COMMITTEE TO RECALL MENENDEZ v. WELLS

, they compel the exercise of caution and restraint.

Further, our jurisprudence is replete with instances where we have insisted that "we do not address constitutional issues when a narrower, non-constitutional result is available[.]" United States v. Scurry, 193 N.J. 492, 500 n. 4, 940 A.2d 1164 (2008). This Court time and again has held that it "should not reach a constitutional question unless its resolution is imperative to the disposition of litigation." Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80, 891 A.2d 1202 (2006) (citations omitted); see N.J. Div. of Youth Family Servs. v. S.S., 187 N.J. 556, 564, 902 A.2d 215 (2006) (same); Gac v. Gac, 186 N.J. 535, 547, 897 A.2d 1018 (2006) ("Recently, we restated that a constitutional issue should not be decided `unless its resolution is imperative to the disposition of litigation.'") (citation omitted); State v. Fowlkes, 169 N.J. 387, 396, 778 A.2d 422 (2001) (declining to reach constitutional question based on "rule that `a court should not reach and determine a constitutional issue unless absolutely imperative in the disposition of the litigation'") (citation omitted); In re N.J. Am. Water Co., 169 N.J. 181, 197, 777 A.2d 46 (2001) (same); Am. Trucking Ass'ns, Inc. v. State, 164 N.J. 183, 183, 752 A.2d 1286 (2000) (stating that "when ultimate constitutional issues are especially fact-sensitive the Court should await, before decision, the presentation of a well-developed record") (citation omitted); O'Keefe v. Passaic Valley Water Comm'n, 132 N.J. 234, 240, 624 A.2d 578 (1993) (stating that, "[a]s we have previously explained, courts should not reach constitutional questions unless necessary to the disposition of the litigation") (citations omitted); State v. Zucconi, 50 N.J. 361, 364, 235 A.2d 193 (1967) ("We decline to consider a constitutional question . . . in a case which does not require such a decision."); Ahto v. Weaver, 39 N.J. 418, 428, 189 A.2d 27 (1963) (stating that "constitutional questions will not be resolved unless absolutely imperative in the disposition of the litigation") (citation omitted); State v. Salerno, 27 N.J. 289, 296, 142 A.2d 636 (1958) ("[W]e should not undertake to resolve a constitutional challenge if the litigation may be disposed of without reaching the fundamental issue[.]").

The operative rule is stated plainly:

Generally, courts will abjudicate the constitutionality of legislation only if a constitutional determination is absolutely necessary to resolve a controversy between parties. This doctrine of "strict necessity," articulated by the United States Supreme Court in Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947), is well-recognized. Thus, in Donadio v. Cummingham [Cunningham], 58 N.J. 309, 325-26, 277 A.2d 375 (1971), we acknowledged that "a court should not reach and determine a constitutional issue unless absolutely imperative in the disposition of litigation."

[ Bell v. Twp. of Stafford, 110 N.J. 384, 389, 541 A.2d 692 (1988) (citations omitted).]

In addition, the principle of judicial restraint goes hand-in-hand with the core notion that constitutional questions should be avoided unless "absolutely imperative." In the context of the constitutionality of a statutory enactment, this Court recently noted that:

As Chief Justice Hughes explained, our judicial restraint springs from a "seemly respect for the act of a co-equal branch of government, as well as for the public interest in the effective operations of government — both elements invoking a `broad tolerance' in considering a charge of constitutional evasion or excess."

[ Abbott v. Burke, 196 N.J. 544, 550, 960 A.2d 360 (2008) (quoting N.J. Ass'n on Corr. v. Lan, 80 N.J. 199, 218, 403 A.2d 437 (1979) (citations omitted)).]

Likewise, we are commanded by the precept that

even if we entertained a doubt of constitutionality (which we do not), we would be equally bound, by judicial precedents since the earliest days of our nation, to eschew judicial interference with the legislative will. Chief Justice John Marshall indeed counseled the courts to avoid, where at all possible, confrontation with constitutional issues. Sitting at circuit in Ex parte Randolph, 20 F.Cas. 242, 254 (C.C.D.Va. 1833) (No. 11, 558), he stated:

No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of a legislative act. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed.

[N.J. Ass'n on Corr., supra, 80 N.J. at 218, 403 A.2d 437 (emphasis supplied).]

See also Lewis v. Harris, 188 N.J. 415, 460, 908 A.2d 196 (2006) (chiding dissent for being "willing to part ways from traditional principles of judicial restraint to reach a constitutional issue that is not before us").

The time-honored principle of judicial restraint is moored firmly to the commonsense notion that "while [the] unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon [a court's] own exercise of power is [its] own sense of self-restraint." United States v. Butler, 297 U.S. 1, 78-79, 56 S.Ct. 312, 325, 80 L.Ed. 477, 495 (1936) (Stone, J., dissenting). And, Justice Pollock has aptly and pithily summarized the logic that should animate and inform the exercise of judicial restraint; he explained: "Sometimes, the hardest decision is the decision not to decide. Yet the decision not to decide is at the core of judicial restraint." De Vesa v. Dorsey, 134 N.J. 420, 443, 634 A.2d 493 (1993) (Pollock, J., concurring). An object lesson of the price to be paid for disregarding that irrefutable logic arose a mere decade ago, when this country suffered through repeated — and, some persuasively claim, gratuitous — convulsions from a disputed presidential election. In that charged context, the wise and cautionary note sounded by the Chief Justice of the Florida Supreme Court bears repeating here:

[j]udicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters — not by judges. We must have the self-discipline not to become embroiled in political contests whenever a judicial majority subjectively concludes to do so because the majority perceives it is "the right thing to do." Elections involve the other branches of government. A lack of self-discipline in being involved in elections, especially by a court, of last resort, always has the potential of leading to a crisis with the other branches of government and raises serious separation-of-powers concerns.

[ Gore v. Harris, 772 So.2d 1243, 1264 (Fla.) (Wells, C.J., dissenting), rev'd sub nam., Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (emphasis supplied).]

We ignore that wisdom and caution at our peril.

Those considerations — the reasons that undergird the exercise of judicial restraint — appropriately and reasonably motivated the Appellate Division to stay its hand and forgo declaring needlessly that a provision of our State Constitution duly adopted by our electorate, together with its implementing legislation, was now, seventeen years after its adoption, somehow unconstitutional. Yet, nowhere in the majority's opinion is there any discussion whatsoever of the reasons or rationale by which the Appellate Division elected to bypass ruling on the underlying constitutional question that the majority instead decides to tackle. More to the point, nowhere does the majority explain why that simple, straightforward, readily understandable and time-honored resolution ought to be disregarded.

