Is the Recall of Senators Constitutional?

In a previous article I called for the people of Arizona to recall John McCain. I received the following email from someone who claimed I was “promot[ing] . . . self-serving trash.” He didn’t leave his name. Here’s the full content of his email:

“As a Class of ’73 graduate of WMU, I can tell that Gary never took a constitutional law or Poly Sci class or he would know that the Founding Fathers considered recalling Senators in 1787, but recall was not added to the Constitution. The concept of Recall is based upon State law (either statute or constitutional) and has no effect on Federal elected officials.
“Michigan passed a constitutional amendment for Term Limits back in the 1990s with language that it applied to both state and federal elected officials.
“Read your constitution before you promote such self-serving trash.”

I don’t know if “TheBulldog” (his email moniker) is a lawyer, but his comments are typical of academic elitists. If a person hasn’t had a constitutional law or political science class he or she is not equipped to understand and write on constitutional principles. Only lawyers, judges, and professors can tell us what the Constitution means.

It’s true that the constitutional framers debated the subject of recall. What counts is the text of the Constitution. In order for there to be a constitutional provision against senatorial recall, the Constitution would have to say so since it’s a document of enumerated powers, and the power prohibiting the recall of Senators is not enumerated.

In addition, as “TheBulldog” notes, the Constitution was drafted in 1787, but it was not ratified in that year. It was sent to the states, and the states weren’t satisfied with its limiting powers. They called for a Bill of Rights to be added to further restrict the powers of the national government.

If we follow the constitutional logic of “TheBulldog,” there would be no freedom of religion, press, speech, or assembly since these were not part of the 1787 Constitution. They were added in 1789 with the entire Constitution ratified in 1791.

Let’s take note of the all-encompassing Tenth Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The power to prohibit the recall of Senators is not found in the Constitution, and there is no directive to the states that they are prohibited from recalling Senators, therefore that freedom resides with “the States respectively, or to the people.” This would mean that if the people want to recall a Senator, and the national Constitution does not prohibit a recall, then the people can recall a Senator.

Obviously there is great debate here, as there is on all constitutional questions. Good arguments have been made for the recall of Senators. For example, in 2009 a New Jersey appellate court ruled that an effort to recall Sen. Robert Menendez (D-NJ) could proceed because the New Jersey constitution allows for the recall of federal officials.

“[A]bsent clear precedent that compels such a declaration, we are loath to strike down a component of our State’s charter that fortifies the democratic role of our citizens. In short, our State Constitution, and the democratic process that produced it, deserves our utmost respect unless federal law clearly and definitively trumps it.”

Consider these provisions under Article I of the New Jersey Constitution, provisions that were added in 1993 when 76.2% of the citizens of New Jersey voted for them:

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 Legislature shall enact laws to provide for such recall elections.” (2b)

In 2010, the NJ Supreme Court eventually ruled against the NJ recall provision in a 4-2 decision and nullified the Constitution they (and Sen. Menendez) took an oath to uphold. An interesting side note, “in 1999, [Menendez] was a big fan of recall when he mounted a fierce recall initiative against one of his own protégés, Union City Mayor Rudy Garcia.”

Another thing to keep in mind is that the addition of the 17th Amendment to the Constitution changed the way Senators are elected. Prior to the ratification of the 17th Amendment, Senators were appointed by the respective state legislatures. Now they are elected through popular vote.

Constitutional attorney John Armor, who practiced law at the U.S. Supreme Court for 33 years and has written on and taught the subject of constitutional law, writes:

“When the 17th Amendment was ratified and went into effect to make senators elected by the people rather than appointed by the state legislatures, it provided additional reasons to uphold recall where provided. This Amendment repeated, word for word, the language of the basic Constitution that the state voters would be those for ‘the most numerous branch of the state legislature.’ It left to the states the definition of who could vote and how the elections would be conducted.”

In summary, the constitutional framers “delegated the whole election process to the states. . . .” A recall provision “does not have to appear in the Constitution or federal laws to be used on that level.” At the time of the passage of the 17th Amendment, some states had recall provisions. There was no conflict with the Federal Constitution.

The Declaration of Independence makes it clear that “governments … deriv[e] their just powers from the consent of the governed.” How is that possible if the governed can’t demonstrate their consent?