No recall of Senators

Francisco Martin ricenter at
Sat Feb 5 16:02:17 PST 2005

Dear Prof. Johnson:

Thanks for the cites.  It certainly does appear from an originalist understanding viewpoint that Senators could not be recalled.  However, what about the 10th Amendment?  Certainly the Constitution's text is silent on whether senators could be recalled by their state legislatures or later by the people of a state.  The 10th Amendment might reserve a recall right to the state legislature (or the people of the state).  I wonder.

Francisco Forrest Martin
Rights International, The Center for International Human Rights Law, Inc.

----- Original Message ----- 
From: Calvin Johnson 
To: ricenter at
Cc: conlawprof at
Sent: 2/4/2005 6:20:51 PM 
Subject: RE: No recall of Senators

The Framers took away the power of recall of Congressmen because they thought that would bind the Senators too closely to  local prejudices and distract them from their loyalty to the General Welfare.  Here is what I have:
Under the Articles of Confederation, delegates served at the pleasure of their home legislatures and could be recalled at will. The service-at-will rule gave the States legitimacy to review the daily deliberations of the Congress, and that meant, Randolph complained, that the delegates had “no will of their own” and were “always obsequious to the views of the States, who are always encroaching on the authority of the U. States.”[1]   Alexander Hamilton told the convention that because they were subject to recall, the delegates to the Continental Congress always came "with the prejudices of their states rather than the good of the union."[2]   The New York delegates had been given instruction with their empowering papers not to allow amendment of the Articles’ rule that congressional delegates could be recalled by the state legislature on discretion.[3] When Lansing and Yates withdrew, however, the convention ended the recall of senators on discretion.  Senators were given lo!
 ng, fixed six-year terms, [4] and that ended the second guessing of senators.
            Hamilton argued to the New York Convention that if the power of recall had been given, a Senator would "perpetually feel himself in such a state of vassalage and dependence, that he never can possess that firmness which is necessary to the discharge of his great duty to the Union."[5]  In Virginia Federalist argued that the "dread of being recalled would impair [the] independence and firmness" of Senators[6]  and render the Senators "rather partisans of their own states than representatives of the Union. "[7]  Because state legislatures were subject to "factious and irregular passions," Robert Livingston told New York,  a senator might "be appointed one day and recalled the next."   "This would be a source of endless confusion," he said.  "The Senate are indeed designed to represent the state governments; but they are also the representatives of the United States, and are not to consult the interest of any one state alone, but that of the Union."[8]

[1]  Randolph, Federal Convention (June 16, 1787), in 1 Farrand 256. 
[2]  Hamilton, Federal Convention (June 19, 1787) in 1 Farrand 298
[3] 1 DHRC at 193.
[4] U.S. CONST. art. I, sec. 3, cl. 1.
[5]   ( June 24, 1788), 2 Elliot 303  
[6]  George Nichols, Virginia Convention (june 13, 1788)  3 Elliot 360
[7]  Randolph to Speaker of Virginia House  (Oct. 10, 1787) in 1 Elliot 486
[8]  RR Livingston, NY Convention (June 24, 1788), in 2 Elliot  291.  See also Chancellor  Livingston, NY Convention, (June 24, 1788),  2 Elliot 296  (arguing that the power of the power of recall would "have a tendency to bind the senators too strongly to the interests of their respective states.")

From: Francisco Martin [mailto:ricenter at] 
Sent: Thursday, February 03, 2005 6:54 PM
To: Calvin Johnson
Subject: RE: No recall of Senators

I am not sure if I am understanding your argument.  Could you give me some cites to Randolph, Madison, & Hamilton?

Francisco Forrest Martin
Rights International, The Center for International Human Rights Law, Inc.

----- Original Message ----- 
From: Calvin Johnson 
To: ricenter at
Sent: 2/3/2005 11:54:12 AM 
Subject: No recall of Senators

No Senators were given 6 years terms by Article I, section 2, precisely to prevent recall of the Senator "in the middle of the debate."  Randolph, Hamilton and Madison speak out against hte recall of senators leading to preponderance of the Local over the common Defence and general Welfare, and they end recall.   As it turned out, state's givng  mandatory instructions to a Senator with a six year term was an exercise in futility, especially where the State house and Senator were from different parties.  

From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Francisco Martin
Sent: Wednesday, February 02, 2005 11:20 PM
Subject: Re: Europe

Prof. Miller writes in relevant part:  "Members of the U.S. Senate in 1789, while chosen by the State legislatures, were part of the Federal government and could not be recalled."

COMMENT: Why not?  There's nothing in the 1789 Constitution prohibiting state legislatures from recalling Senators.  Indeed, one state legislature censured a senator for his failure to obey its instructions.  See E. McPherson, The Southern States and the Reporting of Senate Debates, 1789-1802, 12 J. Southern Hist. 223, 228-35 (1946).

Francisco Forrest Martin
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