PERSPECTIVE: Protecting the Separation of Powers

by Mark Dubois [This is] a topic that is much discussed by us who study and live the law, but little understood and appreciated by the public: the separation of powers.

The origin of the separation of powers is specifically credited to Montesquieu during the Enlightenment, who wrote of it in “The Spirit of the Laws in 1748,” a document whose influence was significant in the 1787 creation of the Constitution of the United States.

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

“Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

“There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

James Madison wrote on the necessity of a separation of powers in the “Federalist Papers”: “It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

“This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public … that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.

“These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.”

The role of the courts in regulating the other branches of government was not immediately acknowledged, receiving its first expression in Marbury v. Madison in 1803 and later in Dred Scott in 1857, both instances when SCOTUS held federal laws to be unconstitutional and unenforceable.

As a matter of fact, it wasn’t until after the Civil War that the notion that our federal courts were a co-equal branch of government and not just a place for the resolution of private disputes really began to take hold.

Since then, however, it’s become accepted and understood that our courts remain the bulwark where those seeking relief from executive fiat or legislative errors can be given shelter.

Closer to home, and unlike the federal system where separation of powers is found in the interstices rather than in the text, we have our own constitution which specifically spells the concept out.

In Connecticut, separation of powers was not codified into our law until the adoption of the Constitution of 1818.

Article 2, as amended by Article 18 of the amendments, provides: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy…”

Before that constitution, much of the power of state government resided in the legislature. And here in the land of steady habits, change came slow. It took more than 60 years from the adoption of the 1818 constitution until the first meaningful iterations of the principle of separation of powers was realized by action of the Supreme Court of Errors in Styles v. Tylerin 1884 and the Norwalk Street Railway Appeal 13 years later in 1897.

Indeed, the most significant separation-of-powers cases did not begin until the latter half of the last century, with the Connecticut Bar v. Connecticut Bank unauthorized practice of law case in 1958, Adams v. Rubinow, dealing with probate courts in 1968 and State v. Clemente, in 1975, a criminal case nearly 160 years after the constitution was adopted.

As with our federal brethren, our state courts have now fully embraced their role as protectors of this important principle.

Recently we’ve seen separation of powers being the deciding issue in a number of cases in very different contexts. State v. Courchesne, and its progeny, dealt with the ability of the Legislature to establish rules governing how courts were to interpret statutes; Bysiewicz v. Dinardo (whether exercising executive powers and functions could be deemed to be practicing law); Persels v. Banking Commissioner (regulation of the legal profession by the executive branch); and Coalition for Justice in Education Funding v. Rell (education funding).

The push and pull of power and authority against and across the necessary porous boundaries between these separate magistracies remains an ongoing dynamic, no less today than when Montesquieu and Madison wrote about it in the 18th century. And, as Madison correctly noted, none of us is an angel. The process of government is far from perfect, and even the best systems are no better than those who enforce them.

Federal courts who have been asked to slow our president down have been attacked as “so-called judges,” not much different from a half century or more ago when they were desegregating the schools.

Closer to home, the recent legislative grilling of a sitting Supreme Court justice over his rulings on the death penalty and other politically charged issues during hearings over his proposed ascension to the position of chief justice warns us that we’re no better or worse than our friends in Washington.

We may not all agree on specific issues, but we can and should agree that the system of separation of powers or constitutional checks and balances is a necessary and enervating principle essential to the proper working of our government.

It is our duty, having taken an oath as both a lawyer and a commissioner of the superior court, to stand up and say no when political, personal or passing fashions or ideas threaten the proper and independent operation of any of our branches of government, especially the judiciary.

It is therefore fitting that we take time today, celebrating the rule of law, to reaffirm our fealty to these principles. If the ideals embodied in our state and federal constitutions are to continue to make us a strong and vibrant country, it’s all our duty to speak out and protect them when we see them under attack.


Former Connecticut Chief Disciplinary Counsel Mark Dubois is with Geraghty & Bonnano in New London.  These remarks were delivered as part of a Law Day 2018 observance in Middletown this spring, and subsequently published in the Connecticut Law Tribune.