Contempt and Charles Pinckney

Whether Congress (or, more precisely, each house of Congress) has the power to punish nonmembers is a question not directly addressed by the Constitution. See Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 171 (2017) (“Unlike the congressional houses’ authority to punish their members . . ., their authority to punish nonmembers has no explicit textual basis in the federal Constitution.”); Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 212 (2007) (“The Houses’ power to punish non-Members for contempt rests upon shakier footing than their power to punish Members.”). Like whether a sitting president can be indicted or prosecuted, the existence (and scope) of the congressional contempt power was understood to be an open question from the earliest days of the Republic. But while the Supreme Court has never had occasion to address the former question, it has seemingly resolved the latter, having repeatedly upheld the exercise of the contempt power against nonmembers.

I say “seemingly” because, as we shall see, there is reason to believe the executive branch would relitigate this fundamental issue should the necessity arise. Therefore, in today’s post I will lay out the background of the original debate about the contempt power through the story of Charles Pinckney, who was (among other things) a delegate from South Carolina to the Philadelphia Convention. I do so not only because it is an interesting and untold (or at least undertold) story, but because it may very well play a significant role in any future litigation over the validity of the contempt power. For a foretaste of this argument, see Professor Michael McConnell’s claim in a recent Fox News interview that the Convention “voted down” Pinckney’s proposal to give Congress the contempt power. (This claim is not exactly accurate, as the Convention did not actually take a vote on the proposal, but it is close enough for government work.)

British and Colonial Experience

During the long struggle between Parliament and the crown, legislative privilege was a key tool for establishing first the independence and ultimately the supremacy of Parliament. As William Blackstone wrote in the mid-18^th century, parliamentary privileges were “very large and indefinite, which has occasioned an observation, that the principal privilege of parliament consisted in this, that its privileges were not certainly known to any but the parliament itself.” The indefinite and expansive nature of privilege was necessary, Blackstone explained, to protect Parliament against oppression by the crown. If “all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it [would be] easy for the executive power to devise some new case, not within the line of privilege, and under pretense thereof to harass any refractory member and violate the freedom of parliament.”

Blackstone’s understanding of privilege reflected particular historical circumstances, which had already begun to shift significantly by the time he wrote. The Glorious Revolution in the late 17^th century and its aftermath gave Parliament direct means of controlling the executive power and therefore made parliamentary privilege increasingly less important as either an offensive or defensive weapon against the crown. See Chafetz, Congress’s Constitution at 167. As a consequence, Blackstone’s concept of parliamentary privilege as an unlimited power of which Parliament was the sole judge gave way to a more circumscribed version which is subject to judicially defined and enforced limits. See Chafetz, Democracy’s Privileged Few at 4-8.

In colonial America, legislative privilege also played an important role in establishing the authority of colonial assemblies and allowing them to push back against perceived encroachments by outside forces, particularly the executive authority represented by royal governors and subordinate crown officials. This too was a product of particular historical circumstances, which lagged somewhat developments in England. Thus, Professor Chafetz notes that “while the emergence of new and stronger methods of ministerial accountability meant that the eighteenth-century metropolitan Parliament had less need to rely on contempt and breach of privilege in order to keep the Crown in line, colonial legislatures had a relationship with the Crown that more closely mirrored that of the seventeenth-century Parliament.” Chafetz, Congress’s Constitution at 167. Thus, “in the struggle between executive and legislative authority, contempt and breach of privilege remained valuable tools for the [colonial] legislatures.”Id.

It is worth noting here that in their earliest periods colonial assemblies acted as judicial bodies, meting out a wide range of punishments for wrongdoing by the citizenry (in many cases because they were the only government authority capable of doing so). See Mary Patterson Clarke, Parliamentary Privilege in the American Colonies 14-60 (1943). Thus, it may be argued that the willingness and ability of colonial legislatures to punish nonmembers, like that of Parliament itself, reflects these judicial origins. See id.at 3 (“Some phases of privilege, especially the practical enforcement of it by fines, imprisonment, and other punishment, suggest a judicial origin, and were doubtless influenced by traditions of the medieval High Court of Parliament.”).

