The American Civil Rights Union, which filed an amicus curiae brief in support of the appeal by the Committee to Recall Robert Menendez from the Office of United States Senator, today offered a new commentary explaining why the recall of a United States Senator by his State's voters is constitutional and unaffected by the most-often-cited case law.
John Armor, a member of the ACRU's legal team, offered this commentary in today's American Thinker. In it he pointed out that the United States Supreme Court has never before heard a specific case involving the recall of a Member of Congress. He indicated that New Jersey's case could have an impact far beyond New Jersey, in the 17 other States that allow recall elections (and in Virginia, which allows recall "trials"), and in other States as well:
Several other states have provisions in their state constitutions and laws that may also allow recall efforts. And by the common provision of initiative by the people of state laws and constitutions, similar processes could be established in other states.
One such State might be Nebraska, where a campaign to make recall part of that State's constitution is now under way.
Armor points out that recall has a long history, going back at least to 1639. His main point is that recall is a power retained by the people--an instance of popular sovereignty. That is a concept that, he says, is supported by the second paragraph ("We hold these truths...") of the Declaration of Independence, and is an application of the "right of the people to alter or abolish" a "government" that "becomes destructive to" the purpose of securing the people's God-given rights.
This Examiner has argued before that the US Constitution is silent on the matter of recalls. Tellingly, the Constitution does say that "the time, place and manner" of elections of Representatives (and, with Amendment XVII, of Senators) is a matter for State legislatures to decide. Indeed the Constitution does not even attempt to make a uniform standard of determining who has the right to vote, except for four specific Amendments (XV, XIX, XXIV, and XXVI) which state that voters of all races, both genders, and all ages of 18 or older, are allowed to vote, and that voters in federal primary or general elections may not be required to pay any poll tax, or even be up-to-date on their other taxes, in order to vote. Beyond that, the Constitution says only that the same people who may vote to elect "the most numerous branch of their State's legislature" may also vote for Representatives and Senators.
Because States decide the election process, recall is a part of that process and is a State matter. Armor rejects the reasoning of those who cite the case of US Term Limits, Inc. v. Thornton as denying the right of recall because it denies the authority of the States to impose qualifications for membership in Congress beyond those that the US Constitution provides. Whether Term Limits was properly decided, and might in fact be reversible, is debatabale. But Armor distinguishes Term Limits from the recall question, in the same manner that Judge Edwin Stern and his colleagues at the New Jersey Superior Court's Appellate Division did on March 16. The distinction is this: a term-limit law would prevent the people from electing a person that they trusted (rightly or wrongly) and thus restrict their choice. Recall enhances their choice.
Armor also cites Amendment X, the Reserved Powers Amendment, and makes another distinction: though Congress did not exist before the States did, the recall power itself did exist and had been used before, though rarely. That, says Armor, makes recall a power retained by the States and the people, and reserved to the States and the people by Amendment X.
Today begins the last full month during which the State of New Jersey, or Senator Menendez, may appeal the decision in Cmte. Rec. Robt. Menendez fr. Ofc. US Sen. v. Wells & Giles, if either party so desires. If this does not happen, then signature gathering will begin in earnest on May 1.
This article is part of the Robert Menendez series.
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Comments
John Armor has a very elegant way of simply defining issues we make complicated. So much has been debated by so many regarding the constitutionality of recalls, but it is constitutional scholars, like John Armor, that we should be listening to.
I support the recall, where do I sign up?
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