The lawmakers vs. the law: Part V

Pols become predators without the constitutional separation of powers

By Steven Miller
  • Monday, May 23, 2011

The politicians think it's all about them.

In a way, such egocentricity is natural enough: Politics, by its nature, requires big egos.

It becomes a problem, however, when those big egos — as can very easily happen — become enamored with power. For, as human experience repeatedly demonstrates, the hunger for power corrupts the soul.

Consequently, ever since 1215, when the depraved and profligate King John was compelled by barons at Runnymede to sign the Magna Carta, successful human societies have recognized that raw governmental power must be checked by counterbalancing power.

Then, all across the Western world — especially after Montesquieu's The Spirit of the Laws — that insight evolved even further.

Because the state itself, throughout history, has always been the major violator of both human rights and liberty, it was understood that governmental power needs to be divided against itself functionally, so that the different branches can both check and balance each other.

Out of this understanding arose not only the American federal government, but also the characteristic form of our state governments: Three branches — legislative, executive/administrative and judicial — separate and distinct, with built-in checks and balances.

This division, noted the U.S. Supreme Court in 1933, was never for mere convenience but

... with the basic and vital object of precluding the commingling of these essentially different powers in the same hands. (Emphasis added.)

— O'Donoghue v. United States, 289 U.S. 516, 530

This leads to an interesting insight about Nevada: Within our state's political class, the understanding of this "basic and vital" issue seems to have devolved, rather than evolved. Notwithstanding Article 3 of the state constitution — which explicitly prohibits the commingling of the branches into the same individuals' hands — that commingling has become commonplace.

Earlier articles in this series have reported on several such Nevada cases. Yet they only scratched the surface. As one Las Vegas city councilman noted during the council's hearing regarding Assemblyman Wendell Williams' activities, they were looking at merely "the tip of the iceberg."

This is where the "it's all about me" attitude natural to politicians has already become a serious — if widely unperceived — problem for citizens of the Silver State.

When all is said and done, the purpose of the separation-of-powers constitutional principle has always been to protect citizens from the entirely natural, but dark, side of politicians: their virtually reflexive power-seeking.

"Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go," observed Montesquieu. A former président of the Bordeaux parlement, he knew the long history of the French monarchy's despotic ambitions, which the parlement had resisted.

James Madison, in a famous passage in Federalist 51, explained why powers were separated in the Founder's new constitution:

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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

However those auxiliary precautions — also written into the Nevada constitution 147 years ago — have, in recent decades, fallen victim to a seemingly transparent ploy.

Multiple government and government-supported agencies around the state have found that they can achieve short-term benefits for themselves through a subtle end-run around the electorate — giving well-paying "jobs" to members of the state legislature.

When state lawmakers are converted into subordinates — and thus de facto instruments — of local governments and tax-eating agencies, their role as representatives of Nevada voters is necessarily abridged and corrupted.

It is evident, wrote Madison

that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices.

Were they not "independent ... in this particular," he went on, "their independence in every other would be merely nominal."

Practically speaking, such financial arrangements between individual legislators and government entities are conspiracies — whether conscious or unconscious — to significantly weaken the constitutional role of Nevada voters and thus, to a discernible degree, disenfranchise them.

The hirings also, in practice, make these politicians members of both the "executive department" of Nevada state government and the "legislative department" — in the U.S. Supreme Court's words, "commingling ... these essentially different powers in the same hands,"

These realities were widely recognized in Nevada up until the late 1960s. When would-be lawmakers would ask whether they could retain their government day jobs while sitting in the Legislature, Nevada attorneys general would cite the barriers in the state constitution. Later, however, the AGs began ignoring the uniquely strict wording of Nevada's Article 3, conflating the article instead with differently worded provisions in other states' constitutions.

Why did that happen?

The most likely explanation appears to have been the shifting political tides, both nationally and in the state, as government employees gained increasing political power. Successful governors and attorneys general, after all, are rarely without ambition and rarely unaware of the political consequences of what they choose to do — or not do.

Yet Madison had hoped that such individuals' ambition would operate to defend the constitutional separation of powers. "Ambition," he wrote, "must be made to counteract ambition."

For about 30 years here in Nevada, however, whenever Article 3 has needed a serious champion, such ambition appears to have been absent.

This is not right. The people of Nevada deserve to reclaim their heritage.

It is not all about the politicians.

Steven Miller is vice president for policy at the Nevada Policy Research Institute. For more visit

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