We have neither the time nor space here to recount the historical development of legislative privilege in any detail. For our purposes, it must suffice to briefly consider the example of one jurisdiction of particular relevance to our story.

South Carolina

Not surprisingly, the colonial assemblies differed in how broadly they construed their privileges and the lengths they would go to protect and enforce them. In this regard the South Carolina Commons House of Assembly stands out for its development into “an imperious political body that jealously guarded its immense authority.” As early as 1701, this house upheld the freedom of speech of its members in opposition to the governor. Clarke, Parliamentary Privilege at 94. It was vigilant against perceived insults or other speech it did not care for, and like some other colonial assemblies “could be despotic on occasion” in punishing such speech. Id. at 127.  Its reaction to perceived slights could verge on the comic, as in 1734 when members were offended at inferior seating arrangements given to them at a dinner party thrown by the governor; they withdrew and the house passed a resolution refusing to attend future dinners unless better accommodations were offered. Id. at 226.

Like other colonial assemblies, the South Carolina house built its claims to increased authority upon the political/legal theory that its constituents were entitled to the traditional rights of Englishmen, including the right of participation in the legislative power, and that “the [colonial] lower houses were equivalents of the House of Commons and must perforce in their limited spheres be entitled to all the privileges possessed by that body in Great Britain.” Jack P. Greene, The Role of the Lower Houses of Assembly in Eighteenth-Century Politics, 4 J. Southern Hist. 451, 465-66 (1961); see also Frederick W. Whitridge, Legislative Inquests, 1 Pol. Sci. Q. 84, 91 (1886) (“The entire American colonial history is filled with instances of the assertion by the colonial legislatures of the possession by them of all of the rights of Parliament.”). This argument played a key role in the house’s largely successful effort to wrest control of revenue and spending matters from the royal governor and council (the latter being an appointed body that advised the governor, acted as a court of appeals, and served as the upper house of the legislature). See id. at 463-65.

In 1769, however, the house’s asserted right to spend money without the approval of the governor and the council came into conflict with royal authorities in London when the house appropriated money for the defense of John Wilkes, who was not popular with the British political establishment.  The British government reacted by instructing the South Carolina governor to withhold royal assent from any future revenue bills unless the money was to be used exclusively for local matters. Chafetz, Congress’s Constitution at 53. This in turn enraged the house, which in 1771 held “two colonial treasurers in contempt and ordered them jailed when they refused (on the orders of the governor and council) to disburse funds that the House had appropriated on its sole authority.” Id. at 168. The escalating conflict consumed South Carolina politics for the period leading up to the American Revolution. Id. at 53-54.

As its reaction to the Wilkes fund controversy shows, the South Carolina house was not shy about exercising its power to punish outsiders, including government officials acting under the purported authority of the crown. As Professor Chafetz explains, this “particularly feisty” colonial assembly “arrested the provost marshal in 1726 for ignoring an order of the House, the chief justice in 1728 for refusing to appear before the House, the council clerk for insolence in 1729, and the surveyor general and his deputy in 1733 for contradicting its orders.” Chafetz, Congress’s Constitution at 168.

Of particular prominence was the 1733 case, which began when the house sought to arrest Thomas Cooper, a member-elect whom it suspected of engaging in irregular real estate transactions. Cooper’s lawyer (Graeme) then secured from Robert Wright, the chief justice, a writ of habeas corpus for Cooper’s release. The house responded by arresting Graeme, and when another lawyer (Vaughan) obtained a habeas writ for Graeme, it ordered Vaughan arrested too. See Clarke, Parliamentary Privilege at 248-49.

This went on for a while (the South Carolina house at one point had seven men under arrest), until the house turned its attention to the source of its trouble. Dr. Clarke writes that after chief justice Wright had issued a third habeas writ, “the resentment of the house burned hot against him; but any attempt to deal with him introduced a new element into the problem” because “[t]he council also claimed parliamentary privilege, and the chief justice, being one of its members, was under its protection.” Id. at 249-50. Had the council supported Wright’s actions, a “serious clash” might have resulted. Id. at 250.

