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Bar News - January 3, 2003 Conference Provides Context To Balance of Powers Issues BRAVING A SNOWY morning rush hour, more than 150 people spent the day at the St. Anselm Institute of Politics in Goffstown on Dec. 12 to hear a panel of experts on state constitutions explore the timely topic of separation of powers as it is played out in various states. The audience - primarily legislators, but also including members of the judiciary - other government officials, lawyers and others interested in government issues, listened to and questioned the experts, and then participated in small-group discussions during the all-day event, made possible through support from the Dudley W. Orr Fund of the New Hampshire Charitable Foundation. The event was co-sponsored by the New Hampshire Judicial Council, the Center for State Constitutional Studies, and the St. Anselm Institute of Politics. Governor-elect Craig Benson also made brief remarks at the start of the event. Four members of the NH Supreme Court attended all or part of the event and participated in the discussions. Robert W. Williams, distinguished professor of law at Rutgers University-Camden Law School, said that the traditional concept of "separation of powers" as a means of protection through conflict was giving way, in the current era, to a "cooperation model." In the founders' time, he said, "gridlock was seen as a way to protect the people" from a potentially tyrannical government. Today, however, government is so much more involved in providing services to people so that gridlock is now seen as "dangerous." "The view of separation of powers as depending on conflict has outlived its usefulness," he said. The panelists discussed instances in other states where imbalances between the branches existed - Rhode Island's supremacy of the Legislature over both other branches was cited - as well as controversies over judicial review of legislative acts. Also addressed were the various ways in which school finance cases similar to the Claremont cases are being decided on constitutional grounds. When one questioner asked why judges tended toward "judicial activism," panelist Carl T. Bogus, a law professor at Rhode Island's Roger Williams School of Law, replied: "Courts make law. The founders expected the courts to make law. This is not nefarious. It is easy to question the good faith of decision-makers with whom we disagree. 'Judicial activism' is frequently a pejorative term for decisions we disagree with." Alan Tarr, director of the Center for State Constitution and editor of a series of books on each of the state's constitutions, provided an interesting historical context to the development of judicial elections. "The prime motivation at the time (in the 19th and 20th centuries) was to provide a stronger backbone to the judiciary, strengthening them to act as a check on the legislature," he said.
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