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Monday, May 29, 2006

Barney Frank, Renaissance Scholar

Barney Frank (D-MA), speaking on the floor of the House about the recent FBI search of Representative William Jefferson's office (D-LA), invokes Elizabeth I and James I:
Mr. FRANK of Massachusetts. Madam Speaker, I disagree with the bipartisan House leadership criticism of the FBI's search of a Member's office. I know nothing specifically about the case, except that the uncontroverted public evidence did seem to justify the issuance of a warrant.

What we now have is a Congressional leadership, the Republican part of which has said it is okay for law enforcement to engage in warrantless searches of the average citizen, now objecting when a search, pursuant to a validly issued warrant, is conducted of a Member of Congress.

I understand that the speech and debate clause is in the Constitution. It is there because Queen Elizabeth I and King James I were disrespectful of Parliament. It ought to be, in my judgment, construed narrowly. It should not be in any way interpreted as meaning that we as Members of Congress have legal protections superior to those of the average citizen.

So I think it was a grave error to have criticized the FBI. I think what they did, they ought to be able to do in every case where they can get a warrant from a judge. I think, in particular, for the leadership of this House, which has stood idly by while this administration has ignored the rights of citizens, to then say we have special rights as Members of Congress is wholly inappropriate.
I personally would have recommended naming Charles I as the great abuser of Parliamentary speech, especially given the parallels between Bush II and Charles I, but I do love that Frank reached back to Tudor-Stuart England as the relevant context for understanding "the speech and debate clause."

In other news...while things have been slow here on the blog recently--due to traveling, grading, and revising--I imagine the pace of posting should pick up soon, and I know we'll be posting the winner of our Woodcut Caption Contest very soon.

  • At 5/30/2006 11:35:00 AM, Blogger Hieronimo wrote…

    The clause traces directly back to the 1689 Bill of Rights, which states: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." So I'd agree they're thinking more of Charles I --the arrest of the Five Members, etc.--than Elizabeth and James. But there were "freedom of speech in Parliament" controversies throughout the period, so we could give Barney the benefit of the doubt. Since I like him, I will.

    There's some good history on the clause at FindLaw. Note that Justice Harlan wrote similarly that "Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators." Perhaps Rep. Frank's aides googled the clause just as I did and found this same site?


  • At 5/30/2006 02:14:00 PM, Blogger Simplicius wrote…

    Yes, that's right. And while Charles would make for the more damning comparison, Elizabeth and James both were earlier and enjoy greater name-brand recognition in the U.S.

    In other news of Charles I, Roy Booth has a great post up detailing a significant difference between Bush II and Charles I, namely the great variety of the king's vocabulary (as cited by the OED). I doubt the current president will be similiarly memorialized.


  • At 5/31/2006 10:34:00 AM, Blogger Hieronimo wrote…

    I do love that Frank reached back to Tudor-Stuart England as the relevant context for understanding "the speech and debate clause."

    I've come to think that US high school students could really use more early modern English history--not the very brief potted (and generally wrongheaded) stuff they tend to get about the pilgrims, but good up-to-date history of the entire Stuart period. So many of the constitutional issues go back to the English civil war, its run-up and aftermath. Not that I'm a constitutional "originalist" by any means, but it does help to understand the background to these now-somewhat-ossified phrases in the Constitution. As a substitute for the old year-long "US history/civics" course I had in high school, I'd suggest something like "Anglo-American History, 1603-1865." (I know, I know, when do they get the second half of US history; ah curricular constraints, ah humanity!)

    The great work on this is of course Pocock.


 Scribble some marginalia

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