John Armor

Do the citizens of the states have a constitutional right to recall their Members of Congress before the end of their set terms, if they become satisfied that their Members are seriously harming the interests of the people who elected them?

The U.S. Constitution states no right to recall federal officials. But that’s not the end of the inquiry, only the beginning.

There are two main reasons why the right of recall can be established for all elected officials, including Members of Congress. One is that the Constitution delegates general election law to the states. The other is that the 10th Amendment reserves to the states and the people all rights not delegated to the national government.

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High school textbooks say, and almost all people believe, that voting at the beginning was restricted to white, male property owners. All three points are false. The 1790 Census revealed that 5,000 property-owning residents of the Commonwealth of Virginia were free blacks eligible to vote. Some non-property owners were allowed to vote in some states; blacks were allowed to vote in some states; and the rarest exception was that women were allowed to vote in New Jersey. This variety of who was allowed to vote underscores that the Constitution gave freedom of definition of election processes to the states.

The right of recall has been rarely used, but it is older than the United States. It appears in the Massachusetts Charter of 1691. Several states included it when they rewrote their constitutions after the American Revolution. Recall of U.S. Senators was specifically included after 1789. It was not by popular vote, but by vote of the state legislatures, the “electorate” for Senators per the original Constitution.

Some will argue that a 1995 Supreme Court decision (U.S. Term Limits v. Thornton) saying that term limits on Members of Congress cannot be set by state law means that states cannot recall federal officials. However, there was a deliberate decision by the Constitutional Convention to apply term limits to any elected federal official. They could have done the same with respect to recalls, which are part of the election process. But instead, they delegated the whole election process to the states. Whether or not the Court was correct in saying that term limits constitute a qualification of office, recall is not a qualification of office but merely part of the electoral process, which was left to the states.

John Armor

John Armor practiced First Amendment law in the US Supreme Court for 33 years and wrote this article at the behest of the American Civil Rights Union.