Kersh, Rogan

Mettler, Suzanne B.

Reeher, Grant D.

Stonecash, Jeffrey M.

English

DOCS@RWU

Roger Williams University Law ReviewVolume 4 | Issue 1 Article 2Fall 1998"More a Distinction of Words than Things": TheEvolution of Separated Powers in the AmericanStatesRogan KershSyracuse UniversitySuzanne B. MettlerSyracuse UniversityGrant D. ReeherSyracuse UniversityJeffrey M. StonecashSyracuse UniversityFollow this and additional works at: http://docs.rwu.edu/rwu_LRThis Symposia is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion in Roger WilliamsUniversity Law Review by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationKersh, Rogan; Mettler, Suzanne B.; Reeher, Grant D.; and Stonecash, Jeffrey M. (1998) ""More a Distinction of Words than Things":The Evolution of Separated Powers in the American States," Roger Williams University Law Review: Vol. 4: Iss. 1, Article 2.Available at: http://docs.rwu.edu/rwu_LR/vol4/iss1/2Symposium: Separation of Powers inState Constitutional LawIntroductionCarl T. Bogus*The accumulation of all powers, legislative, executive, and ju-diciary, in the same hands, whether of one, a few, or many,and whether hereditary, self-appointed, or elective, may justlybe pronounced the very definition of tyranny.The Federalist No. 47 (James Madison):'In what may be its most important case of the century, theRhode Island Supreme Court will decide later this year whetherthe principle of separation of powers among the three branches ofgovernment is contained in the Rhode Island Constitution on thesame basis as the United States Constitution.The principle of separation of powers has always been contro-versial in Rhode Island. When James Madison penned the state-ment above, he noted that unlike most of the other states, RhodeIsland might not have adopted the doctrine of separation of powerssince its charter was written before the principle "had become anobject of political attention."2When the state constitution was drafted in 1843 as a result ofthe Dorr Rebellion, separation of powers was still controversial. 3"The People's Constitution," ratified by the voters in 1841, clearly* Associate Professor, Roger Williams University School of Law. A.B., J.D.,Syracuse University.1. The Federalist No. 47, at 313 (James Madison) (Sherman F. Mittell ed.,1937).2. Id. at 247.3. See Patrick T. Conley, Separation of Powers in Rhode Island, 44 R.I. B.J. 9(1995).2 ROGER WILLIAMS UNIVERSITY LAW REVIEWincorporated the principle of separation of powers. 4 However, thelegislature and the state Supreme Court refused to recognize thePeople's Constitution. 5 By using martial law and threateningpolitical opponents with treason, the legislature ultimately suc-ceeded in having the electorate ratify a different constitution. 6That document-which is, perhaps deliberately, vague on the issueof separation of powers-is the Rhode Island Constitution.Each side in the debate can point to aspects of the documentthat favor its position. Those who argue that the state constitutionrecognizes the principle of separation of powers find support, forexample, in Article V, which states: "The powers of the governmentshall be distributed into three departments: the legislative, execu-tive and judicial."7 Those who argue that the legislature is thedominant branch of government often cite Article VI, Section 10,which provides: "The general assembly shall continue to exercisethe powers it has heretofore exercised, unless prohibited in thisConstitution."The current constitutional struggle involves efforts by theGeneral Assembly to further extend its power into what, in the fed-eral system, are considered executive functions-most particu-larly, appointing the officers of regulatory agencies. 9 For example,the enforcement of environmental laws in Rhode Island is nowsplit among several agencies, including most prominently the De-partment of Environmental Management (DEM) and the CoastalResources Management Council (CRMC). The General Assemblyis seeking to transfer powers from DEM, which is administered bya director appointed by the Governor, to CRMC, which is controlledby a board comprised, in large part, of members of the General As-sembly and other individuals appointed by the Speaker of theHouse of Representatives.l0Some argue that legislative participation in the enforcement ofthe law helps to ensure that regulatory agencies enforce the law in4. William G. McLoughlin, Rhode Island: A History 130-31 (1978).5. See id. at 133.6. See id.7. R.I. Const. art. V.8. Id. art. VI, § 7.9. See Conley, supra note 3, at 10.10. See Peter B. Lord, General Assembly Under Siege in Historic Challenge,Prov. J. Bull., March 30, 1998, at Al, available in 1998 WL 6510744.[Vol. 4:1INTRODUCTIONa manner consistent with the public policy." Others contend thatit destroys the checks and balances necessary to prevent powerfrom being misused. 1211. See Russel Garland, Almond, Legislators Square Off in Court Case, Prov.J. Bull., Dec. 28, 1997, at Al, available in 1997 WL 17531644.12. See Sheldon Whitehouse, Appointments by the Legislature Under theRhode Island Separation of Powers Doctrine: The Hazards of the Road Less Trav-eled, 1 Roger Williams U. L. Rev. 1 (1996).1998]

More a Distinction of Words than Things : The Evolution of Separated Powers in the American States

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More a Distinction of Words than Things : The Evolution of Separated Powers in the American States

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