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.

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.

Enter Stage Right -- http://www.enterstageright.com