The council, however, considered the matter and concluded that Wright was the one who had violated parliamentary privilege. It then adopted what Clarke terms a “remarkable set of resolutions,” which she summarizes as follows:

The crown allows to the Commons House of Assembly the same privileges as to the House of Commons in England. The house has a right to commit persons for a breach of privilege and notorious grievance, and has already practiced and enjoyed that right; and in the case of contempt or breach of privilege against any inferior court, and much more against parliament, no writ of habeas corpus ought to be granted.

Clarke, Parliamentary Privilege at 250-51.

Clarke notes that “[a] more complete vindication of the assembly at the hands of the recognized exponents of prerogative it would be difficult to imagine.” Id. at 251. It is important to note, however, that the council did not view the issue as presenting a conflict with the royal prerogative; it was vindicating after all the privileges the crown had “allowed” to the South Carolina house.

As a result, all of the individuals imprisoned had to humbly petition for release, be reprimanded at the bar of the house and pay fees associated with the expense of their imprisonment. Clarke, Parliamentary Privilege at 251. Two of these men (Graeme and Vaughan) subsequently tried to relitigate the legality of their arrests by bringing suit against the speaker of the house for false imprisonment. In this action the speaker was represented by a prominent South Carolina attorney by the name of Charles Pinckney. Id. at 252 n.13.

Charles Pinckney

 Not, to be sure, the Charles Pinckney who is the protagonist of our story. That Charles Pinckney was not born until 1757 and was the son of Colonel Charles Pinckney, the nephew of the Charles Pinckney who represented the speaker in the aforementioned lawsuit. Like his uncle, Colonel Pinckney was a prominent attorney who served in the South Carolina legislature. Colonel Pinckney’s cousins (the sons of the older Charles Pinckney) included Charles Cotesworth Pinckney and Thomas Pinckney, both of whom would become important Federalist political figures. As Professor Currie has observed, “[t]here were a lot of Pinckneys” in South Carolina. David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 281 (1997).

Our Charles Pinckney grew up in a turbulent political environment in South Carolina (the Wilkes fund controversy began when he was about 12). In the runup to the Revolutionary War and its early years, he studied law, became a member of the bar and was elected to the South Carolina legislature. He served in the war (spending much of it in British captivity) and afterwards served again in the state legislature and then as a delegate to the Continental Congress. In 1787 he was selected, along with Charles Cotesworth Pinckney, Pierce Butler and John Rutledge, to represent South Carolina at the Philadelphia Convention.

Pinckney was young, self-confident and verbose. Currie calls him a “total windbag.” Currie, The Federalist Period at 267 n.239. James Madison also found him annoying. Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention 54 (2015). Pinckney’s importance at the Philadelphia Convention has long been obscured, perhaps in part due to Madison’s reluctance to credit Pinckney’s many contributions. See id. at 234. Though I have not read it, a relatively recent biography of Pinckney evidently aims to correct the record. See Marty D. Matthews, Forgotten Founder: The Life and Times of Charles Pinckney (2004).

Be that as it may, our interest here relates only to one of Pinckney’s proposals at the Convention, one that (unlike a number of his others) did not make it into the Constitution.

Pinckney’s Proposal

 On August 20, 1787, Pinckney offered the following proposal for incorporation into the Constitution:

     Each House shall be the Judge of its own privileges, and shall have authority to punish by imprisonment every person violating the same; or who, in the place where the Legislature may be sitting and during the time of its Session, shall threaten any of its members for any thing said or done in the House, or who shall assault any of them therefor– or who shall assault or arrest any witness or other person ordered to attend either of the Houses in his way going or returning; or who shall rescue any person arrested by their order.

