Bench Memos

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Rep. McKinney and Privilege from Arrest


Congresswoman Cynthia McKinney, who reportedly hit a Capitol Police officer in the chest with her cell phone, apparently thinks that she has a constitutional privilege to attack Capitol Police officers: Her website oddly highlights the Privilege from Arrest provision of Article I, section 6, clause 1 of the Constitution, which provides that members of Congress “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.” Unfortunately for McKinney, even apart from the fact that her alleged conduct would appear to fall within the core definition of “breach of the peace,” the Supreme Court ruled in 1908 in Williamson v. United States that the “except” phrase covers “all criminal offenses.”

Of course, the Court in Williamson conducted an originalist analysis that is now discredited by five justices. Who knows what resort to the “living Constitution” and to “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (as insipidly proclaimed in Planned Parenthood v. Casey and Lawrence v. Texas) might yield? Or how foreign practices bear on the matter?


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