His book, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, will be available January 1, 2007.
I asked Josh to put the book to the "page 69 test"; here is his response:
Page 69 of Democracy's Privileged Few falls at the beginning of my chapter on the free speech privilege in the British parliament. The page is almost entirely devoted to a discussion of the Haxey case in 1397. The facts of the case, as I lay them out, are these:Many thanks to Josh for the input.
In 1397, a bill was introduced in the House of Commons condemning the extravagant expenditures of the royal household. Richard demanded to know who had introduced the bill, and Thomas Haxey’s name was given up. The Lords declared Haxey a traitor and condemned him to death, but the sentence was not carried out when the archbishop claimed Haxey as a clerk. In 1399, the new King Henry IV annulled the act condemning Haxey and granted Haxey’s petition for a reversal of the judgment against him on the grounds that it was contrary to the liberties of the Commons. In the same year, the House of Commons itself also petitioned the King for an annulment of the judgment, an admission that the judgment had been erroneous and contrary to normal parliamentary procedure, and a restoration of Haxey’s estate, which had been forfeited upon the Lords’ judgment in 1397. Henry granted that petition as well. In 1401, the King promised never to pay attention to unauthorized accounts of proceedings in Parliament again. [footnotes omitted]
I argue that the Commons' strenuous complaint, coupled with Henry's rather quick decision to yield, suggests that the privilege existed even before the end of the fourteenth century.
The eminent historian of parliament J.E. Neale suggested that the Haxey case was not, in fact, an example of the free speech privilege because there was no evidence that Haxey himself was a member of Parliament. Neale--whose period was the sixteenth century--claimed the privilege was invented by Elizabethan parliaments. However, the fact that Henry promised to respect the House's privacy in the future suggests that, regardless of Haxey's status, the House regarded interference in its internal affairs as a violation of its privileges. I therefore insist that the Haxey case is the earliest known case of the free speech privilege.
But the House's insistence on privacy does raise a point I return to throughout the book. In its formative years, while it was still a relatively weak political player, the House of Commons treated privacy as a key component of its privilege. Privacy helped ensure that its debates and proceedings were not subject to attack from stronger actors, especially the Crown. As the House strengthened, privacy became less important, and privilege took on other roles more commensurate with protecting the House's role as an increasingly democratic body. This trend, I argue, was continued in the American Constitution.
The Haxey case also points to why I think my book might be especially timely. One of the central functions of privilege has always been the empowerment of the legislative houses vis-a-vis the executive. In a time in which many of us are worried about overreaching executive power, a reinvigoration of legislative privilege may help to check the executive.
In some sense, it would be tough for any page to be representative of the book as a whole. The book is organized into chapter pairings, with the first chapter discussing a parliamentary privilege and the second chapter discussing the analogous congressional privilege. Page 69 happens to fall in a British chapter--and be one of my earliest case studies, at that.
But the House's insistence on privacy does raise a point I return to throughout the book. In its formative years, while it was still a relatively weak political player, the House of Commons treated privacy as a key component of its privilege. Privacy helped ensure that its debates and proceedings were not subject to attack from stronger actors, especially the Crown. As the House strengthened, privacy became less important, and privilege took on other roles more commensurate with protecting the House's role as an increasingly democratic body. This trend, I argue, was continued in the American Constitution.
The Haxey case also points to why I think my book might be especially timely. One of the central functions of privilege has always been the empowerment of the legislative houses vis-a-vis the executive. In a time in which many of us are worried about overreaching executive power, a reinvigoration of legislative privilege may help to check the executive.
Among the advance praise for Democracy's Privileged Few:
"A very distinguished work. Chafetz is beautifully clear and deals with an interesting problem concerning parliamentary government in Britain and America in a comparative manner. I do not know of any work which covers the ground in a similar way."Earlier this year in The New Republic Josh previewed part of the book's argument and its applicability to the current Congress in "Blame the Court."
-—Vernon Bogdanor, Oxford University
“A thorough and well-researched treatment of an important and neglected topic. Chafetz’s historical overview on legislative privilege deserves to become a well-known point of reference.”
-—Adrian Vermeule, Professor of Law, Harvard Law School
"Josh Chafetz manages to combine scholarly care with an almost journalistic ability to write in an accessible fashion."
