Whose Constitution Is It Anyway?

by digby

I wonder how these bold new “constitutional conservatives” are going to handle questions like this:

Can a U.S. senator be removed from office by popular vote — through the procedure known as recall? That question is now being hotly debated in New Jersey, where the Sussex County Tea Party is pushing a recall of Sen. Robert Menendez, a Democrat and head of the Democrats’ Senate political arm, the Democratic Senatorial Campaign Committee, or DSCC. “He has voted for unconstitutional bills, including health care and cap and trade,” the group says. “He also has consistently voted for legislation favoring illegal immigration and irresponsible fiscal spending.”

But do a state’s residents have the power to vote a senator out of office? Yes, New Jersey law explicitly says. “The people of this state shall have the power to recall … any United States senator or representative elected from this state,” a state law provides, written to conform with a similar provision in New Jersey’s constitution. But throughout U.S. history, no U.S. senator or representative has ever been recalled, and many legal scholars believe such an effort would be unconstitutional. They note that the U.S. Constitution provides for removing a senator or congressman only by vote of a member’s peers — through expulsion. “The recall of members was considered at the time of the drafting of the federal constitution in 1787, but no such provisions were included in the final version,” says a 2003 report by the Congressional Research Service. It’s that very silence that the Sussex County Tea Party believes provides an opening. Powers not specifically spelled out in the U.S. Constitution for the federal government are reserved to the states, including the recall authority, they argue. The U.S. Supreme Court has never squarely decided the question, but has suggested in other rulings that states have no power over positions created by the federal government, such as senators and congressmen. For now, the group is fighting in state court over a more fundamental issue — the legal right to gather signatures on a petition seeking the recall vote. Last month, New Jersey’s secretary of state said any such petition could not be accepted because a recall effort would violate the federal Constitution. “This is a matter of free speech,” says Dan Silberstein, a lawyer for the Tea Party group. “Gathering signatures on a petition is core political expression.” On Feb. 26th, a state appeals court will hear oral arguments on the petition issue. If the courts allow the Sussex County Tea Party to gather signatures, the group would then face the bigger legal battle, testing whether the voters actually have the power, under the U.S. Constitution, to recall a U.S. senator.

How about this:

Is there a right to secede from the Union, or did the Civil War settle that? Certain Tea Partiers have raised the possibility .. Enter a New York personal injury lawyer, and Supreme Court Justice Antonin Scalia. The lawyer, Eric Turkewitz, says his brother Dan, a screenwriter, put just such a question to all of the Supreme Court justices in 2006 — he was working on an idea about Maine leaving the U.S.and a big showdown at the Supreme Court — and Scalia responded. His answer was no: “I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

That’s not likely to sit well with Wolf Blitzer’s BFF, Eric Erickkson, who, while explaining the Mt Vernon manifesto, said this:

BLITZER: But the point that I’m trying to make is, isn’t the — the Supreme Court the final decision maker when it comes to whether or not the legislative branch or the executive branch goes too far?

ERICKSON: No. I don’t think the Supreme Court is. And I don’t think the founders of the Constitution did. We live in a day where we think when the Supreme Court says something is so, that’s the case. But the Supreme Court changes its mind. It’s not infallible.

Now, Antonin Scalia may think that as a Supreme Court justice he is the designated channeler of the founders’ original intent, but Eric Erickson begs to disagree. I guess that he believes the founders intended that right wing bloggers and ancient conservative movement functionaries to be the one’s to do it. I keep looking for that clause in the constitution and I can’t find it. Anybody?

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