In Arizona, Louisiana and a few other states, well-meaning citizens would like to recall their U.S senators. Fair enough. But while this opinion represents a commendable movement to make Congress more accountable for its actions, it tramples on the U.S. Constitution and undermines the rule of law.
Contrary to popular Web sites, the recall of members of the U.S. Congress has never been permissible according to the Constitution, and no member of the Congress has ever been removed by such means. That’s because the U.S. Constitution sets the qualifications and terms for being a member of the House or Senate; changing those qualifications or terms (as in making them subject to a recall) is unconstitutional and would require a constitutional amendment.
Recall is not a new idea. At the Constitutional Convention, the Framers considered and rejected a national recall provision. Recall was raised again as an amendment in New York, but the 1788 ratifying convention defeated it. Why? Because the Constitutional structure held senators accountable. Originally, senators were elected by the state legislatures and were responsible to their state for their actions. At the same time, the Framers wanted to bring deliberation to the national legislature and sought to protect lawmaking from the whim of passion and majority faction. If legislators are constantly under the threat of instant recall, they will never be sure of their step, for fear of some impulse of the moment. So the Constitution creates a bicameral legislature–with the House subject to the changing sentiments of opinion, and the Senate, with its longer terms, bringing stability and deliberation.
These considerations, however, should not lead us to believe the Framers did not provide a way to remove bad legislators. The Constitution contains an expulsion clause for members of Congress, though it has widely been neglected since the Civil War cases of disloyalty. The most effective means of removal is still election: if a member of Congress does not do their work well, then don’t return them to office.
Some confusion about recall is understandable. During the Progressive era, recalls were instituted for state and local officers across the nation. To be clear, these changes did not apply to federal officers (i.e. senators, representatives, judges). In 1908, Michigan and Oregon became the first states include recall in their state constitutions. Eighteen states currently continue this progressive legacy.
It was also the Progressive movement that undermined the Senate’s role in protecting the states. The 17th Amendment made a fundamental change in the structure of our federal system when it was ratified in 1913. U.S. Senators, who were intended to represent the states and give an account to their state legislatures, are now popularly elected. Those who want to make the Senate once again accountable to the states would do well to consider reversing that change for the good of the Constitution.
Benjamin Shelton currently is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm
