One of the citations offered by the Nevada Policy Research Institute in its lawsuit seeking to enforce the state Constitution’s Separation of Powers Clause and ban public employees from serving in the Legislature is a 1967 Supreme Court ruling titled Galloway v. Truesdell.
NPRI sued state Sen. Heidi Gansert, who also is employed as a flack for the University of Nevada, Reno, arguing she can’t hold both jobs because the Constitution says a person exercising power in one branch of government may not perform any functions in another branch.
The 1967 case does not involve one person serving in two branches but it does address the constitutionality of whether a person serving in one branch may also exercise powers constitutionally assigned to another.
The court found the law that dictated that judges should determine who may perform marriage ceremonies was unconstitutional under the Separation of Powers Clause. The court concluded: “NRS 122.070 is unconstitutional and void because it violates Article 3, Section 1, and Article 6, Section 6, of the Nevada Constitution by imposing legislative, administrative, ministerial, and investigative functions upon the District Courts and District Judges that are non-judicial in character and are unauthorized.”
The opinion quotes liberally from a series of articles by Arthur Vanderbilt, former chief justice of the Supreme Court of New Jersey:
“Individual freedom and the progress of civilization are attainable, but only if each of the three branches of government conforms to the constitutional principles of the separation of powers. This they will do only if the people so will. The problem in the first instance thus becomes one of popular education in the fundamental principles of free government. Among these principles there is none more significant today than the doctrine of the separation of powers.”
It also quotes Montesquieu:
“Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would be the legislator: Were it joined to the executive power the judge might behave with all the violence of an oppressor.”
The court further quotes the Latin maxim “expressio unius est exclusio alterius,” which means the expression of one thing is the exclusion of another, and noted that it had ruled in an earlier case:
“It is true that the constitution does not expressly inhibit the power which the legislature has assumed to exercise, but an express inhibition is not necessary. The affirmation of a distinct policy upon any specific point in a state constitution implies the negation of any power in the legislature to establish a different policy. `Every positive direction contains an implication against anything contrary to it which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the law-making authority as strong as though a negative was expressed in each instance.'”
Separation of powers is a fundamental and recognized law of the land as expressly stated by the Nevada Constitution. To find otherwise is a farce and a canard.
In your opinion, may a public school teacher sit on a jury?
A jury is not a branch of government.
And public employees may also vote.
Well it seems hardly without question that a juror functions as part of the judicial branch but let’s go one more step;
May a juror, who is also employed by the executive branch as a public school teacher, practice jury nullification so that they decide what the law is and isn’t?
For that matter, may any citizen, who is employed as a member of the judiciary for at least as long as they are functioning as a juror, decide law as the “jury nullification” doctrine suggests?
And Thomas since you are well informed as to the Federalist papers, particularly federalist No. 50, written by James Madison, doesn’t Madison’s acknowledgement that a total separation of powers is near impossible, give you any pause when you write articles like this?
little p, why do you hate freedom and love corruption so much? Is there some trauma in your past that would disarm your self preservation gene?
Or are you just a bored trust fund baby with nothing better to do than promulgate evil?
Stay focused because this is not about me it’s about whether we are to be a nation of laws, or a nation of men.
This article asserts that there ought to be a very strict (which according to the primary drafter of the Constitution is not possible) separation of powers. If we follow the logic to it’s conclusion, no one ought to be in a position where they both legislate and judge the law.
Jury nullification is contrary to this principle because a juror, who nullifies a law, is being both a legislator and acting as a member of the judiciary.
What do you have against the principle of separation of powers?
Athos – liberalism IS a mental defect. Don’t try to reason, educate, or communicate in any intelligent manner. Spinning your wheels….
You are absolutely correct Barbara. What the left desires is the destruction of Western civilization. For some reason their God given basic instinct of self-preservation is missing, as is gloriously illuminated by little p’s comments.
It’s a shame that some people aren’t able to have conversations without attacking the person as some fall back or substitute for reason.
I told far right wing Barbara that even though she felt the need to attack me personally several times that I was still willing to have a reasonable discussion with her if she could see her way to get past attacking me personally. You can see she decided that it just wasn’t possible, but I take that as a personal weakness by her that demonstrates her lack of capacity.
Now you’ve already shown some propensity to do the same, but I’ve looked past it, and even asked that you try and focus on the subject rather than on me so that we can maybe communicate. If you can’t you can’t and I’ll just chalk it up to just another far right wing quality that I dislike being exhibited by yet another far right winger.
