US ~ Observer

Sen. Menendez Recall Killed by NJ Supreme Court

By: Devvy
December 13, 2010

As I predicted back in June, and fully explained in Footnote 1 below, the New Jersey Supreme Court has killed the effort to recall U.S. Senator Robert Menendez:

Nov. 18, 2010. Court kills Robert Menendez recall push

"The New Jersey Supreme Court struck down a tea party-led push to recall Democratic Sen. Robert Menendez as unconstitutional Thursday.

"In a 4-2 decision, state Supreme Court justices said that the Constitution forbids the recall of a sitting U.S. senator. Lawyers for The Committee to Recall U.S. Senator Robert Menendez argued that New Jersey law allows for such a recall, but justices determined that law was pre-empted by federal statute."

No where in Art. 1, Section 3 of the U.S. Constitution, Art. 1, Section 3 does it contain any language about recall.

The Tea Party Activists who brought the lawsuit are very unhappy and indicate they will take it to the U.S. Supreme Court. It will be shot down there, too. Just like term limits, the U.S. Constitution would have to be amended. I hope the sincere (and desperate) plaintiffs do not file a Petition for Writ of Certiorari. In my humble opinion, it will be a waste of time and money.

New Jersey became a state, December 18, 1787. The U.S. Constitution was adopted on September 17, 1787. New Jersey ratified the U.S. Constitution on December 18, 1787; 38 votes for and 0 against. Delegates for the State of New Jersey knew when they ratified the U.S. Constitution that it did not include recall for members of the newly created U.S. Congress. The state legislature of each state were the "You're fired!" authority, not voters.

Or, term limits. Of course, back then, how could any of the delegates even imagine individuals (like deceased Sens. Robert Byrd, Teddy Chapaquidick Kennedy and "censured" crook, Rep. Charlie Rangel) serving in Congress would fight like dirty dogs to stay in office 15, 20, 30, 40 --51 years!

The sticky legal issue in the lawsuit was an amendment to the New Jersey State Constitution back in 1993 allowing for recall for members of Congress. Fed up citizens got a constitutional amendment passed and the first potential history making challenge was shot down.

Which, of course, brings me back to one of my crusades for the past 15 years: The Seventeenth Amendment, which was clearly not ratified by enough states despite what's posted on inaccurate sites like Wikipedia.

One of the Amicus Briefs filed stated:

"B. The Seventeenth Amendment Restored to the People of the Several States their Inherent Power to Direct Election of the United States Senators Representing Their Respective States."


"Thus, the Seventeenth Amendment divested the legislatures of the several States of the power to elect the members of the Senate, and expressly vested that power in the people of the several States. The immediate goal of the amendment was to make the senators “more ... accountable to the people” (id.), and thus, more consistent with the founding principle of the nation's charter that “governments are instituted among men, deriving their just powers from the consent of the governed.” Declaration of Independence. Pursuant to this principle, it is the people, not their governors, who determine if their “Form of Government” is working “to effect their Safety and Happiness,” (id.) and to make whatever alterations that the people see fit for the government to achieve those ends."

Now, those attorneys are some of the best in this country because I know of them. However, let me give you my humble opinion about some of the arguments presented:

First: There was never any inherent power to directly elect U.S. Senators to represent the states. If that was the desire of the delegates who represented the states at the Continental Congress, it would have been inserted into the U.S. Constitution.

Second: According to the argument above, direct election was to make senators more accountable to the people. That is NOT consistent with what New Jersey signed on to when they ratified the U.S. Constitution and became a state under one Union:

How to restore states' sovereignty

"What's Harry Reid done for us lately?"

"That question was posed in one of the informal voter opinion sessions in Nevada hosted by Fox News during the recent election cycle. The constitutional response would be: U.S. senators are not supposed to represent the citizens of the state.

"When the First Continental Congress was convened via a resolution of the Congress of the Confederation, one of the first issues discussed on May 29, 1787, was the balance of power for a newly created federal government:

    3. Resolved, that the National Legislature ought to consist of two branches.

    4. Resolved, that the member of the first branch of the National Legislature ought to be elected by the people of the several States every _____ for the term of _____; to be of the age of ____years at least. ...

    5. Resolved, that the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures, to be of the age of ____ years at least. ...

"James Madison wrote in The Federalist Papers No. 45: "The Senate will be elected absolutely and exclusively by the State legislatures."

