A professor of law at the University of Kansas who testified in the regular legislative session to the Senate Judiciary committee about the separation of powers said then and reiterates now their importance in government.
“Separation of powers is a key principle of our form of government,” said Professor Lumen “Lou” Mulligan. Mulligan is the Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at KU. “At the end of the day, any time you’re having conflict between the branches, it’s going to be impossible to have a good fences make good neighbors approach.”
Mulligan reminds us that constitutions are written to deal with the future.
“It’s hard to speak with clear precision in those areas,” Mulligan said. “Typically, you’ll hear courts talk about things in terms of broad principles.”
With that said, the people of Kansas were frustratingly specific in the 1960s when they amended article six of the Kansas constitution.
“The people of Kansas have insisted in article six of the constitution that the schools receive suitable funding,” Mulligan said. “They put a funding provision into the constitution. When you put things into a constitution, the judges enforce them. That’s how it goes.”
Mulligan has said that the provision being so specific has its issues.
“In terms of drafting, one might not have put that provision in there and had a funding provision in the state constitution,” Mulligan said. “Certainly, you don’t see anything like that in the Federal Constitution. Once it’s there, it’s hard for the judiciary to walk away from it.”
Ultimately, the decision as to what the Kansas constitution says resides with the people.
“If the people do not want the judiciary to interact with school funding, then the people should change article six,” Mulligan said.
However, efforts to amend the document in previous sessions have not received enough legislative support to even be put to the people for a vote.