The high ground is the best, deleted. Kudos.
little p, everything I’ve read from what you’ve written leads me to believe that you are a die-hard Marxist. You wish to destroy the West, and bring America into a Socialist/Marxist state by any means possible. Overwhelm the system and let it crash (Cloward-Piven) and lie, cheat, steal, intimidate anyway possible to obtain the destruction of our Republic. Our rights were granted by our Creator, not some human element (dictator, King, politburo or commission of men) but you don’t believe that, do you? Having a conversation with you is comparable to a Northerner trying to have a conversation with slave owner in the South around the same time your true god wrote your bible (1848). And given how you wish to replace the Southern Plantation owner with a benevolent government, your side lines up nicely with the Johnny Rebs.
Or it is entirely possible that as a liberal who lives with the delusion of Utopia brought on by knowledgable men (like Venezuela, USSR, Cuba, North Korea, etc) you could be diagnosed with a mental disorder.
Either way, having a conservation with you is an effort in futility. And my time is too short on this earth to fall for your twisted machinations. If you’d like to disavow your hatred for Western Civilization, let me know. Then we can “have a conversation”.
And your mother dresses you funny too.
Straw men are a wonderful thing aren’t they?
I could easily do for you what you’ve attempted here for me but where would that get us except to reinforce the ideas we have about the philosophy we believe the others holds true.
I’d rather not do that because I’m sincerely interested in learning how someone can rationalize their beliefs in the separation of powers, and the belief in jury nullification.
I contend that jury nullification is contrary to the principle of separation of powers because it combines two powers allocated to two different branches of our government into a single individual.
I started this post asking Thomas to explain it, then I posed the question to anyone to explain, and at least what I’ve got from you so far is a “when did you stop beating your wife” response. Well that’s no answer, and if it’s the best you can do, that’s alright I guess, but don’t blame me for being obstructionist here; I’m open to a reasonable exchange if you care to try.
Juries are not “a single individual”
Jury notification reinforces the power of the individual over the State. Our founding fathers knew that Man was imperfect and power-hungry. In the state would grow insatiably .
Here’s a quote for you : ” A republic if you can keep it ”
Want to guess who said that?
Jury nullification results in every man becoming the law unto himself, because it means that every man gets to decide what the law is and isn’t.
A nation of laws and not of men is what our founding fathers envisioned, which is precisely contrary to the idea of jury nullification.
“I consider [trial by jury] as the only anchor, ever yet imagined by man, by which a government can be held to the principles of it’s constitution.” —Thomas Jefferson
“It is not only his right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” — John Adams
Patrick comes up with vague, uncited, statements he attributes to some founders.
Tom produces actual, citable, quotes.
Who we supposed to believe? The “deleted” one or the actual, traceable, verifiable quotes.
“Juries are not “a single individual”
Deleted’s words:”… it combines two powers allocated to two different branches of our government into a single individual.”
As long as you’re picking nits, deleted is not wrong. Each individual in a jury holds the powers of two branches of government, as he stated. My question is who the Hell cares? You knew what he meant.
Sorry, the fact that John Adams said something doesn’t convince me that he’s right. That belongs in the realm of religion. Nevertheless, he did not appear to be saying that juries should ignore the law. In fact, he made it clear: “In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish “a government of laws and not of men.” https://en.wikipedia.org/wiki/Rule_of_law#United_States
Perhaps juries should forget about reasonable doubt and the preponderance of evidence as well.
Being Conservatives, I’m sure you approve of the jury (and judge) nullification that was once rampant in our Southeast at trials involving black and white people.
If jury can nullify the law, why can’t nine judges nullify the laws as well?
No one person in a Jury holds that power.
It takes a whole jury to nullify, otherwise you get a hung jury.
As long as you are picking nits, anyway.
There is no logical reason why a person in favor of jury nullification would deny every man, in their individual capacities as men, the ability to decide for themselves, in their capacities of individuals, what the law is or is not.
The logical result of jury nullification, and the ability of a man, on his own and in his capacity as an individual, to decide what law he will follow and which he won’t; on the capricious basis that every man gets to decide what law is or is not.
There is no founding father, or anyone else that believes in the rule of law, that would ever continence such an idea.
These people, who above, make these arguments in favor of some fictitious “right” are merely like children that don’t want anyone telling them what they get to do.
This country was never founded, or can not last, on such an idea.
reductio ad absurdum
Serving on a jury is not an everyday event, Patrick.