In support of its apparent belief that the issue it reaches is of such magnitude that it must be addressed, the majority discusses the two reasons offered by the Senator. First, the majority notes that requiring him to participate in a recall will divert his attention from his important duties, pointing out that his "coordination and oversight of such efforts would come at the expense of his or her congressional responsibilities." Ante at 100, 7 A.3d at 732. Second, the majority warns that "[t]he recall initiative also injects uncertainty and instability into the State's electoral scheme[.]" Ibid. Neither, however, withstands scrutiny. All elected officials are products of the electoral process; as politicians, they live and die by the electoral process and, more importantly, the will of the people. The Senator, like all officials elected since 1995, ran for and assumed office on notice that his election was subject to recall. Suggesting that recall will diminish his ability to serve or create uncertainty would counsel against its use as to any elected official, a view well out of step with the will of the people.

Moreover, were we to agree with the claim that subjecting an elected official to the sanction of the people somehow diminishes him or her, then an elected official could not be charged with a crime or subjected to a civil lawsuit while in office. But as the United States Supreme Court has held, even civil litigants are not precluded from pursuing claims against elected officials, see, e.g., Clinton v. Jones, 520 U.S. 681, 705-06, 117 S.Ct. 1636, 1650, 137 L.Ed.2d 945, 968 (1997) (categorically rejecting stay of proceedings in civil lawsuit against the President of the United States), a conclusion that runs contrary to the concerns expressed by the majority.

In our view, the confluence of relevant considerations — the principle commanding that we avoid a constitutional question unless indispensable to the outcome and the salutary doctrine of judicial restraint — authoritatively counsels that we, like the Appellate Division, stay our hand and allow the recall process to go forward. We so conclude by pragmatically recognizing the daunting task facing plaintiff: securing, within the statutory time period, over 1.3 million signatures, that is, over four thousand signatures per day for 320 consecutive days, on a petition seeking the recall of Sen. Menendez.

Section 5 of the Uniform Recall Election Law, N.J.S.A. 19:27A-5, requires that a recall petition must be "signed by a number of registered voters of the jurisdiction of the official sought to be recalled equal to at least 25% of the persons registered to vote in that jurisdiction" on the immediately preceding general election; Section 10(a)(1) of the Uniform Recall Election Law, N.J.S.A. 19:27A-10(a)(1), provides that, if the person sought to be recalled is a United States Senator, those signatures must be collected within 320 days "from the date that the recall petition receives final approval for circulation from the recall election official[.]" According to the State of New Jersey's official tallies, as of the year 2009, there were 5,223,047 registered voters in the State. See http://www.state.nj.us/education/data/vote/10/ Registeredvotertotalswitholdcalculation.pdf. Twenty-five percent of that number is slightly over 1.3 million.
It is ironic that, although over 1.3 million signatures now would be required to seek the recall of Sen. Menendez, he was elected to office in 2006 by less than that number; according to the New Jersey Department of State, the number of registered voters in 2006 was 4,836,401, see http://www.state.nj.us/state/elections/2006resuhs/06-primaryelection/ 06-primary-regs-ballots-cast-rev.pdf, and Sen. Menendez garnered 1,200,853 votes, see http://www.state.nj.us/stat/elections/ 2006results/06generalelection/2006-official-senate-tallies.pdf, or 24.8% — fewer than 25% — of the eligible voters in that election.

Respecting the will of New Jersey's citizens, as reflected in our Constitution, insures that, in the words of Professor Burns, we retain "the Constitution as the people's charter, not a lawyer's contract." James MacGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court 254 (2009). Addressing the question presented in this appeal with the humility these circumstances requires is consistent with Thomas Jefferson's well expressed words, that there is "no safe depository of the ultimate powers of society but the people themselves; and if we think them not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education." Letter from Thomas Jefferson to William C. Jarvis (Sept. 28, 1820). Our failure to follow that simple guide will make prophetic once again Abraham Lincoln's very public and focused attack on what was then viewed as a stark example of judicial tyranny:

the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal

[Abraham Lincoln, First Inaugural Address (Mar. 4, 1861) (emphasis supplied) (commenting on United States Supreme Court's decision in Dred Scott v. Sandford, 60 U.S. 393, 19 How. 393, 15 L.Ed. 691 (1857)).]

In short, in the circumstances presented in this appeal, there is no need to reach the question of whether New Jersey's recall provisions — either constitutional or statutory — concerning United States Senators elected by the people of New Jersey to represent the people of New Jersey run afoul of the United States Constitution. Therefore, the decision of the Appellate Division exercising judicial restraint and commanding that the ministerial functions in respect of the recall process required of state officials be carried out should be affirmed.

III.

Tasked with having to prove a negative, namely, that the power to recall does not exist, and burdened by the absence of any clear evidence that its premise is either historically accurate or analytically sound, the majority resorts to the technique of cataloguing separate words and events, as if they represented a unified and coherent whole. In the process, there are references to obscure moments in history, elevation of dicta to lofty heights of predictive certainty, and reliance on information both extrinsic and irrelevant, all of which is held together by an insistence that boils down to the proposition that if a right cannot be found expressly, it must not exist at all. Shoring up that endeavor are dismissive rejections of any and all evidence that detracts from that theme or suggests that it is in error.

In the end, the majority hopes to prove that a Senator is elected for a term and that once chosen he serves that term to its end, without regard for whether his continued service fulfills the will of the people. Because the Constitution's text lacks a direct expression that the people have the right to recall him, the majority concludes that the people are utterly powerless. But that reflects a policy choice, one that cloaks in total immunity anyone who is elected, by even the tiniest percentage of the voters, without regard for what he might do to merit recall. It protects him in spite of the fact that, under our Constitution and our statute, recall could only be accomplished if supported by the cries of an overwhelming number of citizens with contrary views.

That policy preference is a rejection of the alternate choice, one that recognizes that the power of the people to select by whom they shall be governed is far superior to the wishes of an individual, or a political party, or the whole of the body of the Senate. Our great nation survives because it is built on the premise that the federal government is a limited one, with only those powers that the people have chosen to vest in it and, more to the point, because it rests on the fundamental notion that power resides in the people unless and until they grant it elsewhere. Lacking any evidence that the people have ceded their power of recall by explicit declaration, the majority tries to find in their silence support for its wholly-antidemocratic outcome. For us, the sound of more than a million voices demanding the accountability that recall protects should not so willingly be silenced by this Court.

A.

Much of the majority's opinion is devoted to an exhaustive compilation of historical references designed to demonstrate that the power to recall, which is nowhere mentioned in the text of the Federal Constitution, does not exist. Those materials consist of delegates' notes describing speeches, debates, and proposals of various kinds offered either during the Constitutional Convention itself or during some of the ratifying conventions; portions of selected Federalist Papers; and references to amendments offered or discussed at various stages that would have made the recall right explicit. The aggregate is then used to advance the argument that because the right of recall was discussed but not expressly included in the Federal Constitution, it must have been rejected, obliterated, or deleted.

And yet, nowhere in that pile of information is there anything that approaches the level of clarity on the question that the majority hopes to prove. Nowhere in the lengthy recounting of the exchange of viewpoints that inform any robust debate on a matter as important as the creation of a new Constitution is there anything that suggests that silence in that document equates with the extinction of a historically recognized right of the people.

On the contrary, the fundamental principles on which the nation was founded, which are embodied in the Federal Constitution itself, which were championed by the Founding Fathers we today revere, and which are infused throughout the decisions of this Court and of the United States Supreme Court, make manifest that the majority's conclusion not only is fundamentally flawed, but that it flies in the face of all we hold dear as citizens of this proud nation.

One could, of course, engage in a point-by-point refutation of each of the sources on which the majority relies, but to do so would be to make the same mistake that the majority does, missing the bigger picture that the mass of materials, viewed individually, inevitably obscures. Instead, rather than engaging in what would be a tedious response to the majority's effort to assemble the best case it can muster for its conclusion, we can, with a few examples, illustrate the essential bankruptcy of the majority's thesis.

The power of recall has deep historical roots, blossoming from fundamental notions of popular sovereignty, that is, that all power resides with the people and that it is only by their consent that the people may be governed. That doctrine finds its most familiar expression in the Declaration of Independence:

That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

But its arrival on our shores came far earlier, for themes of popular sovereignty are found in the earliest governing compacts created by the brave souls who came here. The pilgrims, in the Mayflower Compact of 1620, agreed to "enact, constitute and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient." Two early colonial constitutional compacts, both agreed upon by settlers in 1639, also give voice to the doctrine. See Agreement of the Settlers at Exeter in New Hampshire (Aug. 4, 1639) (agreeing to "combine ourselves together to erect and set up among us such Government as shall be to our best discerning agreeable to the Will of God."); Fundamental Agreement, or Original Constitution of the Colony of New Haven, pmbl. (June 4, 1639) [hereinafter Fundamental Agreement] ("[A]ll the free planters assembled together in a general meeting, to consult about settling civil government, according to God."). The right of recall is at least as ancient; although not explicit in either of those early constitutions, it was discussed among the free planters as a way to keep in check the potential excesses of those appointed to positions of power. See Fundamental Agreement, supra, Query 5. That the doctrine of popular sovereignty is infused in our deepest historical traditions cannot be ignored.

B.

Because the United States Constitution says nothing about the right of the people to recall a Senator, the majority begins with self-evident proclamations about the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the corollary proposition that a conflicting state statute or constitutional provision must yield. As none of that is particularly useful or enlightening, we turn to a review of the Constitution's three provisions addressing the election of Senators.

To be sure, we have long held that where our Constitution provides protections more expansive than those embodied in the Federal Constitution, we are not constrained by the limitations that the latter would impose. State v. Hunt, 91 N.J. 338, 345-46, 450 A.2d 952 (1982) (quoting Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv. L.Rev. 1324, 1367 (1982)). Although perhaps one might argue that there is something inherently inconsistent between that logic and the majority's stated devotion to the federal text as it applies here, we ordinarily perceive no such disconnect.

The first, and most directly relevant, is Article I, Section 3, Clause 3. Often referred to as the Qualifications Clause, it lists only three such qualifications, requiring that one who seeks election to the Senate be at least thirty years old, have been a citizen for at least nine years, and be an inhabitant of the State which "he shall be chosen" to represent. The second relevant provision is found in Article I, Section 4, Clause 1, which is often referred to as the Elections Clause or the Time, Place and Manner Clause. That provision creates a mechanism through which, subject to a limited override right granted to Congress, each state's legislature is empowered to make its own regulations governing the election of Senators. The third clause that is relevant to the topic of election of Senators is Article I, Section 5, Clause 2. That clause permits the Senate to "punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member." None of those clauses purports to deprive the people of a state of their right to create a mechanism for recall and none has been interpreted to do so.

See also U.S. Const. amend. XVII (providing that "[t]he Senate of the United States shall be composed of two Senators from each State, elected by the people thereof"); infra at 169-71, 7 A.3d at 775-76.

In one of the few precedents from the United States Supreme Court cited in this appeal, two of these provisions were considered in the context of an effort in Arkansas to impose a term limit. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). Rejecting the argument of the statute's supporters that a term limit was simply a permissible regulation of the time, place, and manner of elections, the Court's majority focused instead on the Qualifications Clause. Id. at 828-35, 115 S.Ct. at 1866-70, 131 L.Ed.2d at 915-20. The majority found the statute unconstitutional because imposing a term limit amounted to the addition of a qualification, namely, that a Senator not have previously served too many terms. Id. at 831, 115 S.Ct. at 1868, 131 L.Ed.2d at 917. By extension, the United States Supreme Court subsequently considered and struck down Missouri's effort, through an amendment to its constitution adopted in the wake of the decision in U.S. Term Limits, that purported to require its congressmen to work for a federal term limits amendment. See Cook v. Gralike, 531 U.S. 510, 525-26, 121 S.Ct. 1029, 1039-40, 149 L.Ed.2d 44, 57-58 (2001).

Although the only question before the Court in U.S. Term Limits was whether the imposition of a term limit would violate the Qualifications Clause, both the majority and the dissenting opinions, inexplicably, included a reference to a presumed absence of a recall right. See U.S. Term Limits, supra, 514 U.S. at 810 n. 20, 115 S.Ct. at 1858 n. 20, 131 L.Ed.2d at 904 n. 20; id. at 890, 115 S.Ct. at 1896, 131 L.Ed.2d at 953 (Thomas, J., dissenting). The majority of this Court relies heavily on those comments, as a result of which we address them briefly.

Not only are the references in both opinions dicta, but it is noteworthy that neither of them includes the sort of detailed and scholarly analysis that ordinarily accompanies a pronouncement of such magnitude. In the majority opinion, recall is mentioned only in a footnote attached to a discussion of the ratification debates about the danger of permitting the states to fix congressional compensation. See id. at 810 n. 20, 115 S.Ct. at 1858 n. 20, 131 L.Ed.2d at 904 n. 20 (citing 1 Records of the Federal Convention of 1787 20, 217 (M. Farrand, ed. 1911)) (hereinafter Farrand). In Justice Thomas's dissent, recall is similarly confined to the discussion of the same point and, uncharacteristically, is not supported by citations to the historical record. See id. at 890, 115 S.Ct. at 1896, 131 L.Ed.2d at 953 (Thomas, J., dissenting) (observing that "a power of recall [was] denied to the States when [the Framers] specified the terms of Members of Congress"). Those passing references to recall simply do not demonstrate that, were the question squarely presented, either the majority or the dissenters would find the matter so easily disposed of.

As one scholar has noted, analyzing recall as an added, and therefore unconstitutional, qualification is fundamentally flawed, because it

ignore[s] the crucial distinction the Framers made between the power to expel and the power to exclude Members of Congress. Exclusion of a member by qualification results in a candidate being refused a seat based upon the candidate's failure to meet the stated qualification. Nothing in any state recall statute, however, prohibits a person from being elected and seated, so long as the candidate meets the age, residency, and inhabitancy "qualifications" set forth in Article I. A recall election operates only after a seat is occupied — it is in the nature of an expulsion from office, not an additional "qualification" for office.

[Timothy Zick, The Consent of the Governed: Recall of United States Senators, 103 Dick. L.Rev. 567, 588 (1999) (footnote omitted).]

The majority of this Court today avoids, as it must, confronting the fact that adding a qualification like a term limit is not only directly contrary to the language of the Qualifications Clause, but is antithetical to the principles espoused by even so ardent a champion of the Federal Constitution as Alexander Hamilton. In his timeless words, uttered during the constitutional debates, it is a fundamental principle of our representative democracy "that the people should choose whom they please to govern them." 2 Debates on the Adoption of the Federal Constitution 257 (J. Elliot ed., 1836) (hereinafter Elliot).

James Madison espoused precisely that principle as well, cautioning against unnecessary qualifications that might "fetter the judgment or disappoint the inclination of the people," as the United States Supreme Court noted. U.S. Term Limits, supra, 514 U.S. at 819, 115 S.Ct. at 1863, 131 L.Ed.2d at 910 (quoting The Federalist No. 57, at 351 (James Madison) (Clinton Rossiter ed., 1961)). Adding such a limitation, which bars a potential candidate from the ballot entirely because he had served an excessive number of terms in office, directly infringes upon the people's right. Id. at 819-20, 115 S.Ct at 1862-63, 131 L.Ed.2d at 910-11.

But what the majority today fails to see is that recall does not present a similar danger; on the contrary, not only does recall not deprive the people of their choice, but it advances that very right. It does so by permitting those who find the current occupant of the seat unworthy, if they are of sufficient number and determination, to attempt to choose another. And for those who find the current occupant of the office to their liking, their choice is safeguarded by numerous options guaranteed them at every step. They are free to refuse to sign petitions, thus making an already intentionally high hurdle insurmountable to the petitioners; they may at a recall election itself vote so that their candidate, the subject of the petition, is not recalled from that office; or they may vote to return him to office at the next election if they so choose. To suggest that creating the possibility, however remote, of a recall petition or election, is the unconstitutional addition of a qualification contorts the principles of choice and subverts the free expression of the consent of the governed.

The majority advances a second argument based on Article I, Section 3, asserting that because Clause 1 refers to six years, it creates a fixed and immutable period of time which cannot be altered. That is, because the clause states that Senators shall be selected, in the case of the original constitutional language, by the states' legislatures and shall be "chosen . . . for six years," the argument is that this creates a fixed term of office. Of course, even for the majority the term of six years is not actually an immutable one, for they concede that vacancies may occur either by death or through the action of the Senate itself should it decide to expel a member. See U.S. Const. art. I, § 5, cl. 2.

The argument includes a like argument that because the Seventeenth Amendment, which changed the method of selection to direct election by the people of each state, also provided that Senators shall be "chosen . . . for six years," it reinforced the fixed term principle. See ante at 113-16, 7 A.3d at 740-42. We discuss the historical significance of the Seventeenth Amendment, infra at 167-71, 7 A3d at 775-76.

In support of its position that, short of death or expulsion, the seat remains one that can only be occupied for an uninterrupted six years, the majority again finds refuge in the words of the United States Supreme Court. See ante at 105-06, 7 A.3d at 735 (quoting Burton v. United States, 202 U.S. 344, 369, 26 S.Ct. 688, 694, 50 L.Ed. 1057, 1066 (1906)). There, the Court said as much, commenting that "[t]he seat into which [a person] was originally inducted as a Senator . . . could only become vacant by his death, or by expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its constitutional powers." Burton, supra, 202 U.S. at 369, 26 S.Ct. at 694, 50 L.Ed. at 1066. But again, as the majority concedes, ante at 105-06, 7 A.3d at 735, the quote is dicta, because the issue in Burton was whether a Senator could void a federal conviction so that it would not interfere with his service in the Senate. See Burton, supra, 202 U.S. at 365-70, 26 S.Ct. at 692-94, 50 L.Ed. at 1064-66. The United States Supreme Court made its observation while rejecting the argument that the conviction disqualified him, noting that it "did not operate, ipso facto, to vacate the seat of the convicted Senator, nor compel the Senate to expel him or to regard him as expelled by force alone of the judgment." Id. at 369, 26 S.Ct at 694, 50 L.Ed. at 1066.

Nothing in Burton's holding suggests, however, that the Court intended to limit the ways in which a seat may be vacated. Although its list is prefaced by the word "only," the Court simply did not create an exhaustive list. After all, a seat could become vacant if a Senator retired prior to the end of his term, was elected to the office of President or Governor, or was appointed to the cabinet or to a similar post. Since the Court did not mention any of those possibilities, it hardly follows that it intended its list to foreclose all others, including the possibility of recall, an issue that the Court was not called upon to consider. Moreover, in light of the fact that the Burton decision predates the 1913 ratification of the Seventeenth Amendment, its value as a predictive guide, once the power to elect reverted from the several state legislatures to the people, is limited.

Turning to the other provisions in the Federal Constitution that are directly relevant to the election and service of Senators, the majority again seeks to prove a negative. It proclaims that the Elections Clause "offers no support for recall," ante at 116, 7 A.3d at 743, but reaches that conclusion by engaging in reasoning that is, in the end, merely circular. Quoting still more dicta, the majority argues that the clause only permits states to affect "the mechanics of congressional elections," namely, their time, place, and manner. Foster v. Love, 522 U.S. 67, 69, 118 S.Ct. 464, 466, 139 L.Ed.2d 369, 373 (1997) (citation omitted). The majority relies on the United States Supreme Court's reasoning that the clause "grant[s] States authority to create procedural regulations," U.S. Term Limits, supra, 514 U.S. at 832, 115 S.Ct. at 1869, 131 L.Ed.2d at 918, overlooking the fact that recall, by affecting the time or manner of an election, could in theory meet that test. More important, however, the majority's reliance on the clause's silence is but a further example of its fundamentally erroneous view that the Federal Constitution must permit recall explicitly or not at all.

The third of the clauses that directly relates to Senators and their terms of office is Article I, Section 5, through which the Senate has been given the authority to expel a member. Apparently relying on the United States Supreme Court's rather limited reading of that section, the majority finds that it must therefore preclude other mechanisms, like recall. In the principal decision about the scope of Section 5, the United States Supreme Court did not address the power to expel, but considered the power of Congress to refuse to seat a duly elected Representative. In short, the Court concluded that the power granted to Congress in Section 5 was limited by the three "qualifications" for members of the House of Representatives established by Article I, Section 2, Clause 2. See Powell, supra, 395 U.S. at 519-22, 89 S.Ct. at 1962-64, 23 L.Ed.2d at 515-17. The Court reasoned that any contrary analysis would empower Congress to thwart the will of the people authorized to elect their Representative "as much by limiting whom the people can select as by limiting the franchise itself." Id. at 547, 89 S.Ct. at 1977, 23 L.Ed.2d at 531.

Article I, Section 5, Clause 2, of course, only grants Congress the authority to expel a member, apparently for violations of its Rules or for disorderly behavior, as long as it does so by a two-thirds vote. Nothing in its language, however, suggests that the clause has any relevance to whether the people of a given state retain the authority to recall. Indeed, the power to expel has neither a logical nor a historical link to the power to recall; instead it was included as a rather ordinary method for internal discipline in any deliberative body. See William Rawle, A View of the Constitution of the United States 48 (2d ed. 1829) (explaining that "this power . . . is incidental to the nature of all legislative bodies."). Even so, Justice Story warned against its abuse, commenting that the two-thirds majority was added as a safeguard:

And as a member might be so lost to all sense of dignity and duty as to disgrace the house by the grossness of his conduct, or interrupt its deliberations by perpetual violence or clamor, the power to expel for very aggravated misconduct was also indispensable, not as a common, but as an ultimate redress for the grievance. But such a power, so summary, and at the same time so subversive of the rights of the people, it was foreseen, might be exerted for mere purposes of faction or party, to remove a patriot or to aid a corrupt measure; and it has therefore been wisely guarded by the restriction, that there shall be a concurrence of two-thirds of the members to justify an expulsion.

[1 Joseph Story, Commentaries on the Constitution of the United States § 837 (5th ed. 1891) (hereinafter Story).]

In short, the Constitutional Clauses that relate to Senators, their selection, and their service, do not explicitly, or even implicitly, address the right to recall them; nothing in any of those clauses therefore precludes its exercise.

C.

Searching for support that it cannot find in the three clauses that relate most directly to the subject of Senators and their terms of office, the majority reverts to a discussion of events that took place during the debates both at the Constitutional Convention itself as well as during selected ratifying conventions. In large measure, that review consists of quoting at length comments made by one delegate or another opining on the right of recall, its benefits, and the wisdom of explicitly including it, and on reasons why amendments on the subject were or were not being offered. See ante at 106-12, 7 A.3d at 735-40. Discussion and comment about recall in general, of course, would be expected, given that the right was expressly conferred on the several states as part of the Articles of Confederation. See Articles of Confederation art. V, ¶ 1. And while some of those speeches suggest that the subject was open to debate, nothing approaches the sort of outright rejection of the right, so fundamental to the power that rests in the people, as the majority would have one believe. That there was discussion is inescapable; that the power is not explicitly mentioned is plain. But the notion that the right therefore does not exist is not proven by those historical observations.

The relatively limited discussions about recall must be understood in their historical context. In creating the new government, the Framers saw much in their experience of governance under the Articles of Confederation that had impeded the creation of unity and cohesion. That document's loose joining together of states with strong individual characters had failed to create anything approaching a cohesive whole and the ability of one or another of the separate states to stymie progress made future unity impossible. See Alfred H. Kelly Winfred A. Harbison, The American Constitution: Its Origins and Development 99-101 (5th ed. 1976). Thus, the effort to create a stronger, federal system required significant change. The extensive debates while the Constitution was being drafted about the structure of the Congress epitomize the core concerns. Disputes among the states about how to balance representation between and among populous and sparsely-settled states which spawned the Virginia Plan, favoring the former, and the New Jersey Plan, which protected the latter, dominated the debate. See id. at 114-24; 1 Samuel Eliot Morison, Henry Steele Commager William E. Leuchtenberg, The Growth of the American Republic 246-48 (6th ed. 1969) [hereinafter Morison Commager].

Emblematic of that debate was the battle over the character of the upper house, and its method of selection. Early on during the Constitutional Convention, Edmund Randolph of the Virginia delegation, proposed what became known as the Virginia Plan, a bluntly nationalistic blueprint most likely authored by Madison. See Catherine Drinker Bowen, Miracle at Philadelphia, The Story of the Constitutional Convention 13-15, 37-39 (1986). It included a plan for the election of the upper house:

5. Resold, 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; to hold their offices for a term sufficient to ensure their independency, to receive liberal stipends, by which they may be compensated for the devotion of their time to public service; and to be ineligible to any office established by a particular State, or under the authority of the United States, except those peculiarly belonging to the functions of the second branch, during the term of service, and for the space of after the expiration thereof.

[1 Farrand 20-21.]

Although a spirited debate erupted over most of the provisions of the Virginia Plan, see, e.g., Kelly Harbison, supra, at 113-14, as Justice Story later recounted, the part of the Virginia resolution that would have delegated the power to elect the Senate to the House "met . . . with no decided support, and was negatived, no State voting in its favor, nine States voting against it, and one being divided." 1 Story § 703. During the debate about the creation of the Senate, other ideas surfaced, including John Dickinson's suggestion "that the members (of the [second] branch ought to be chosen) by the individual Legislatures," which was seconded by Roger Sherman, 1 Farrand 150; James Wilson's argument that they be popularly elected, id. at 58, 151; and George Read's proposal "that the Senate should be appointed by the Executive Magistrate out of a proper number of persons to be nominated by the individual legislatures," id. at 151.

The majority points to the fact that the Virginia Plan also included an explicit recall provision relating to members of the "first branch" and that this proposal was voted down as evidence that the right to recall Senators was rejected. Ante at 107, 7 A.3d at 736. The "first branch" to which the quote refers, however, is not the Senate at all, but instead the body that became the House of Representatives. As such, the majority overlooks the significance of the short terms granted to members of the House, which would make recall of little practical value. Moreover, it overlooks the fact that the debate about the creation of the Senate was more concerned with preventing the states' legislatures from interfering with the operation of the central government, a practice that had doomed the Articles of Confederation to failure. See 1 Morison Commager, supra, at 243-44.

Elsewhere, the role of "Executive Magistrate" is referred to as the "National Executive," but both are references to what became the office of the President. See 1 Farrand 152.

Following extensive debates, Dickinson's proposal resurfaced and the convention overwhelmingly chose to vest the power to select members of the Senate in the states' legislatures. Id. at 156-57. As Justice Story noted, that choice reflects, in part, an effort to create a connection between the state and federal governments that would result in a harmonious system, "and that it would increase public confidence by securing the national government from undue encroachments on the powers of the States." 1 Story § 704. In the end, the limited discussions about recall, a right vested in the legislatures under the Articles of Confederation, were part of a debate about how much power to permit those bodies to exercise, and not about whether the right remained vested in the people.

D.

The draft of the Constitution that left the convention and made its way through the ratification process was certain to face more debate. And it is in that context that George Washington's letter to his nephew Bushrod Washington, with its explicit assurance that the men who would be elected to the national governing body would be subject to recall, must be viewed. George Washington, after all, had presided over the convention, 1 Farrand 3, had heard the extended debates, and had participated with the others when the convention met as the Committee of the Whole, see, e.g., Bowen, supra, at 40-41. It is particularly telling that the majority dismisses this document as merely "a private letter to a family member," ante at 112, 7 A.3d at 740, because that backhanded reference overlooks, or perhaps proceeds in ignorance of, several important historical facts that bear on the letter's significance.

For one thing, Bushrod Washington was one of the few men at the time who had graduated from college, having earned his degree from the College of William and Mary in 1778, and who had pursued the study of law both there and in Philadelphia. Lawrence B. Custer, Bushrod Washington and John Marshall: A Preliminary Inquiry, 4 Am. J. Legal Hist. 34, 36-37 (1960). His study of law was interrupted by his service in the Continental Army, which was notable for his presence at Yorktown when Lord Cornwallis surrendered. The Supreme Court Justices: Illustrated Biographies, 1789-1993 52 (Clare Cushman ed., 1993).

It is even more significant that, in 1787, the year the Father of our Nation was writing to him, Bushrod Washington had been elected to serve in the Virginia House of Delegates and, within the year, was selected to serve among the delegates to the Virginia ratifying convention. Custer, supra, 4 Am. J. Legal Hist, at 39. He went on to become the first professor of law at the University of Pennsylvania, id. at 37, and he served on the United States Supreme Court for thirty-one years, Illustrated Biographies, supra, at 54, where he was so close an ally and confidante of Chief Justice John Marshall that they were referred to as "one." Herbert A. Johnson, Symposium: Bushrod Washington, 62 Vand. L.Rev. 447, 448 (2009) (Symposium) (citing Letter to Thomas Jefferson from Justice William Johnson (Dec. 10, 1822), reprinted in part in Donald G. Morgan, Justice William Johnson, the First Dissenter 181-82 (1954)). And it was Justice Bushrod Washington, during his tenure on the United States Supreme Court, who penned words that the majority would be well advised to consider today:

[i]t is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt.

[ Ogden v. Saunders, 25 U.S. (12 Wheat) 213, 270, 6 L.Ed. 606, 625 (1827).]

That George Washington would write his assurance that there remained the right to recall in the Constitution then being proposed for ratification; that he would write those words to one not only his nephew and his eventual heir, see Johnson, supra, 62 Vand. L.Rev. at 451, but to one who was soon to play his own role in the ratification process, hardly merits such derision from this Court.

The majority includes an exhaustive listing of references to recall made during the various ratifying debates, ante at 109-12, 130-31, 7 A.3d at 738-39, 751, reasoning that because the states did not secure the expression of that right, it ceased to exist. But that discussion overlooks the real focus of the debates. As an example, the majority points to the debate in the New York ratifying convention, without recognizing that the discussion about the resolution on recall was actually part of the debate about the questionable wisdom of delegating the power to elect members of the Senate to the state legislatures in the first place. As to that, Mr. Livingston lamented:

The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.

[2 Elliot 292-93.]

Hamilton advocated, as always, for a strong federal government, in which Senators, in particular, would be free from the sort of "vassalage and dependence" that recall might entail; but there, too, his focus appears to have been on a desire to divorce them from the sort of political intrigue that they would suffer were the power of recall placed into the hands of the several state legislatures, rather than an indictment of, or even a comment on, the residual power of the people to do so. Id. at 303. Moreover, the majority's reliance on what transpired in New York overlooks the fact, openly discussed during the same debate, that by that time their views hardly mattered, because nine states had already voted to ratify. 2 Elliot 322, 324-25.

Although Hamilton is greatly revered today, one well-respected treatise has pointed out that his idea for the shape of the future United States was more like a "plan for a centralized unitary constitution that would have made the states mere counties — a plan that revealed how completely Hamilton failed to grasp the value of federalism." 1 Morison Commager, supra, at 248.

The references to recall in the ratifying debates in other states are similar in character, some reflecting a speaker's general view that the Constitutional Convention had exceeded its bounds and that a continuation of the confederation was preferable. For example, the majority's reliance on Luther Martin's speeches and his letter, see ante at 109-10, 7 A.3d at 738, reflects an interesting choice of authority. Described by some historians as the "wild man" of the constitutional convention, see Bowen, supra, at 119, and notable for having engaged in a two-day long speech in which he "harangued" all opposition, see Kelly Harbison, supra, at 120; 1 Farrand 437-42, he believed that the convention was limited by its charge to mere amendments to the Articles of Confederation, and modest ones at that.

An extreme adherent of the principle of state sovereignty, see Bowen, supra, at 119, he so objected to the obvious efforts of Hamilton and Madison to create an entirely new form of government that he broke the vow of silence to rail against them publicly. He planned to refuse to sign the constitution when it was finalized, see id. at 248-49, and worked tirelessly to defeat it in the days leading to the Maryland ratifying convention. His observations about recall, however, were a minute fraction of the arguments he advanced in that effort.

A recent biographer notes that "Martin was unable to address the Maryland ratifying convention" having been struck by laryngitis. Bill Kauffman, Forgotten Founder, Drunken Prophet 108 (2008).

Likewise, the majority's lengthy listing of comments about recall are largely attributable to men who opposed the constitutional scheme being proposed in general. Patrick Henry, for example, refused to participate in the convention, "saying that he `smelt a rat,'" Kaufman, supra, at 17 (quoting from Henry Mayer, A Son of Thunder: Patrick Henry and the American Republic 370 (2001 ed.)), and George Mason refused to sign the final document, Kelly Harbison, supra, at 137-38. As with Martin, their observations about recall are but a small fragment of their views, and the majority's reliance on those few comments miss the larger, more appropriate, context entirely. The majority's reference to Rhode Island is similarly curious, given that it refused to send any delegates to Philadelphia. 1 Story § 275; 1 Morison Commager, supra, at 244.

Much of the debate in the ratifying conventions centered on the absence of an expression of fundamental rights of the people, a shortcoming that some of those conventions proposed to address through the addition of a bill of rights. See 1 Morison Commager, supra, at 259-60. We need devote little attention to that debate, except as it relates to two provisions that eventually became the Ninth and the Tenth Amendments. Understanding the roles that those guarantees were designed to play sheds light on the question of the recall right and the constitutional authority of the voters of this state to assert that right through an amendment to our Constitution. The majority discusses the Tenth Amendment, see ante at 125-27, 7 A.3d at 748-49, but because recent scholarship suggests that it was designed to complement the Ninth Amendment, see Thomas B. McAffee, A Critical Guide to the Ninth Amendment, 69 Temp. L.Rev. 61, 83 (1996), both inform the debate before this Court.

The two amendments provide:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [Ratified December 1791]

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [Ratified December 1791]

[ U.S. Const. amend. IX and X.]

We begin with a discussion of the Tenth Amendment, which has been more commonly asserted as a source of authority for recall. According to that analysis, because the right of recall was explicit in the Articles of Confederation, and because it was not specifically delegated in the Constitution, it is among the powers that are reserved by the Tenth Amendment to the states, and to the people. In part that argument rests on the familiar notions that our federal government is one "of limited and enumerated powers . . ." 2 Story § 1907. Thus, any power not specifically delegated is reserved. As Justice Story observed:

[W]hat is not conferred is withheld, and belongs to the State authorities if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty.

[ Ibid.]

Nor does U.S. Term Limits, relied upon by the majority, ante at 125-26, 7 A.3d at 748, support the proposition that the Tenth Amendment could not have reserved the recall power. The argument that the federal government did not exist prior to the ratification of the United States Constitution, and that because the Senate therefore did not previously exist, there was no recall power to be reserved, requires a kind of parsing that ignores the earlier confederation in its entirety. And as Justice Stevens commented, "the right to choose representatives belongs not to the States, but to the people." U.S. Term Limits, supra, 514 U.S. at 820-21, 115 S.Ct. at 1863, 131 L.Ed.2d at 911. In the context of a government of limited powers, if it was not delegated to some branch of the federal government, and not expressly delegated anywhere else, it is reserved. Whether it was reserved to the states, which would make sense in light of the fact that their legislatures were authorized to elect Senators at the time, or to the people, where it remained unused pending the restoration to them of the power to elect through the Seventeenth Amendment, it did not simply vanish.

The Ninth Amendment offers further evidence in support of the right to recall. That Amendment essentially lay dormant before becoming the focal point for the debate over inherent individual rights to privacy, see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), when Justice Douglas included it among his sources for the "penumbra[l]" rights, id. at 484, 85 S.Ct. at 1681, 14 L.Ed.2d at 514-15. Justice Goldberg's concurrence, likewise, used the Ninth Amendment as the source of a variety of fundamental human rights not otherwise specified. See id. at 488-96, 85 S.Ct. at 1684-88, 14 L.Ed.2d at 517-22 (Goldberg, J., concurring). Those views provoked the dissent in which Justices Stewart and Black argued that because the Ninth Amendment was intended to limit the power of the federal government, using it as a means that would effectively expand federal power twisted its purposes. Id. at 519-20, 85 S.Ct. at 1701, 14 L.Ed.2d at 536-37 (Black, J., dissenting); id. at 529-30, 85 S.Ct. at 1706, 14 L.Ed.2d at 542 (Stewart, J., dissenting). In the decades that have followed, scholars have taken up the debate, arguing fervently about the historical origins of the Ninth Amendment and its relationship to the Tenth Amendment, as part of their effort to understand what they mean.

Both Amendments spring from the ratifying debates, in which several of the states expressed grave concerns about the absence of an expression of the agreed-upon fundamental rights of the people. See McAffee, supra, 69 Temp. L.Rev. at 69. At the time, state legislatures were considered to be bodies of general authority, with the result that only those rights that were expressly reserved to the people were retained. To some extent, the Articles of Confederation operated in a similar fashion, because they focused on rights that the states ceded to the national body as if the states were the essential repository of all authority. See 1 Morison Commager, supra, at 228 ("The Federal Government [through the Articles of Confederation] received only those powers which the colonies had recognized as belonging to king and parliament.").

In creating the federal government, the Founders embarked on a very different course, intentionally creating a government "of limited and enumerated powers," 2 Story § 1907, a system in which all powers not expressly designated to the federal government were reserved to the states or the people. Whether the document that emerged from the Constitutional Convention achieved that goal became the subject of "intense debate" that eventually gave rise to the Ninth Amendment. McAffee, supra, 69 Temp. L.Rev. at 69.

In the ratifying debates, the Federalists argued ardently that this is precisely what the Constitution achieved, an intentional scheme so self-evident it did not need further expression. Id. at 69-70. The Anti-Federalists insisted that the failure to enumerate the basic rights of the people might allow for excessive expansion of clauses, in particular, the Necessary and Proper Clause of Article I, to the detriment of the people's essential liberties. Letters from the Federal Farmer IV (Oct. 12, 1787), in 2 The Complete Anti-Federalist 247 (Herbert J. Storing ed., 1981); see Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 Colum. L.Rev. 1215, 1228-29 n. 51 (1990). As an example, delegates to the ratifying conventions argued that in the absence of the protections eventually embodied in the Fourth Amendment, Congress might revert to the practice of the use of general warrants. 1 Annals of Cong. 456 (Joseph Gales ed., 1834).

The essence of that debate turned to the problem of whether an enumeration of rights might somehow create the implication that the limited rights granted to the federal government were actually not so limited. That is, the concern was that if, for example, the rights included the right of a free press, it might imply that the federal government had been given the authority to regulate the press in some fashion. James Wilson, Speech at a Public Meeting in Philadelphia (Oct. 6, 1787), in 13 The Documentary History of the Ratification of the Constitution 339-40 (John P. Kaminski Gaspare J. Saladino eds., 1981); see McAffee, supra, 69 Temp. L.Rev. at 87. The Federalists were concerned that the very mention of rights they thought were plainly not given over to the federal government would imply that the Constitution did not actually create a limited government after all. See Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex. L.Rev. 331, 391 (2004). Some of the states ratified the Constitution only on the condition that it be immediately amended to include an expression of these agreed-upon fundamental rights as a safeguard against expansive federal power, see generally 1 Morison Commager, supra, at 259-60, apparently finding the Federalist insistence on the clear meaning of the document to be insufficient protection.

The Ninth Amendment, which originated in the Virginia ratifying convention, and which both in its original and final form was drafted by the Federalist James Madison, was designed to solve this problem. McAffee, supra, 69 Temp. L.Rev. at 73; see 1 Annals of Cong., supra, at 449-59 (reprinting Madison's remarks about proposed amendments). And as one scholar has commented, "it was no accident that the Ninth Amendment was placed alongside the Tenth." Lash, supra, 83 Tex. L.Rev. at 336. The two were designed to work in tandem to guard against expansive interpretations of the words of the Constitution that grant power to the federal government and to ensure that both the expressed and unexpressed, but retained, rights of the people be inviolate. McAffee, supra, 90 Colum. L.Rev. at 1307. As part of the way to accomplish that goal, "the Ninth Amendment also counsels against construing federal power as exclusive of concurrent state authority, unless absolutely necessary." Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60 Stan. L.Rev. 895, 930 (2008).

We need not recount in detail the debates that brought about the separate inclusion of the Ninth and Tenth Amendments to demonstrate that the purpose of the Ninth, as described in the words of its author James Madison, was "guarding against a latitude of interpretation" of the limited rights granted to the federal government. Lash, supra, 83 Tex. L.Rev. at 336; 2 Annals of Cong. 1944-52 (1791) (reprinting Madison's Speech in Congress Opposing National Bank, Feb. 2, 1791). In his opposition to the bill to establish a national bank, which he regarded as an improper extension of the Necessary and Proper Clause, 2 Annals of Cong., supra, at 1947-48, Madison cautioned that if a power is not given in the Constitution to the federal government "the exercise of it involves the guilt of usurpation." 2 Annals of Cong., supra, at 1951. One scholar has concluded that Madison's speech explaining the meaning, and the essential power, of the Ninth Amendment was sufficient to end the debate in Virginia about the necessity for ratification of the Bill of Rights. See Lash, supra, 83 Tex. L.Rev. at 333-34.

Understanding the separate roles of the Ninth and Tenth Amendments is necessary in order that they be seen neither as redundant nor as mere surplusage. The Ninth stands as the expression that the power of the federal government is limited and as an essential reminder that the interpretation of its powers is bounded by the rights of the people. The Tenth serves instead as an express reservation of non-enumerated rights to the states or the people. The importance of the rights expressed by the Ninth for this debate is therefore plain. It assures the several States, and the people thereof, that the intentionally limited grant of powers to the federal government will remain so; that expansive readings will be eschewed in favor of interpretations that appreciate the true nature of the constitutional scheme. True faithfulness to fundamental constitutional principles requires that a known right, like the right to recall, could neither be granted nor obliterated by implication; the federal government, not having an express clause in the Constitution relating to Congress that prohibits recall, cannot have its powers expanded by means of the "latitude of interpretation" needed to support the result the majority reaches. On the contrary, operating both separately and in tandem, the Ninth and Tenth Amendments demand otherwise.

E.

Finally, we turn, as we must, to a brief consideration of the significance of the Seventeenth Amendment. Its ratification marked the triumph of the populist effort to return power to the people and to wrest it from the grip of the states' legislatures. But more important for the issue now before this Court is the historical evidence that rights not expressly mentioned in the Constitution were exercised by many states to control Senators and their service anyway. The simple fact is that the Seventeenth Amendment was adopted in recognition that in many of the states, the people had already created methods to effectively take the power to choose Senators away from their legislatures, and to do so by "instructions," a means that the Framers had considered and explicitly rejected. See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L.Rev. 1457, 1496-98 (2001) (tracing history of instructions and of ratification of Seventeenth Amendment); Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment, 91 Nw. U. L.Rev. 500, 521-24 (1997) (describing history of rejection of instructions).

The suggestion that the people were deprived, through the ratification of the Constitution, of the power to affect election of Senators, is historically inaccurate. Although the compromise achieved through which the Senate would be elected by the several states' legislatures rather than by popular ballot is part of the majority's reasoning as to why they believe that the people were deprived of the right to recall Senators, efforts in the states to effectively bypass the Constitution's scheme for their election surfaced quickly. "Beginning in the 1830s . . . aspiring Senators began appealing directly to the electorate to vote for state legislative candidates who were pledged to support them for the Senate." Strauss, supra, 114 Harv. L.Rev. at 1496. One scholar has pointed to the Lincoln-Douglas debates as a prime example of this trend. Id. at 1496-97. Those debates, although held while the two men were campaigning for the Senate, were aimed at the public in order to influence the voters to elect state representatives who would support them. Ibid. Thereafter, states began to devise strategies that would approximate direct election, including holding primaries that would designate candidates for the Senate, id. at 1497, and requiring pledges from candidates for state legislatures that they would be bound by those votes. Id. at 1497-98.

Similarly, the right of instruction, which was included in several states' constitutions, see Bybee, supra, 91 Nw. U. L.Rev. at 524, has a long history relevant to our inquiry, see Christopher Terranova, Note: The Constitutional Life of Legislative Instructions in America, 84 N.Y.U. L.Rev. 1331, 1333-39 (2009); Kenneth Bresler, Rediscovering the Right to Instruct Legislators, 26 New Eng. L.Rev. 355, 359-60 (1991). Also with deep historical roots, it was discussed during the Constitutional Convention because the delegates from Delaware were "restrained by their commission" from agreeing to any change in the equal representation of the states. 1 Farrand 37. Following ratification, it was used commonly as a method to control the votes of the individual Senators, some resigning or declining to stand for re-election because their views differed from their instructions. Bybee, supra, at 525-27. More surprising, in spite of the fact that instructions were rejected from inclusion in the Constitution, the practice was used to force the Senate as a whole to bow to the will of the several States that Senate proceedings be open to the public. Id. at 524; 4 Annals of Cong. 33-34 (1794). The practice of instructions died out with the ratification of the Seventeenth Amendment, Bybee, supra, at 527, but it is significant for the current debate to note that its absence from the Constitution was not raised as an impediment to its rather regular use by the States.

IV.

There is precious little reason for this Court to wade into the constitutional question it has seen fit to resolve. There is even less reason for this Court to reach the conclusion it has embraced, rejecting as unconstitutional New Jersey's constitutional and statutory recall election mechanism. The notion that the people of the State of New Jersey, having amended their own Constitution to provide for the power of recall and having implemented that power through the enactment of comprehensive legislation, cannot recall one of their representatives because he happens to be a United States Senator is both illogical and offensive. Taken to its logical conclusion, the majority would tell the citizenry of New Jersey that it cannot recall one of its U.S. Senators even if he or she is indicted, convicted and incarcerated but not impeached; in those circumstances, the majority would conclude that the people of New Jersey have no means to avoid being disenfranchised.

When hundreds of thousands of our fellow citizens voted to create a recall mechanism by constitutional amendment, they set a high standard for bringing that machinery to bear. They did so intentionally, to reserve recall for only those infrequent cases in which it is truly warranted. As we have seen, in this circumstance, those who would invoke the remedy of recall would need, in a short time span, to amass signatures of more voters than it took to elect the Senator in the first place, supra, at 116 n. 7, 7 A.3d at 742-43 n. 7.

Nothing in the record, nothing in history, and nothing in our common shared experience suggests that recall will so threaten the work of the Senate, or of the federal government, or even the life of the one who now holds that office, that it should be denied. Nothing suggests that the people gave up that right when joining together as a Republic and binding themselves to the Federal Constitution. Indeed, it is only by lifting up a narrow and historically unsupportable view of the federal system that the majority can argue for the result it reaches.

In effect, the majority sees the Senate as an institution immune from criticism, even of the most profound and fundamental kind; it sees not a part of a federal system, but an elitist institution the members of which should not have to be troubled by what the people they represent believe, save for the necessity of having to return and convince the people to vote them back into office every six years.

Today, the Court that in the past has taken stands, time and again, for the rights of the people to have a choice about who shall govern them, see New Jersey Democratic Party, Inc. v. Samson, 175 N.J. 178, 186, 814 A.2d 1028 ("The concept is simple. At its center is the voter, whose fundamental right to exercise the franchise infuses our election statutes with purpose and meaning."), cert. denied, 537 U.S. 1083, 123 S.Ct. 673, 154 L.Ed.2d 582 (2002), condemns those same people to impotence. Today, the Court that just a few short months ago insisted that our local boards and bodies cannot foreclose dissent and debate, see Besler v. Bd. of Educ. of W. Windsor, 201 N.J. 544, 569, 993 A.2d 805 (2010) ("Our free society must give breathing room for an `uninhibited' and `robust' discussion of public issues, even when it `included vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'") (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701 (1964)), does precisely that.

Worse still, the Court takes that step, the step of silencing voices of protest and foreclosing debate, when one of the most important decision-making bodies in the land is its focus. Today is indeed a sad and dark day in the history of this Court. We cannot, and we will not, join in the unconstitutional disenfranchisement of New Jersey's citizens. We, therefore, dissent.

For reversal and vacation — Chief Justice RABNER and Justices LONG, LaVECCHIA, and ALBIN — 4.

For affirmance — Justices RIVERA-SOTO and HOENS — 2.