-—Nick Barber, Oxford University
"The Republican leadership lost the confidence of voters in part because they were seen to care more about the perks of power than about the duty of representation," Chafetz argued earlier this month in a New York Times Op-Ed essay. "The new Democratic leadership can get off on the right foot by making a serious and sustained effort at self-regulation, even if that means some uncomfortable moments around the caucus table."
Click here for Josh's New York Times review of What's the Matter With Kansas?: How Conservatives Won the Heart of America by Thomas Frank.
Previous "page 69 tests":
Anne Frasier, Pale Immortal
Michael Lewis, The Blind Side
David A. Bell, The First Total War
Brett Ellen Block, The Lightning Rule
Rosanna Hertz, Single by Chance, Mothers by Choice
Jason Starr, Lights Out
Robert Vitalis, America's Kingdom
Stephen Elliott, My Girlfriend Comes To The City And Beats Me Up
Colin McGinn, The Power of Movies
Sean Chercover, Big City, Bad Blood
Sigrid Nunez, The Last of Her Kind
Stanley Fish, How Milton Works
James Longenbach, The Resistance to Poetry
Margaret Lowrie Robertson, Season of Betrayal
Sy Montgomery, The Good Good Pig
Allison Burnett, The House Beautiful
Stephanie Coontz, Marriage, A History
Ed Lynskey, The Dirt-Brown Derby
Cindy Dyson, And She Was
Simon Blackburn, Truth
Brian Freeman, Stripped
Alyson M. Cole, The Cult of True Victimhood
Jeff Biggers, In the Sierra Madre
Jeff Broadwater, George Mason, Forgotten Founder
Alicia Steimberg, Andrea Labinger (trans.), The Rainforest
Michael Grunwald, The Swamp
Darrin McMahon, Happiness: A History
Leo Braudy, From Chivalry to Terrorism
David Nasaw, Andrew Carnegie
Leah Hager Cohen, Train Go Sorry
Chris Grabenstein, Slay Ride
David Helvarg, Blue Frontier
Marina Warner, Phantasmagoria
Bill Crider, A Mammoth Murder
Robert W. Bennett, Taming the Electoral College
Nicholas Stern et al, Stern Review Report
Kerry Emanuel, Divine Wind
Adam Langer, The Washington Story
Michael Scott Moore, Too Much of Nothing
Frank Schaeffer, Baby Jack
Wyn Cooper, Postcards from the Interior
Ivan Goncharov, Oblomov
Maureen Ogle, Ambitious Brew
Cass Sunstein, Infotopia
Paul W. Kahn, Out of Eden
Paul Lewis, Cracking Up
Pagan Kennedy, Confessions of a Memory Eater
David Greenberg, Nixon's Shadow
Duane Swierczynski, The Wheelman
George Levine, Darwin Loves You
John Barlow, Intoxicated
Alicia Steimberg, The Rainforest
Alan Wolfe, Does American Democracy Still Work?
John Dickerson, On Her Trail
Marcus Sakey, The Blade Itself
Randy Boyagoda, Governor of the Northern Province
John Gittings, The Changing Face of China
Rachel Kadish, Tolstoy Lied
Eric Rauchway, Blessed Among Nations
Tim Brookes, Guitar and other books
Ruth Padel, Tigers in Red Weather
William Haywood Henderson, Augusta Locke
Jed Horne, Breach of Faith
Robert Greer, The Fourth Perspective
David Plotz, The Genius Factory
Michael Allen Dymmoch, White Tiger
Patrick Thaddeus Jackson, Civilizing the Enemy
Tom Lutz, Doing Nothing
Libby Fischer Hellmann, A Shot To Die For
Nelson Algren, The Man With the Golden Arm
Bob Harris, Prisoner of Trebekistan
Elaine Flinn, Deadly Collection
Louise Welsh, The Bullet Trick
Gregg Hurwitz, Last Shot
Martha Powers, Death Angel
N.M. Kelby, Whale Season
Mario Acevedo, The Nymphos of Rocky Flats
Dominic Smith, The Mercury Visions of Louis Daguerre
Simon Blackburn, Lust
Linda L. Richards, Calculated Loss
Kevin Guilfoile, Cast of Shadows
Ronlyn Domingue, The Mercy of Thin Air
Shari Caudron, Who Are You People?
Marisha Pessl, Special Topics in Calamity Physics
John Sutherland, How to Read a Novel
Steven Miles, Oath Betrayed
Alan Brown, Audrey Hepburn's Neck
Richard Dawkins, The Ancestor's Tale
--Marshal Zeringue
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