The Oklahoma Bar Journal October 2026

T HE LATE U.S. SUPREME COURT JUSTICE ANTONIN SCALIA once observed the true genius of the American constitutional experiment was found not in the “marvelous provisions” of the Bill of Rights but, rather, in “the structure of our government.” 1 Without a structure sufficient to “prevent the concentration of power,” those marvelous provisions become mere “parchment guarantees.” 2 Despite this warning, Oklahoma’s constitutional structure has not been enforced with a zeal Justice Scalia would admire. Stemming from the cases of In re the Application of the Oklahoma Department of Transportation, Series 2002 (ODOT I) 3 and In re the Application of the Oklahoma Department of Transportation, Series 2003 (ODOT II) , 4 collectively the “ODOT bonds cases,” Oklahoma has adopted a functional, rather than formal, approach to deciding separation of powers questions. Unfortunately for liberty, this approach lacks sufficient safeguards to prevent the concentration of power.

competing theories: formalism vs. functionalism. The formalist theory is concerned with the Constitution’s textual allocation of powers to create mandatory boundaries which must be strictly enforced. A given branch may not be denied the exercise of its proper powers – nor permitted to exercise the proper powers of another branch – on account of practical considerations. By rig idly assigning power, formalism preserves clear lines of democratic

throughout the text’s interlock ing provisions: power is divided between a bicameral Legislature, 8 a plural executive under the governor, 9 and a multi-tiered judiciary. 10 Taken together, the three branches provide a structure in which governmental power is disbursed widely.

THE CONSTITUTION’S STRUCTURAL DESIGN

The Oklahoma Constitution “expressly and inflexibly commands that the functions of government be divided into three [branches].” 5 This constitutional design was intended to prohibit each of the three branches from “arrogat[ing] to itself control over either of the others.” 6 Being “the basic princi ple of [Oklahoma’s] constitutional system,” 7 this design is interwoven

FORMALISM VS. FUNCTIONALISM

Fidelity to the separation of powers is chiefly measured by two

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL