Founding Fathers & Separation of Powers

By Brian L. Baker

President Thomas Jefferson once said, "If the three powers maintain their mutual independence on each other our Government may last long, but not so if either can assume the authorities of the other."

Jefferson, one of our most beloved founding fathers, also commented, "The dignity and stability of government in all its branches, the morals of the people and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive and independent upon both, that so it may be a check upon both, as both should be checks upon that."

The roles of the branches of government were clearly laid before us when our nation was founded. It is imperative, as Jefferson stated, to keep these roles intact if our form of government is to remain in intact. One of the most important parts of a successful democracy is separation of powers. Our founding fathers left the power of taxation and law-making to the legislative branch, the branch that has the most direct accountability to the citizens. While checks and balances are also imperative to the process, this definitely does not give the judicial branch the right to impose taxes.

The issue of judge-imposed tax increases has become a “hot-topic” across the nation. Judge-imposed taxes became an issue here in Missouri during the Kansas City school desegregation case, Missouri v. Jenkins. A federal judge also forced the local government to raise taxes. Then the federal judge ordered the state and local governments to increase spending for the school district.

Many Republicans and Democrats alike fought this decision. The case went all the way to the US Supreme Court, where they upheld a federal court’s ability to force state and local governments to raise taxes.

In Arizona, a court ruled that the state could be held in contempt if they do not find tax-dollars to pay to improve instruction of English to non-native speakers. The judge directed millions in penalties to go immediately to Arizona classrooms. The state of Arizona is facing a billion dollar budget shortfall, and they are facing a situation where a judge is dictating how the legislature allocates and distributes money. That is the role and duty of the legislature.

These are just a few examples where courts did exceed their constitutionally designed powers to make law and levy taxation from the bench. While we can’t control what federal judges do, we can ensure that Missouri clearly defines our separation of powers. Let us be proactive…rather than reactive.

Citizens elected representatives, senators, city councilman, and other officials to serve and manage our government. It is our duty to answer to the people for our votes and decisions. The role of appropriating tax-dollars toward public services is clearly outlined in our state constitution. Further, the citizens hold us directly accountable for that action.

We are working on a proposal for a constitutional amendment that would insure that Missouri does not have judge-imposed tax increases. You and other voters would go to the polls and be given the opportunity to decide the future of this legislation. Specifically, this proposed amendment prohibits the Missouri Supreme Court or any other court of the state from ordering the state, county or city to increase taxes. The amendment also prohibits any Missouri court from controlling how the state, county or city spends, allocates, or budgets except as expressly authorized by legislation or approved by Missouri voters.

Around the country and in Missouri, judges are necessary and important to the process and there are so many who do great work.

That being said, judges are elected to interpret the law and insure we abide by the law. Legislators are elected to appropriate tax-dollars and make laws. In our democracy, your representatives allow you and your fellow voters to have a say in the operation of government – whether it is by voting, calling your representatives or taking action through petitions, grassroots campaigns and public forums. Judges do not have the same role in our system. In addition, judges cannot always see the full picture in terms of the budget because they are not involved in the appropriations and budget process. That is the constitutional duty and role of the legislative branch.

We must clearly reiterate the separation of powers between the branches of our government and clearly define the role of the legislative and judicial branch. In the words of Thomas Jefferson, we must do this “that our government may last long.”