The Relevance of Federal Norms for State Separation of Powers

Abstract

Of the American Constitution's three most distinctive features-federalism, judicial protection of individual rights and separation of powers-only the last has been held inapplicable to the states. First, federalism is, by its terms, a doctrine of power-sharing between the national and state governments. The distribution of authority between nation and states was the chief point of contention during the period of the Constitution's framing and ratification, and in recent years, the United States Supreme Court has vigorously enforced federalism norms. Second, although the original Constitution contained relatively few individual rights provisions applicable to the states, during the last half-century, the Supreme Court has interpreted the Due Process and Equal Protection Clauses of the Fourteenth Amendments as providing extensive protection for individual rights against state interference. Yet separation of powers remains aloof. Despite the Supreme Court's willingness to impose sometimes rigid formal rules on the branches of the federal government, the Court has not found justifiable limits on the states' choice of governmental structures.

This article uses Rhode Island's current controversy surrounding legislative appointments to executive commissions as a vehicle for (re-)examining the role of the federal Constitution in state separation-of-powers disputes. Part I examines the United States Supreme Court's frequent claim that the separation-of-powers principle does not apply to the states. It shows that several provisions of the federal Constitution assume a significant difference between the branches of state government, and concludes that some measure of separation of powers in state government is therefore a structural requirement of the federal Constitution.

Keywords: separation of powers, federalism norms, Constitution, individual rights, Fourteenth Amendments, state government