Taking Politics Seriously: A Theory of California's Separation of Powers


This Article presents the first comprehensive analysis of separation of powers under the California Constitution, and also lays the groundwork for a more general theory of separation of powers in state constitutional law. Such an effort is of more than academic interest, for the California Supreme Court will soon confront its most important separation of powers case in more than one hundred years: Marine Forests Society v. California Coastal Commission, which challenges the constitutionality of the most powerful land use authority in the country, and could portend a major change in the balance of power between the Governor and the Legislature. Through an analysis of the structure and meaning of the California Constitution, and a careful reconsideration of the history and purpose of the separation of powers, Jonathan Zasloff argues that the California Supreme Court should fundamentally rethink the separation of powers. Instead of using the doctrine to police the boundaries between the branches, the Court should largely defer to political branch agreements dividing authority between the Governor and the Legislature. Judicial attempts to referee political struggles have gone badly awry, and have been compounded by reliance on federal separation of powers precedent that simply does not apply to the state constitution.

Jonathan Zasloff concludes that this framework, stressing the primacy of politics and the divergence between state and federal constitutions, can serve as a template for separation of powers jurisprudence in the majority of the fifty states, and prevent the doctrine from disrupting carefully crafted political compromises. State courts, he contends, should look more carefully at their own constitutions to create a more realistic separation of powers jurisprudence than their federal counterparts. If "realistic" here means far less jurisprudence than before, then that merely reflects the doctrine's problematic underpinnings.

About the Author

Professor of Law, UCLA School of Law; J.D., Yale Law School; Ph.D., Harvard University

By uclalaw