Some Observations on Separation of Powers and the Wisconsin Constitution

Abstract

In recent years the Wisconsin Supreme Court has decided several high-profile cases concerning the separation of powers under the state constitution. In the abstract, questions concerning the separation of powers do not seem inherently partisan, largely because the partisan balance of government will shift over time. Yet, as has been the case with many of its recent decisions, the justices’ votes have broken along what most observers regard as partisan lines, and the opinions have featured heated prose including accusations of result orientation and methodological illegitimacy.

This article is the initial product of an effort to read, and attempt to synthesize, the entirety of the Wisconsin Supreme Court’s output relating to separation of powers dating back to the state’s founding. It advances no single thesis and makes no grand claims. It instead seeks to identify some threads running through the caselaw, including with respect to the court’s approaches to interpreting the state constitution, to highlight some tensions, oversights, and loose ends in the doctrine, and to suggest that the court’s perceived legitimacy would benefit from more humility and less heated rhetoric.

Keywords: Wisconsin, state constitutional law, state constitutions, separation of powers

JEL Classification: K4, K40, K49