You are on page 1of 5

Dear Linda, I am writing this letter to respond to your request that I support legislation related to the Balance of Powers

Act. I and several attorneys have dedicated significant time to review and research as I believe this issue is important. While I find the continued growth of the federal government unacceptable, I am of the opinion that this legislation is not a viable or permissible solution, and that proceeding with such legislation would not be consistent with my oath of office as a member of this Legislature. Further, I fear that if adopted, such legislation could be very damaging to the rights of individuals. While I understand this is not the opinion you were hoping for, I hope you will allow me to explain as my opposition is based on conservative values of limited government, respect for our Founding Fathers and concern for individual rights. I believe the Balance of Powers Act would actually, while maybe unintentionally, undue very important principles limiting government and protections of the individual that the foundation of our government was built to protect. After careful examination, I can find no provision of the Constitution that would allow a state to lawfully engage in the activities proposed in the Balance of Powers Act. As Daniel Webster noted in 1830, nullification "has not a foot of ground in the Constitution to stand on." Instead, the Constitution makes it entirely clear, through the Supremacy Clause and Article III, that the Balance of Powers Act simply cannot stand. Furthermore, assuming, for the sake of argument, that the plain language of the Constitution leaves any doubt, I strongly believe that this legislation is contrary to the intentions of our Founding Fathers, as expressed in the Federalist Papers, which are the foremost source of information concerning the aims and objectives of the drafters of the Constitution. In recent years, as the federal government has sought to expand its reach, these insights have become even more important, and have, perhaps surprisingly, found much favor with conservative groups. With that importance in mind, I believe that the insights provided by the Federalist Papers make absolutely clear that the Founding Fathers did not intend for the states to be able to nullify federal laws and, moreover, that they intended the federal courts to be the mechanism to decide whether federal laws were constitutional. While this may be disappointing, I believe that it is true even if the courts do not rule as we wish. Article VI, Clause 2 of the Constitution, the so-called Supremacy Clause, states: This Constitution, and the Laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. Federalist No. 33, authored by Alexander Hamilton, discusses the importance of this clause: If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a governmentBut it will not follow from this doctrine that acts of the larger society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.

To be sure, Hamiltons argument is consistent with that upon which the Balance of Powers Act is premised. However, it is not the province of the states to determine the constitutionality of laws. Rather, that power is vested in the federal judiciary under the Supremacy Clause and Article III of the Constitution, which confers the "judicial power of the United States" on the federal courts for "all cases, in law and equity, arising under this Constitution" Based upon these provisions, the Supreme Court declared in 1803 that the judiciary had the ability to review the constitutionality of state and federal laws, stating: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. Marbury v Madison, 5 US 137 (1803). While some might criticize this decision, it has withstood two centuries of scrutiny and is altogether consistent with the intent of the Founding Fathers, even though, as Hamilton admits in Federalist No. 81, "there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution." Prior to the Constitutional Convention, many states accepted judicial review as a valuable safeguard against legislative power, and many of the Framers were familiar with, and supportive of, the practice. Indeed, notable delegates such as George Mason, Elbridge Gerry, and James Madison affirmed at the Convention that the Constitution authorized judicial review. These affirmations are consistent with Federalist No. 78, which was written by Alexander Hamilton, and declared courts to be the bulwarks of a limited Constitution against legislative encroachments whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Hamilton went on to state: Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves Hamilton proceeded to assert that it would be irrational to presume that the Constitution intends for Congress to determine the constitutionality of its own acts. Rather, he wrote: the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an

irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or, in other words, the Constitution ought to be preferred to the statute Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. Thus, while federal law is, indeed, the supreme law of the land only when such laws are in concert with the provisions of the Constitution, it is not the several states, but rather, the judiciary that is the arbiter of constitutionality. This arrangement is consistent with the text of the Constitution and the backdrop of history, and is an invaluable component of our system of checks and balances. To this end, the Supreme Court has long since determined that state statutes allowing for the nullification of federal enactments are inimical to the Constitution. As the Court noted in United States v Peters, 5 Cranch 115 (1809): If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest in resisting principles so destructive of the union, and in averting consequences so fatal to themselves. This decision, rendered by our nation's highest court more than two centuries ago, is consistent with the convictions of the Founding Fathers and the beliefs of many of our most respected public servants. Madison called nullification a "fatal inlet to anarchy." Daniel Webster declared that allowing individual states to nullify federal enactments would result in the Constitution becoming "as feeble and helpless a being as its enemies, whether early or more recent, could possibly desire." President Andrew Jackson, in his 1832 proclamation regarding South Carolina's Ordinance of Nullification, stated: Our Constitution does not contain the absurdity of giving power to make laws, and another power to resist them. The sages, whose memory will always be reverenced, have given us a practical, and, as they hoped, a permanent constitutional compact. The Father of his Country did not affix his revered name to so palpable an absurdity. Nor did the States, when they severally ratified it, do so under the impression that a veto on the laws of the United States was reserved to them, or that they could exercise it by application. Search the debates in all their conventions - examine the speeches of the most zealous opposers of federal authority - look at the amendments that were proposed. They are all silent - not a syllable uttered, not a vote given, not a motion made, to correct the explicit supremacy given to the laws of the Union over those of the States, or to show that implication, as is now contended, could defeat it. In a historical context, it is clear that enacting legislation such as the Balance of Powers Act is not in accordance with the dictates of the Constitution or the intent of the Framers. For more than two centuries, American leaders have thought of the idea of nullification as dangerous and constitutionally troublesome. Today, I concur with that assessment.

