Orientation and Getting Started
The Creation of the Constitution
The Road to Philadelphia
Federalism
Congress
Slavery and the Constitution
The Presidency
The Federal Judiciary
Some Other Important Details
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Free Speech, Prior Debts, and the Supremacy Clause

Free Speech & Debate

When the notion of “free speech” first emerged in the western world, it was not considered a right that should be extended to all people. The 1689 British Bill of Rights had asserted only: “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.” It was for political purposes only that legislators were singled out to enjoy this special privilege. Members of Parliament needed to be able to discuss public measures—some of which might displease the Crown—freely and without fear of reprisals. It seemed far less important that ordinary citizens needed to enjoy this right. 

Although many of America’s first state constitutions had included explicit provisions for the freedom of the press, most of the ones that had included any mention at all of a “freedom of speech” had extended that right only to legislators. The Articles of Confederation had likewise protected that right, and when the Committee of Detail drew up a draft constitution in the Convention, they inserted a provision that was modeled after the one in the Articles. They also followed the example of the Articles in protecting Congressmen from “civil arrests” (a physical detention to answer civil charges which is almost obsolete today). These provisions were adopted unanimously and without debate on August 10 and their wording was changed slightly in the Committee of Style.

The Development of the Free Speech & Debate for Congressmen 

ARTICLE V of the Articles of Confederation: “Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.”Committee of Detail Report, Art. VI, Sec. 5: “Freedom of speech and debate in the legislature shall not be impeached or questioned in any court or place out of the legislature; and the members of each House shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it.”Art. I, Sec. 6, of the Constitution: “The Senators and Representatives … shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”