2 Max Farrand, The Records of the Federal Convention of 1787 341 (1911).

There are several points worth noting about this proposal. First, much of it was evidently derived from the Massachusetts Constitution of 1780, which provided in relevant part:

[The house] shall have authority to punish by imprisonment every person, not a member, who shall be guilty of disrespect to the house, by any disorderly or contemptuous behavior in its presence; or who, in the town where the [legislature] is sitting, and during the time of its sitting, shall threaten harm to the body or estate of any of its members, for anything said or done in the house; or who shall assault any of them therefor; or who shall assault or arrest any witness, or other person, ordered to attend the house, in his way in going or returning; or who shall rescue any person arrested by the order of the house.

Mass. Const., 1780, Pt. 2, ch. I, § 3, art. X.

Pinckney’s proposal, however, was broader because its first clause allows each house to be the judge of its privileges and to punish individuals for violating the same. Thus, it evidently would have allowed punishment for misbehavior other than that specified and would have made each house the judge of what misbehavior was deserving of punishment. It was therefore significantly more “Blackstonian” than the Massachusetts provision.

Second, neither Pinckney’s proposal nor the Massachusetts provision authorized punishment beyond imprisonment. Fines, physical punishments and various forms of humiliation, all of which had been imposed by some colonial assemblies (and, more distantly, by Parliament itself), are not mentioned. The Massachusetts Constitution also limited imprisonment to a maximum of 30 days, but the Pinckney proposal did not incorporate that limitation.

Third, Pinkney’s proposal would have not only empowered each house of Congress to punish a broad range of contempts or breaches of privilege, but it would have specifically applied to persons purporting to “arrest” congressional witnesses or intervening to “rescue” individuals imprisoned by congressional order. Thus, individuals acting under color of law, presumably including government officials, would have been subject to congressional punishment.

Finally, the proposal is consistent with the South Carolina political culture with which Pinckney was familiar. There the vigorous assertion and enforcement of legislative privilege had been well established and widely accepted in the political establishment, where it was identified with preserving the traditional rights of Englishmen and resisting arbitrary exercises of the royal prerogative. The idea that the exercise of legislative privilege might itself be arbitrary and tyrannical was one that might not have (yet) occurred to Pinckney.

The Convention Briefly Debates Pinckney’s Proposal

Pinckney’s proposal was initially referred to the Committee of Detail, which took no further recorded action on it. However, on September 4, Pinckney made another effort to persuade the Convention to adopt it. Madison’s notes reflect that Pinckney “moved a clause declaring ‘that each House should be judge of the privilege of its own members.[‘]” 2 Farrand 502. This may have been Madison’s shorthand for the proposal Pinckney had previously submitted, though there is no way of knowing.

Gouverneur Morris supported Pinckney’s proposal, while James Wilson opposed it as “needless,” apparently on the ground that every public body had the power to judge its own privileges and the express reference to the congressional power might raise doubts as to whether other bodies, such as courts, would enjoy the same power. 2 Farrand 502-503.

Two other delegates, Edmund Randolph and Madison himself, expressed doubts about the “propriety of giving such a power” to Congress. Randolph’s reasons were not recorded, but Madison indicated it would be improper to “give a discretion to each House as to the extent of its own privileges.” 2 Farrand 503. He “suggested it would be better to make provision for ascertaining by law, the privileges of each House, than to allow each House to decide for itself.” Id. (emphasis in original). He also raised the issue of “considering what privileges ought to be allowed to the Executive.” Id. Whether this reflected a concern that Pinckney’s proposal infringed on executive authority or was simply an unrelated observation is unclear.

No further discussion is recorded, and Pinckney’s proposal apparently died at that point.

The South Carolina Constitution of 1790

It is worth mentioning here that when South Carolina adopted a new constitution in 1790, it included a provision that closely mirrored the aforementioned provision in the Massachusetts constitution. Unlike Massachusetts, however, South Carolina did not include a time limit on imprisonment. C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev. 691, 714 n.71 (1926). While it is unknown (at least by me) whether Pinckney personally played any role with respect to this particular provision, he did chair the convention at which the new constitution was adopted.

Debates in the Early Congresses

It would not be long after the ratification of the Constitution that the issue of the contempt power would arise anew. Pinckney managed to switch sides and lose again, which is impressive when you think about it.

The first controversy arose during the Fourth Congress, when the House ordered the arrest of two nonmembers, Randall and Whitney, who allegedly sought to bribe members of Congress as part of a scheme to acquire certain federal lands. After the House heard from Randall’s counsel and debated the issue, Randall “was found guilty of a contempt and of a breach of the privileges of the House, was reprimanded by the Speaker, and was committed to the custody of the Sergeant-at-Arms until further order of the House.” Jurney v. MacCracken, 294 U.S. 125, 148 n.4 (1935). Whitney was later discharged. Id.

Although the House by substantial majority voted to hold Randall in contempt, a number of members were skeptical that the House had this power. See Currie, The Federalist Period at 234-38. Some went so far as to suggest that the House could impose no punishments except as authorized by express constitutional provision, while others suggested the exercise of a general contempt power could be justified only by “absolute necessity.” Id. at 236 (quoting Representative Nicholas).

Madison was among those critical of the House’s action, arguing in the debate that “the House could have no privileges, unless what arises from the necessity of the case.” 5 Annals of Congress 223. In a letter to Thomas Jefferson a few days later, Madison expanded on this criticism, stating “it will be difficult, I believe, to deduce the privilege from the Constitution” and suggesting that the House’s action could not be justified even by “the arbitrary claims of the British House of Commons.” Letter of James Madison to Thomas Jefferson, Jan. 10, 1796, 16 Madison Papers 181 (cited in Currie, The Federalist Period at 234 n.236).

Interestingly, no one in this debate mentioned the Convention’s rejection of Pinckney’s proposal less than a decade earlier. Currie, The Federalist Period at 234-35. This despite the fact that several members of the House in the Fourth Congress, including of course Madison himself, had been delegates to the Convention.

Another important debate over the contempt power occurred in the Sixth Congress, when the Senate ordered the editor of the Aurora (described by Currie as “a shrill Republican mouthpiece”) to appear and show cause why he should not be held in contempt for publishing an alleged libel against the Senate. See Currie, The Federalist Period at 266-67. After an initial appearance, the editor refused to appear again before the Senate, which held him in contempt and ordered the Sergeant-at-Arms to arrest him. Id. 

Various senators protested the Senate’s action, making some of the same arguments that House members had made in opposition to the Randall and Whitney contempt proceedings. As Professor Currie notes, senators argued that “[t]he Constitution had limited legislative privileges by enumerating them; no law had defined the alleged offenses in advance; [and] the Senate was acting as a judge in its own cause.” Id. at 267. Another important argument (which had not been relevant in the Randall and Whitney case) was that the Senate was infringing on freedom of the press. Id. Not surprisingly, the senators who supported the Aurora tended to be those who were aligned with its anti-Federalist, pro-Jefferson leanings. See Potts, 74 U. Pa. L. Rev. at 721.

Perhaps more surprisingly, one of the loudest voices against the proposition that the Senate had the constitutional power to punish nonmembers was none other than a freshman senator named Charles Pinckney (yes, that’s our Charles Pinckney). See 10 Annals of Congress 69-74.

Many years later, Justice Brandeis would suggest that Pinckney’s proclaimed opposition to the Aurora contempt was based solely on concerns that “broad, undefined privileges” of Congress could be used improperly, for example, as a tool to stifle freedom of the press. Jurney, 294 U.S. at 150 & n.8. While this was a major thrust of Pinckney’s argument, he went further. Pinckney challenged the notion that Congress could assert any privilege other than those specifically enumerated in the Constitution.  See 10 Annals of Congress 72 (“I assert, that it was the design of the Constitution, and that not only its spirit, but letter, warrant me in the assertion, that it was never intended to give Congress, or either branch, any but those specified, and those very limited, privileges indeed.”).

