The NJ Tea Party movement is trying to recall Senator Robert Menendez (D) and has set in motion a proceeding that puts two Constitutions on trial against each other.

Phil Sovereignty has blogged:

The current case of Committee to Recall Robert Menendez from the Office of United States Senator v. Nina M. Wells and Robert F. Giles is therefore a constitutional crisis within the most literal possible meaning of that word. As The Star-Ledger (Newark) correctly observes, the New Jersey Supreme Court will now be asked whether part of New Jersey’s constitution is unconstitutional.

This case has already seen the executive branch of the State government argue that very thing–that part of the State’s own constitution is unconstitutional. As Richard T. Luzzi, legal spokesman for the committee seeking to oust Menendez has observed, this is an extraordinary position for any State legal officers to put themselves in.  Menendez’ position is the issue concerns whether Article I, Paragraph 2b, the text providing for recall elections, is in compliance with the United States constitution. That text specifically authorizes the voters to recall any elected official in the State of New Jersey, and any representative of the State in Congress, after they have served for a year, for any reason or no reason, so long as the effort meets certain signature-gathering and other requirements.

The US constitution neither expressly provides for the recall of Members of Congress, nor specifically

forbids such action. The Menendez position appears to be that what the Constitution does not allow a State to do, it forbids a State to do, in any matter pertaining to the election or appointment of any member of the

legislative, executive, or judicial departments of the federal government. Recall is not allowed because recall is not provided for.

According to Menendez’ press spokesman, in Politico.com:  The lower court declined to decide the fundamental matter at hand, and this is  why we are appealing and hope that the New Jersey Supreme Court addresses this  important issue.

The Appellate Division in fact said specifically that they considered that constitutional question out of their jurisdiction, because they were a State court, not a federal court. The recall committee, and its new lead counsel, Andrew L. Schlafly, hold that what the Constitution does not forbid a State to do, it allows a State to do, in any context. Schlafly also holds that a legislator is an agent of the constituency that chooses him, and no agent ever serves with an irrevocable commission. While an agency contract might specify that a client may not fire his agent until a specified time has elapsed or some other condition manifests itself, no such precedent exists in the case of legislators.

Indeed Judge Edwin Stern and his colleagues in the New Jersey Superior Court’s Appellate Division

specifically observed, in their per curiam opinion, that there is no specific

case on point on this subject.

The strongest point advanced by Schlafly and other lawyers is that recall, as a part of American politics, predates the American War for Independence and had been used, at least once, even long before the French-Indian War. True enough, recall was written into the Articles of Confederation but not into the

Constitution. But that does not in and of itself mean that recall was forbidden. When the Constitution’s framers did not want the States to do a thing, they specifically listed their prohibitions in Article I, Section 10 (“No State shall…”). Subsequently, the passage of Amendment X made clear that the States

retained any powers that the Constitution did not delegate to the federal government or forbid to them.

According to the Associated Press, the New Jersey Supreme Court’s clerk would not say exactly when the Court would ask for briefs, or what deadlines it would set, or when it would hear oral argument.