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Recalls could force politicians to recall the Constitution

By W. James Antle III
web posted August 18, 2003

Like most people who enjoy a good show, I have been following the California recall election attentively. No interest in politics is required. One of the front-runners is action-film superstar Arnold Schwarzenegger, who declared his candidacy on "The Tonight Show" with Jay Leno and can currently be seen in a theater near you. Some of the other candidates read like a list of TV "where are they now" documentaries: "Diff'rnt Strokes" child star Gary Coleman, Hustler magazine publisher Larry Flynt and the watermelon-smashing comedian Gallagher.

Porn film actress Mary Carey poses for a portrait at her campaign headquarters near downtown Los Angeles on August 11
Porn film actress Mary Carey poses for a portrait at her campaign headquarters near downtown Los Angeles on August 11

One of the minor celebrities running is the buxom "adult film" actress Mary Carey. Thinking that her reported proposal to recruit pornographic movie stars to lure businesses into the state couldn't possibly be for real, I paid a visit to her campaign website. It was not a work-safe click. A topless Carey was shown gleefully jumping up and down on the main page, bouncing her ample bosoms. This has since been replaced with a more, shall we say, restrained picture of her clad in a red, white and blue bikini.

This circus-like atmosphere is one of the reasons conservatives have been deeply conflicted about the whole recall process. They despise California Gov. Gray Davis and there is much to dislike. In his almost pathological efforts to curry favor with public employee unions, he is spending the state into bankruptcy. From illegal immigration to the energy crisis, his solutions are uniformly politically correct, command-and-control, efforts that rely on taxes, regulations and subsidies.

Yet there was nothing wrong with Davis that wasn't readily apparent when California voters narrowly decided to reelect him months ago in the 2002 gubernatorial election. His opponent, Republican businessman Bill Simon, now running for the job again in the recall election, was a far from ideal candidate but he did offer a contrasting vision and a clean break from Davis' policies. The voters chose not to seize this opportunity and, some would say, ought to now be stuck with the consequences.

Then there is the matter of what will happen if this blunt recall tool is turned against Republican officeholders. We may find that once this genie is out of the bottle, it becomes nearly impossible to contain. Escalating competing recalls would upset California's political stability without necessarily transforming policy in a salutary direction. Conservatives do not even agree whether Schwarzenegger would represent much progress on the policy front.

This is why Jonah Goldberg of National Review On-Line and Christopher Ruddy of Newsmax.com both came out against the recall in columns before it made the ballot, and veteran syndicated columnist George Will is still urging conservatives to oppose it. Conservatives have long been suspicious of direct democracy, viewing it as a threat to the individual liberties and enumerated government powers enshrined in our republic's constitutional framework. We are a republic, not a democracy. Our leaders may be chosen by democratic means, but our liberties and our constitutional rights should never be subject to the whims of majority opinion. Direct democratic tools like the recall are a legacy of the Progressives, the ideological ancestors of today's liberals.

But perhaps constitutionalists can find a way to turn this progressive instrument for growing government around to suit their own objectives. Davis is being recalled due to the magnitude of his inability to manage state finances and alleged dishonesty during the election season about the extent of the fiscal problems. This, the argument goes, is a breach of his obligations as governor. What if other obligations, such as abiding by the Constitution, could be enforced by the threat of recall?

Constitutionalists should put legislators, executives and wherever applicable judges on notice that a failure to live up to the oath they swear to the Constitution will result in efforts to recall them. They must be prepared to defend their actions in office with a rationale coherently rooted in the text and logic of the U.S. Constitution and any applicable state constitution.

If a congressman votes to grow government beyond its constitutional limits, constitutionalists should initiate a recall. If a governor exceeds the constitutional powers of his office, he should be recalled. If a judge is more interested in her personal legislative agenda than in following the Constitution, she should be recalled.

There are some rather obvious limits to this proposal. Not all states have the recall option and not all officeholders can be recalled. For example, only 17 states allow voters to recall their governors. So this couldn't possibly be a national strategy.

It's also the case that many Americans, whether they know it or not, favor unconstitutional government. Efforts to recall politicians for advocating policies a majority are likely to go no further than constitutional conservatives' proposals to impeach Earl Warren in the 1950s and '60s.

But this could be an instructive educational effort even if it will not always be a successful political effort, and anything that educates Americans about the Constitution is a good thing. In particular, the general public needs to be reminded of enumerated powers, the doctrine that the Constitution specifies and thus limits federal authority. The very fact of this discussion may bring some voters and officeholders back in line with our founding principles.

It might be a pipe dream, but constitutionalists need to start thinking outside the box a little bit. To fully restore the Constitution, we need to find new ways to insure that it actively limits government again. This calls for binding the political class in constitutional chains once again. If we need to use a Progressive tool like the recall to realize this goal, then so be it.

W. James Antle III is a senior editor for Enter Stage Right.

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