Pinckney did not mention his failed proposal to give the Congress precisely those powers he now claimed the Constitution withheld (neither, apparently, did anyone else). Politically, this makes sense because his opponents would undoubtedly wonder how he could square his hostility toward broad congressional privileges with his proposal at the Convention, or with South Carolina’s adoption of a similar provision at a state constitutional convention Pinckney himself chaired. Legally, however, Pinckney’s position was completely consistent. By specifically enumerating certain congressional privileges and (unlike South Carolina and some other states) specifically rejecting a broader provision to allow punishment of nonmembers, the framers of the Constitution evinced an intent (Pinckney could have argued) that Congress have no such power.

Jefferson, who presided over the Senate during the Aurora contempt debate, summarized the arguments for and against the recognition of a congressional power to punish nonmembers in his Manual of Parliamentary Practice. Although he avoided taking a position on the specific controversy, his opposition to the Blackstonian concept of privilege is clear. Jefferson writes disapprovingly of the fact that the privileges of Parliament “have been advancing for centuries with a firm and never yielding pace,” which he ascribes to the fact that they are indefinite in nature and amount to whatever Parliament decides they are. The fact that the Constitution identifies only certain specific privileges, Jefferson opines, probably reflects the framers’ “view of the encroaching character of privilege” and “their care to provide that the laws shall bind equally on all, and especially that those who make them shall not exempt themselves from their operation.”  If, alternatively,

one branch may assume its own privileges without control, if it may do it on the spur of the occasion, conceal the law in its own breast, and, after the fact committed, make its sentence both the law and the judgment on that fact; if the offense is to be kept undefined and to be declared only ex re data, and according to the passions of the moment, and there be no limitation either in the manner or measure of the punishment, the condition of the citizen will be perilous indeed.

House Rules and Manual §298 (106th Cong. 1999).  Despite his ostensible neutrality, it is safe to say that Jefferson was not a fan of a broad view of legislative privilege.

With respect to the Aurora controversy, Jefferson’s legal position was consistent with his political interests. As already mentioned, support for the Aurora was closely associated with Jefferson and his political party, as suggested by this October 12, 1800 letter from Pinckney to Jefferson in which Pinckney references his Senate speech against the Aurora contempt. Jefferson also criticized the Senate’s action elsewhere. See Currie, The Federalist Period at 266 n.236.

Jefferson, of course, had not been at the Convention, but he was one of the few people who had access to Madison’s notes at this time. See Bilder, Madison’s Hand at 208-10. If he was aware of Pinckney’s proposal, however, he did not mention it.

The Pinckney Proposal Disappears

The Pinckney proposal was not merely unmentioned during the early congressional debates; it appears to have disappeared nearly entirely from the historical record for about a century and a half. This may be explained in part by the fact that only Madison’s notes of the Convention mention it; these notes were not published until 1840 and were not easily available or widely known after that. See Bilder, Madison’s Hand at 236-37.

The earliest reference to Pinckney’s proposal that I could find is in a turn of the 20th century work on the Constitution. See William M. Meigs, The Growth of the Constitution in the Federal Convention of 1787 101-02 (2d ed. 1900). The next reference does not appear until the 1940s. Of course, I may very well have missed something, but so apparently did the lawyers, scholars and courts that addressed the issue of legislative privilege and the contempt power during this time period.

For example, in 1879 a prominent lawyer wrote a book focused exclusively on “whether general power to adjudicate and inflict punishment for contempts and breaches of privilege, has been vested by the Constitution in the Senate and House of Representatives.” Charles P. James, The Power of Congress to Punish Contempts and Breaches of Privilege 3 (1879). A key part of the author’s argument against the existence of such power was that the framers were quite familiar with parliamentary privilege and its usage, particularly by the houses of Parliament, that they determined to incorporate into the Constitution “those privileges and powers only, which should be suitable to their own legislative assemblies; [and] they intentionally omitted, and intended to exclude, what they did not set down.” Id. at 123.

James goes on to reject the argument that the framers thought the contempt power so obvious it was unnecessary to mention it. Among other things, he argues that “such a supposition must assume that some, at least, of the delegates– for example, those from Massachusetts– were capable of trusting to implication, a matter which, in framing their State Constitution, they had deemed it necessary to provide for expressly.” Id. Yet James makes no mention of the fact that Pinckney had actually offered, and the Convention had rejected, a proposal modeled on the Massachusetts provision. This omission is explicable only if James were unaware of the Pinckney proposal.

To be sure, the rejection of the Pinckney proposal was a double-edged sword from the standpoint of James’s argument. At least one delegate (James Wilson) had thought it “needless” to include the proposed language in the Constitution. On balance, however, the rejection of Pinckney’s proposal seems to support James’s thesis by showing that the Convention did not simply assume that Congress would enjoy the same privileges as Parliament or the state legislatures. And in any event, it would have been disingenuous to knowingly omit this information.

By the way, did I mention that the author’s full name was Charles Pinckney James? Make of this what you will.

Other scholars of legislative privilege seem to have been just as unaware of Pinckney’s proposal. Writing a half-century later and taking opposition side of the question, Professor Potts wrote an influential article that also makes no mention of the Pinckney proposal:

     Like the nine state constitutions, the Constitution of the United States is silent on the subject of contempt. Each house is given power to judge of the election and qualification of its members, to make its own rules of procedure, punish its members for disorderly conduct, and, with the concurrence of two-thirds, expel a member, but nothing is said of any power to deal with outsiders who may disturb the house or obstruct its proceedings.

Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev. at 715. Again, it would have been intellectually dishonest for Potts to have not discussed the Pinckney proposal, and it can only be concluded that he too was unaware of it.

Interestingly, both James and Potts wrote at key times for the law of legislative privilege. James published his book the year before the Supreme Court decided Kilbourn v. Thompson, 103 U.S. 168 (1880). In that case, the Court held that the House was without power to punish a recalcitrant witness in an investigation it found to be beyond the House’s legislative authority. While Kilbourn did not go as far as James in denying the existence of a general legislative power to punish nonmembers (it left open the possibility that such a power in some instances might be deemed necessary in aid of the legislative function), it employed reasoning similar to his in concluding the Constitution did not vest in the House and Senate the privileges of the British Parliament. Kilbourn, 103 U.S. at 189 (“We are of opinion that the right of the House of Representatives to punish the citizen for a contempt of its authority or a breach of its privileges can derive no support from the precedents and practices of the two Houses of the English Parliament, nor from the adjudged cases in which the English courts have upheld these practices.”). Like James, the Court made no mention of the Pinckney proposal.

When Potts wrote in 1926, the Court was considering whether the Senate had the power to arrest Mally Daugherty when he refused to appear and provide information in a committee’s investigation of the management of the Department of Justice by Harry Daugherty (our old friend), the former Attorney General and Mal’s younger brother. This case therefore presented the question left technically open in Kilbourn (though the Court’s dicta in that case strongly suggested that the power to punish recalcitrant witnesses would be limited to judicial proceedings expressly set forth in the Constitution, such as impeachment or judging elections). The Court upheld the Senate’s action, explaining:

     We are of opinion that the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history– the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action– and both houses have employed the power accordingly up to the present time.

McGrain v. Daugherty, 273 U.S. 135, 174 (1927).

The McGrain Court’s reference to Madison apparently relates to his support for an investigation by the House in 1792 into the failed St. Clair expedition. See id. at 161. No mention is made of the Pinckney proposal or the concerns Madison raised at the Convention about it. This omission certainly reflected the Court’s ignorance of the matter, which is not mentioned in the briefs. See McGrain v. Daugherty U.S. Supreme Court Transcript of Record with Supporting Pleadings (MOML) (on file with author). Similarly, the Pinckney proposal is not mentioned in the last Supreme Court case to consider the inherent contempt power (Jurney) or, to my knowledge, in any prior judicial opinions.

In short, it is reasonable to conclude that, at least until 1935 and likely for a good time thereafter, Pinckney’s proposal  and its failure at the Convention were unknown to members of Congress, scholars, lawyers, litigants and judges who addressed themselves to the question of whether Congress has a power to punish nonmembers and the scope of any such power if it exists.

Who Cares?

Or, as Professor Currie would say (explaining to his civ pro class the meaning of a demurrer or 12(b)(6) motion), so what? Does the fact of the Pinckney proposal and its rejection by the Convention fundamentally change how we understand the congressional contempt power?

To answer that question, we need to identify three schools of thought regarding the contempt power.

The first we may call the Blackstonian view, in which the Constitution implicitly bestowed on the House and Senate the same powers and privileges as had been asserted and exercised by the houses of Parliament (and had been claimed and/or exercised by colonial and state legislative bodies such as the South Carolina house). Under this view, each house is the judge of its own privileges, just as the Pinckney proposal would have provided. A modified version of this view, associated with Professor Chafetz, acknowledges that the courts play a role in policing the jurisdiction of the contempt power (i.e., certain matters, such as mere insults or criticism of the legislature outside its presence, do not fall with that jurisdiction at all), but contends that each house is the final judge of contempts which fall within that jurisdiction. See Chafetz, Congress’s Constitution at 191-92.

A second view, which we may call the Madisonian view, rejects the proposition that Congress has inherited any powers from Parliament that are not explicitly set forth in the Constitution, but acknowledges that the exercise of the contempt power may be justified on occasion “by the necessity of the case.” Exactly how such necessity is determined remains unclear.

A third view, which we may call the Pinckneyish view (after either Charles Pinckney or Charles Pinckney James), would say that Congress has no privilege at all other than what is prescribed in the Constitution. There is no “necessity” that Congress be able to punish nonmembers itself; it simply needs to be able to exclude disruptive outsiders from its presence. For individuals who disrupt congressional proceedings, attempt to bribe or intimidate members, or refuse to comply with subpoenas, Congress can pass laws and rely on the legal system to provide the appropriate punishment and deterrence.

The Supreme Court on multiple occasions has rejected the Pinckneyish view, although one could argue that Kilbourn came close to embracing it. However, the Office of Legal Counsel has suggested that this issue could be revisited if Congress attempts to use the inherent contempt power in the future, particularly against the executive branch:

Although the [inherent contempt] authority has been cited by a court as recently as 1970, see United States v. Fort, 433 F.2d at 676, Congress has not attempted to use it for approximately 50 years and it seems most unlikely that Congress would dispatch the Sergeant-at-Arms to arrest and imprison an Executive Branch official who claimed executive privilege. Moreover, while Supreme Court precedents support the right of Congress to imprison individuals for contempt, there is some question whether such authority would continue to be upheld.

Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 U.S. Off. Legal Counsel 68, 86 (1986).

The story of Pinckney’s proposal and its rejection by the Convention could play a role in convincing the Supreme Court to revisit its contempt jurisprudence in its entirety. More likely, it could cast enough doubt on prior precedents to convince the Court not to extend the contempt power to executive branch officials. And more likely than that, it could influence the Court to move away from the Blackstonian view of privilege toward the Madisonian view, which (as we will discuss in more detail in another post) could be detrimental to Congress’s ability to use the inherent contempt power against executive branch officials who assert executive privilege at the president’s direction.

So the answer is yes, the Pinckney proposal does matter (or, more precisely, could matter) with respect to how courts will rule in the future on the existence and scope of the contempt power. It is very important, however, to recognize that this statement applies only to Congress’s general power to punish nonmembers in aid of its legislative functions. As we will discuss in more detail in future posts, it does not apply to the use of the contempt power in support of Congress’s judicial functions which are expressly provided for in the Constitution.

As far as I know, no one has ever disputed that each house of Congress has the power to punish recalcitrant witnesses and others who commit contempt in the course of carrying out its judicial functions, including impeachment. The Pinckneyish view denies that the power to punish is inherent in the vesting of legislative power, but one can no more deny this power to a legislative body exercising its judicial functions than to a court. Thus, if the House wishes to reinvigorate its exercise of the contempt power, it should do so in the context of a formal impeachment inquiry.