Recent coverage of the first attempt by a citizens’ committee to recall a United States Senator indicate that some members of the press do not understand the United States Constitution. Therefore some explanations are plainly in order.
The attempt to recall Senator Robert Menendez (D-NJ) began for two reasons:
- Voter anger with many Democratic initiatives with which Menendez had wholeheartedly identified himself was running hot. And yet:
- Neither Menendez nor his colleague Frank Lautenberg were up for re-election in 2010.
So Tea Party activist RoseAnn Salanitri of Sussex County started poring over the US and New Jersey State Constitutions for an answer to this dilemma. And she found one:
The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress.
The people of New Jersey amended their Constitution to include this provision in 1993. Two years later, the legislature passed the Uniform Recall Elections Law to implement that provision. Under its terms, the people of New Jersey, or any jurisdiction of it, may recall any elected official, a year after his last election, for any reason or no reason.
The UREL set out clear and concise procedures. So Salanitri and two other activists formed a Committee to Recall Robert Menendez from the Office of United States Senator and filed a Notice of Intention in September of last year. Sadly, the Secretary of State at the time, Nina Wells, stalled the Notice. Beyond a bland acknowledgement-of-receipt that Salanitri received on October 5, Salanitri heard nothing until she sued the State and then moved for summary judgment to force the State to act.
Then and only then did Secretary Wells determine that the US Constitution somehow trumped the State Constitution in this manner. The only text that she could site was the text saying that the Senate itself “may, with the concurrence of two-thirds, expel a Member.” And so Salanitri and her lawyers took the case to the next level: the Appellate Division of the Superior Court.
On March 15, 2010, that Court held that, because the US Constitution is silent on the matter of recall, and the commonly cited US Supreme Court case law did not address recall, either, the best course would be to allow the recall process to proceed unless and until Senator Menendez would have standing (by losing a recall election) to bring a federal case. Menendez did not wait; he filed for certification to the New Jersey Supreme Court, as is his right. Last Thursday, that Court reversed the Appellate Division, in a decision worthy of Blackmun, Douglas, et al. in Roe v. Wade. The opinion by Chief Justice Stuart Rabner had every element of “Constitutional fishing” in it except Douglas’ famous “penumbra” metaphor.
Lead counsel Andrew L. Schlafly, when speaking to Mark Impomeni of Human Events, said it best:
The people never gave up their sovereign power to recall elected federal officials, and there is no reason why the people would abdicate this responsibility. Otherwise a candidate can say one thing to get elected, but then say and do the opposite beginning the day after he is elected, without his constituents’ being able to do anything to prevent this. The Constitution does not require such an illogical result.
Fred Snowflack of The Daily Record seems to think that it does. Near the end of his editorial this morning, he says:
Recalling officials simply because of disagreement can result in almost constant recalls. Democrats can seek to recall Republicans a year after they get elected and Republicans can do the same with Democrats. Unless an office holder is truly committing misdeeds, let’s reserve recall elections for when they are really needed.
Fine. Then let the people of New Jersey re-amend their Constitution to specify that in order to recall an elected official, the recall committee has to have a reason beyond policy differences. But Snowflack takes his readers’ breath away, not in his original text, but in his commentary replies:
The states do NOT give power to the federal government. It is the other way around. Given the fact, there is no recall provision in the US Constitution, one can not recall federal officials.
Wrong, Snowflack. The States created the Constitution; the Constitution does not create the States. Nothing in the Constitution properly construes either to make mere provinces (literally, “conquered places”) of the States, or to deny a power that the people retained, as a matter of English common law, before the first English settlement at Roanoke, Virginia, and later at Jamestown, and eventually at Plymouth. If the Constitutional Convention really wanted to forbid recall, they would have had to make that forbiddance explicit. They did not.
The recall committee will soon decide whether to carry the struggle to yet another level. In the meantime, Snowflack might have touched on a resolution that he didn’t intend:
The senator is up for re-election in November 2012. Let those who disagree with him vote against him at that time.
In view of this latest nakedly political thwarting of the will of the people, Snowflack might want to be careful what he wishes for. He, and Menendez, might just get it in less than two years.
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