Even assuming that the Balance of Powers Act is permissible under the Constitution, the practical effects of this proposed legislation also render it untenable. While you and I may agree that federal dictates such as the Affordable Care Act or excessively burdensome firearms regulations are troublesome, it is neither fair nor wise to allow Michigan and her 49 other sister states to each make an independent determination on these issues, or any others. To do so would, as Alexander Hamilton noted in Federalist No. 80, create "a hydra in government, from which nothing but contradiction and confusion can proceed." Indeed, Daniel Webster, arguing against the doctrine of nullification in 1830, seized upon the same rationale: And, Sir, if we look to the general nature of the case, could any thing have been more preposterous, than to make a government for the whole Union, and yet leave its powers subject, not to one interpretation, but to thirteen or twenty-four interpretations? Instead of one tribunal, established by all, responsible to all, with power to decide for all, shall constitutional questions be left to four-and-twenty popular bodies, each at liberty to decide for itself, and none bound to respect the decisions of others, - and each at liberty, too, to give a new construction on every new election of its own members? Would any thing, with such a principle in it, or rather with such a destitution of all principle, be fit to be called a government? No, Sir. It should not be denominated a Constitution. It should be called, rather, a collection of topics for everlasting controversy; heads of debate for a disputatious people. It would not be a government. It would not be adequate to any practical good, or fit for any country to live under. In practice, the consequences of each state enacting the Balance of Powers Act might be staggering, and cause our society, as a whole, to regress. For example, a state could nullify the Civil Rights Act of 1964, thereby permitting voter discrimination and sanctioning segregation within its boundaries. While it might be argued that no state would choose such a course, it is not ridiculous to assume that many state legislatures would have rejected the Firearms Owners Protection Act of 1986, which protected the Second Amendment rights of law-abiding citizens. Similarly, the Balance of Powers Act declares that the Supreme Court cannot "bind the states undercourt order or opinion" Such a declaration presumably overrules centuries of Supreme Court precedent, including important cases such as Brown v Board of Education, Loving v Virginia, and District of Columbia v Heller, thereby allowing states to pass laws that: mandate segregated public restrooms, prohibit interracial marriages, and prevent citizens from owning handguns for lawful purposes. Unfortunately, American history is littered with such instances of state legislatures impeding upon the constitutional rights of individuals. In these cases, and many others, aggrieved citizens were forced to turn to Congress and the federal courts for protection and redress. The Balance of Powers Act eliminates the fundamental unanimity of that protection. The American people, by enacting the Constitution, chose to vest the federal government with certain, limited powers to enact legislation and to decide the constitutionality of laws. As a matter of law, and a matter of policy, it is not for the states to arbitrarily pick and choose which of these legislative enactments by which to abide, or which judicial opinions to render null. While it may be tempting for conservatives to look at the current makeup of some legislatures and imagine they want a state legislature to be able to determine the constitutionality of its or Congress' work; we know that through history the partisan and therefore philosophical makeup of legislatures change. Therefore, conservatives would not want a liberal legislature to have such unchecked powers. Power by the legislature could, and throughout history has, violated the rights of individuals were it not checked by the separation of powers of our court system.

The question then becomes what states can do to quell the encroachment of the federal government on matters which have traditionally been the province of state governments. In Federalist No. 44, James Madison states that the most effective method for states to use in overturning unconstitutional federal laws is not nullification, but the election of representatives who will annul the unconstitutional acts: The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. Moreover, as Daniel Webster noted in 1830: the Constitution of the United States is not unalterable. It is to continue in its present form no longer than the people who established it shall choose to continue it. If they shall become convinced that they have made an injudicious or inexpedient partition and distribution of power between the State governments and the general government, they can alter that distribution at willIf any thing be found in the national Constitution, either by original provision or subsequent interpretation, which ought not to be in it, the people know how to get rid of it. If any construction, unacceptable to them, be established, so as to become practically a part of the Constitution, they will amend it, at their own sovereign pleasure. Thus, the individual states are not without recourse to stem the flow of increasing federal regulation. However, this power does not extend to the ability to nullify laws or pass legislation such as the Balance of Powers Act. Indeed our Founding Fathers considered such a thing dangerous. Instead of focusing our effort and energy on this debate, we should follow the advice of our Founding Fathers and focus our efforts on electing candidates to Congress who philosophically embrace a commitment to constitutional principles, limited governments and conservative policies. Through these efforts, the people of Michigan can assure that the federal government does not continue to expand and increase at the expense of the states. Sincerely, Jase Bolger Michigan Speaker of the House District 63 Ph: 517.373.1787 Room 164 Capitol Building

You might also like