John Jay, co-author of The Federal Papers is quoted: "Jay then informed Governor Clinton that, unlike the Senate, where the two-thirds rule was in force for treaties and impeachment, the lower house had nothing to do with treaties; it represented the people whereas the Senate represented the states – for the Federalists always a significant distinction."

"The framers of the Constitution wisely understood the absolute necessity of ensuring we the people would have the right to vote for our representative in Congress, and at the same time because they all jealously guarded freedom and liberty, the states must also have equal representation. We the people would have the ability to remove via the ballot box miscreants and scoundrels, while the state legislatures could recall their U.S. senators who acted against the best interests of their states.

"The Senate was supposed to be a sort of check and balance, but that disappeared when U.S. senators began to be voted into office by special interests and mobs demanding more from the people's treasury. The absolute right of the states to equal representation was wiped out when the 17th Amendment was declared ratified April 8, 1913."

In order to protect the rights of the states, the states that ratified the U.S. Constitution all agreed that two senators would be appointed by their state legislators.

I continue to get email from many citizens in several states who are trying to get their state legislators to take up this issue: the non ratification of that amendment and that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate".

The challenge must come from the states because it will never happen via a constitutional amendment which takes years. It will never come from the Outlaw Congress as they have become nothing more than a voter sanctioned criminal syndicate. That decision by the New Jersey Supreme Court was correct even though I wish it could be different. The Tenth Amendment argument didn't fly with them and I don't believe it would with the U.S. Supreme Court either. Should a state decide to sue the national government (after a resolution by the state legislature and forwarded to their Attorney General, I think is the process), it would be an original lawsuit and goes straight to the U.S. Supreme Court:

Art III, Sec. 2:
"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Clause 2 is the ringer: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction." That sentence goes to Clause 1 and parties as to who shall - the operative word being shall - go under the Supreme Court as an original jurisdiction. "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

I know I sound like a broken record, but if U.S. Senators were still appointed by the states, I firmly believe S.510 - the Food Safety and Modernization Act as well as so many other unconstitutional bills shoving "federal" authority down the throats of the states would never make it out of a committee. Unqualified Justices to the U.S. Supreme Court like Elena Kagan and Sonia Sotomayer would never get confirmed.

The top issue with Americans, and justifiably so, is the issue of jobs. There can be no recovery without jobs and "outsourcing" has killed our manufacturing, industrial and manufacturing sectors. Few Americans truly understand the ramifications of the trade deficit and why the treaties below not only have eroded U.S. Sovereignty, but killed millions and millions of American jobs. The current U.S. Senate will do nothing to get us out of those treaties and I can tell you sure as I'm typing this column, the newly minted Speaker of the House, John Boehner, will make sure those 5+ millions jobs never come back to America:

Boehner is a shrewd career politician and SHAME on the people in his district for voting him back into office. His votes over the years has killed so many jobs in the State of Ohio.
Boehner voted for NAFTA, CAFTA, GATT/WTO. Voted YES on promoting free trade with Peru. A vote against American workers. A vote to seriously hand over U.S. Sovereignty under those unconstitutional treaties.
Voted YES on implementing US-Australia Free Trade Agreement. A vote against American workers.
Voted YES on implementing US-Singapore free trade agreement. A vote against American workers.
Voted YES on implementing free trade agreement with Chile. A vote against American workers.
Voted NO on withdrawing from the WTO (2000). A vote against American workers.
Voted Yes on the illegal TARP bail outs for the banking cartel. His vote was a violation of the U.S. Constitution.
Like Pelosi, Boehner will be able to wield tremendous power. He has lost one power play (Ron Paul now the Chairman of the House Domestic Monetary Policies Subcommittee), but don't think for a minute Boehner will abandon his anti-American stand on jobs or protecting the bankers. H.R. 4759 will die December 31, 2010. That bill was to withdraw the U.S. from the unconstitutional NAFTA Treaty. It had 30 Democrat sponsors and one Republican, Ron Paul. Doesn't that tell you in giant letters the Republicans have NO intention of bringing American jobs home? The Republicans had control of Congress from January 1995 - January 2007; eight years with a Republican president. They did NOTHING to bring home American jobs. Instead, buzzards like John Boehner continue to vote for treaties destroying more American jobs.

The same applies to the approximately 11.5 MILLION jobs being held by criminals aka illegal aliens. The Republicans could easily have put the military on the border and built a fence lickety split for just cost of materials. The Army Corps of Engineers and our military are already on the payroll, so there would be no gazillions of dollars for contractors. Our military would also be guarding the heavily invaded border areas while the fence was being built. Instead, the Republicans sat on their well padded backsides and did nothing while thousands and thousands of Americans have been slaughtered by illegals. Thousands of tons of damn drugs smuggled across the border and billions spent by states of the Union to support criminals (free medical, education, stealing American jobs and incarceration) who smuggled themselves across the border. Thank you, Republicans and those Americans who reelected most of them last month.
Many career political who*res who voted to destroy American sovereignty and jobs are still in the U.S. Senate: McCain, Libermann, McConnell, Lugar, Kerry, Hatch, Grassley, Baucus, Leahy and others. No jobs for Americans; dead factories, college graduates working at minimum wage -- if they can even get one; we know tens of thousands of college graduates still have not entered the work force. Worthless degrees; massive student loans.

Thomas DiLorenzo wrote a column back in March on the Seventeenth Amendment:

The Lunatic Left Is Getting Desperate

"The Huffington Post recently (March 18) sunk to a new low by publishing an attack on “Ron Paul and the Tea Parties: States' Rights and the 17th Amendment” by one Leonard Zeskind, a “former” Stalinist rabble-rouser. According to Laird Wilcox, author of The Watchdogs, a book about contemporary political movements, Zeskind began his communistic career of agitprop in the '70s as a “front man” for the “Sojourner Truth Organization” whose stated objective was “to motivate the working classes to make a revolution.” The Organization quoted its role model, Josef Stalin, who insisted on the need for “iron discipline” in agitating for a communist revolution in America.

"According to Wilcox, Zeskind has written favorably about “the value of a grass roots school of communism” that would teach people how to “destroy the marketplace.” He wrote this in a journal called “Urgent Tasks,” a phrase popularized by Vladimir Ilyich Lenin. The Kansas City City Magazine once called Zeskind “elusive, paranoid, near hysterical.” His forte, according to the Wilcox Collection, appears to be “ritual defamation” of his perceived political opponents, i.e., “to call people names in the hope of defaming, discrediting, stigmatizing or neutralizing them...

"Why are the Huffingtonians upset about mere talk of repealing the Seventeenth Amendment? Because the Amendment, which mandated the popular election of U.S. Senators (as opposed to the original system of appointment by state legislators) allows a small cabal of wealthy and influential people to dominate governmental decision-making. Getting elected to the U.S. Senate requires the raising of millions of dollars for television advertising and other elements of modern campaigning, so that senators have long been in the pockets of their major donors from all over the country, and the world, as opposed to the folks back home. Zeskind says this system is “democratic,” but in reality it is the opposite. Reverting back to the original system that was created by the founders would allow the “riffraff” known as the citizens of the sovereign states to exert more influence over their own government. Historically, this system was an important brake on the growth of the central government. This is why the Lunatic Left is increasingly hysterical over the talk about repealing the Seventeenth Amendment as well as nullification, and especially secession."

You can't repeal an amendment that was never ratified and it will not come from the Outlaw Congress as I said above. While the states rights movement and nullification is growing, some things cannot be "fixed" except by direct challenges, in this case, the non ratification of the Seventeenth Amendment. It is in the best interests of the states to move forward with a well thought out challenge because time is growing short. Many states are only in session from January 2011 through April or May. Here in Texas, our legislatures goes into session in January, goes out in 140 days and doesn't come back until January 2013.

Isn't it time the state houses moved for real sovereignty? With 500 new conservative Republicans elected to the 50 state legislatures, isn't there one who will take this all the way? The states are going bankrupt because of unemployment, pensions and lack of tax revenues. Do we want to bring home 5+ million jobs or allow 100 unlawfully seated U.S. Senators continue to destroy our most important job sectors? Please make this an issue with your state representative and senator. If we the people really want to restore our nation to a producing, prosperous country, we will have to flood our state houses with letters (not email). Are we up to it?


[1]  Recall of US Senator Robert Menendez


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Devvy Kidd authored the booklets, Why A Bankrupt America and Blind Loyalty; 2 million copies distributed. Devvy appears on radio shows all over the country. She left the Republican Party in 1996 and has been an independent voter ever since. Devvy is a constitutionalist who believes in the supreme law of the land, not some political party.

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