[original post 2/14/2010]

It’s Not About the Recall, It’s About the First Amendment

Review of case briefs, case law research, and consultation with a number of attorneys, judges, and legal professionals contributed to the writing of this article.

menendez

Tea Party activists might be smarter than some would like to think.  And depending upon the outcome of a court case later this month, they might also play a role in setting legal precedent.

When New Jersey state election officials denied their submission to initiate a recall effort against U.S. Senator Robert Menendez, calling it unconstitutional, a grass-roots recall committee’s constitutional instincts kicked into full gear.  Attorneys for the committee, themselves Tea Party activists, filed to appeal the agency decision and began writing their supporting brief.

Meanwhile, seemingly everyone was now weighing in as a legal expert.  Some insist the decision is simple:  NJ has no constitutional authority to recall a US Senator; despite what its state constitution says, that authority is reserved for the federal government alone.  For weeks now, legal scholars, political pundits and the media have been chattering online about the case, now before the Appellate Division in the Superior Court of New Jersey, some treating it more like a sideshow and an outlet to take pot shots at Tea Partiers than a legitimate court proceeding with real constitutional significance.

But Dan Silberstein and Richard Luzzi, attorneys for the Committee to Recall Robert Menendez, a committee initiated by members of the Sussex County Tea Party, see this case in an entirely different light.  They insist this case is not about whether a recall order from the state is judicially enforceable against a United States Senator, rather, it’s all about protecting the first amendment right to free speech. And they are taking the matter very seriously.  Based upon recent developments in the case, apparently so are several others, including some high profile legal experts and the courts.

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