Court to have tostruggle unnecessarily to reach the proper con-stitutional conclusion in some cases and, occa-sionally, to miss it altogether.

The right to autonomy is a narrow concept.Since it consists of only those prerogatives nec-essarily retained by the state in order to pre-serve the federal nature of the constitutionalsystem, the potential exists for a good deal ofdisagreement as to where the flash point is.Indeed, the strongest proponents of the rightdisagree on a very important point of potentialapplication: the ability of the federal govern-ment to ensure rights guaranteed to individualsby the Constitution through the Bill of Rights.This ability can be characterized as its oversightpower. It is qualitatively distinct in origin, exer-cise, and goals from the plenary federal pow-ers. 3

1 As a result of these differences, Justice136See J. BRYCE, 1 THE AMERICAN COMMON-

WEALTH 562 (1908); Laski, The Obsolescence of Federal-ism, 98 NEW REPUBLIC 367 (1939). See also note 62supra.

137 The origin of the oversight power lies princi-pally in the language of the Civil War Amendmentswhich are addressed primarily to the states. Its exer-cise is as an intervenor between the state and theindividual, piercing the autonomy of the state. Thegoal of the oversight power is to protect the individ-ual from unconstitutional treatment from the states.

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Douglas found that the state's right to auton-omy could not apply to limit the power of thenational government. 138 Conversely, JusticeRehnquist and a majority of the current Courthave applied the right to autonomy in just sucha manner, to the detriment of the federalpower.

The right to autonomy concerns the federalpersonality of the system. It deals only with thedirect federal-state relationships. Thus, wherethe federal government interferes with legiti-mate state autonomous interests, the state isconstitutionally protected. Yet such interests donot reach to those rights, privileges, and im-munities guaranteed to individuals by the Con-stitution. These individual interests exist re-gardless of the federal structure of the sys-tem. 39

The autonomous interests of the state arethreefold: internal control, internal ordering,and internal integrity. Internal control pertainsto the ability of the state to rank order deci-sional priorities, to be able to decide what getsdone first. Internal ordering is the ability of thestate to determine the structure and nature ofits governmental organizations, to be able todetermine what agencies exist and in whatsense. Internal integrity describes the ability of

"' See note 112 supra.139 That is, the various constitutional protections

guaranteed the general citizenry would be applicableif only the states existed or if only the national gov-ernment existed. The federal system is superfluous totheir vitality and value.

the state to protect its interests. These are theminimum necessary for a state to retain its indi-vidual character in a world without power. It isthe right to autonomy.

V. CONCLUSION

The government in the United States, as es-tablished in the Constitution, is a federal sys-tem. A federal system requires two tiers of gov-ernment, non-wholly integrated and semi-inde-pendent. Originally, the states were sovereignentities. The course of constitutional interpre-tation has succeeded in all but depriving themof separate power, as the delegated powers ofthe national government have become, effec-tively, all powers. There is some quantum be-low which any governmental system becomesnon-federal in nature, regardless of label. Theneed to remain above that quantum is a consti-tutional requirement, as the federal nature ofthe government is constitutional in quality.That quantum is supplied by the right of thestates to be autonomous.

The past one hundred years has been achronicle of the continuing eclipse of the statesin the constitutional framework, often throughthe myopia of good intentions of the SupremeCourt. This eclipse has been the result of theinability of the states to conform to constitu-tional requirements, the increasing power andimport of the national government, and thedistaste of states' rights which has lingered fromthe Civil War even until today. The SupremeCourt is only slowly recognizing both the needand the nature of the right of autonomy.

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