As the Supreme Court returns many critical issues to the states, the structure of state government is increasingly significant to the American constitutional order. From redistricting to reproductive rights, battles are raging over which state institutions should decide these important issues. Yet there is surprisingly little scholarship dedicated to the separation of powers under state constitutions. Instead, state doctrine and commentary tend to mimic themes in federal constitutional law and parrot Madisonian ideas of constitutional design. On this view, the separation of powers is based on carefully balanced intragovernment rivalries fueled by the private ambition of government officers. This competition within government is part of a broader Madisonian strategy to protect against abusive popular majorities and prop up representative institutions. Although this approach is criticized, it is at the core of the federal Constitution’s design, and it remains the dominant lens through which American courts and scholars view the separation of powers.
This Article provides a novel assessment of whether state constitutions incorporate a wholly different approach to the separation of powers. I argue that viewing state constitutions exclusively through a Madisonian lens provides an incomplete and misguided account. Drawing on largely neglected state constitutional history, an original hand-coded database of state constitutional texts from 1776 until 2022, and an extensive review of state constitutional convention debates, I argue that state constitutions insist on the separation of powers—not primarily to pit ambition against ambition within government—but to enhance the public’s ability to monitor government from the outside. To be sure, state constitutions leverage internal checks and balances, but this is not the only (or even the primary) logic underlying the separation of powers in state constitutions. A fundamental reason that state constitutions separate power is to address the concern that self-interested officials are likely to collude across branches rather than compete; thereby short-circuiting intragovernment checks. The best antidote for this is to increase the quality of direct popular oversight. By clearly organizing and separating government into discrete departments and subdepartments, the public is better equipped to monitor government because responsibility is more isolated. This approach to the separation of powers, which I call the “popular accountability” rationale, is at the core of state constitutional design and government structure.
Consequently, state constitutions do not depend on an archetypal tripartite division of government power or vigilant judicial maintenance of internal checks and balances because they do not expect that government will self-regulate without persistent and pervasive popular involvement. Instead, state constitutions work to separate government along lines that allow the public to track and respond to malfeasance on salient issues. Those lines are often highly contextual and reactive. That is why state constitutions boldly ascribe to the separation of powers while simultaneously creating myriad ad hoc elected offices and specialized departments that blend and obfuscate the traditional tripartite model. This Article concludes by sketching the beginnings of a more authentic state separation-of-powers jurisprudence that views the doctrine principally as a tool in service of popular accountability rather than a constraint on democratic outputs. It also illustrates how this approach would restructure and improve outcomes in fundamental areas such as the nondelegation doctrine and administrative deference while enhancing the democratic commitments at the core of state constitutional design.
Jonathan L. Marshfield,
America's Other Separation of Powers Tradition,
73 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol73/iss3/2