Why government function is spelled out in Constitutions

[doc_strange]

A lot of constitutional (state and federal) discourse is carried out on the question of government over-reaching the powers granted to it. But powers are not the only things in there. The powers have purposes. There are also functions that are spelled-out requirements of the chartered government.

What happens when government abdicates adequate performance of those functions explicitly spelled out as its duty?

Worse, what happens when it abdicates adequate performance of those duties to better spend its money on ancillary functions many consider essential to those dependent on them?

Such a question is on the front burner in NH right now.

http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20100415/OPINION/4150318

Lawmakers who want to see why the courts can't sustain further cuts should walk the courthouse halls. They will see angry, anxious, tearful and frightened people hoping to have their problem addressed so they can get on with their life. They will find families in crisis. People who can afford a lawyer huddle in an alcove or at a table and confer in whispers. In divorce cases, at least one party will not have a lawyer 70 percent of the time, even though custody of a child or ownership of a home is at stake.

I think you can guess my position on this - but I will spell it out: I think impeachment would not be too much of a stretch. Thank goodness we still vote on governor and legislators every 2 years (which this same set of slobs is looking to change, by the by).

Some services may be "essential" to the recipients of same, but such things must be spelled out in that giant piece of paper under which we charter and regularly recharter the government. (Indeed, in NH, it is vastly easier to amend the state constitution than it is for the USA to do so, and it has been done on a regular basis.) Some, spelled-out-since-inception functions are there as requirements because they are essential to the very fabric of society. That the law have teeth (and not "oh, they can use 'mediation as an alternative,'" which is like saying anyone is allowed to steal, but only half) is the backbone of a "society of laws and not men." I'll also just go ahead and cut off the strawman argument that the lawyers don't need more money: This is about those who need access to justice. The more efficient the court system, the better funded it is, the less money the lawyers make, the less cases cost, the more that cases get won by the just and not settled to avoid the cost of legal representation, and ultimately the better society gets. Nuisance suits and SLAPPs are based on the cost of access to justice.

The adequacy of the court system has been an essential item in western law since at least the Magna Carta. (No really, look it up - people talked about overthrowing the King over stunts like this.) Ultimately, it is all that backs anyone's access to justice - and to the rest of the functions and services of the government. If the idea is that we can trust government to do its job without the courts, or that people can just get along or mediate, or that the courts should be ranked no higher than one or another of those other services and functions of government, it shows a terrible disregard for the rule of law and not men.

Comments

[maradydd.livejournal.com]

This is a subject near and dear to my heart, for a number of reasons. The Pennsylvania court system, for instance, is extremely overloaded, as are the district attorneys' offices, to the point where actual crimes are not being pursued (this has been affecting a friend of mine dealing with the weird intersection between family court issues and criminal court issues in the rural western part of the state, for the last several years).

The possibility that jury trials might be suspended, though, is horrific.

[unixronin.livejournal.com]

That is indeed frightening.

Honestly, though, I suspect that the core of the problem with respect to the courts is that the court system in the US is fundamentally broken. Large numbers of the cases clogging US courts are basically frivolous, whether it's liability suits from people sueing the chainsaw manufacturer because there wasn't an explicit warning on the chainsaw not to balance the running saw across your leg while you reposition the log, or the Federal government trying to throw someone in jail for lighting up a joint or for violating one of hundreds of thousands of laws that he had no reason to even be aware of the existence of without having a full legal research department. America is drowning under the weight of lawyers — we have almost 50% more lawyers than either doctors or police officers, one lawyer for every two nurses, almost eight times as many lawyers as dentists, more lawyers per capita than any other nation in the world — and buried under ever-increasing reams of law and regulation, all of which must be complied with, and all of which costs money to comply with and to enforce. It's little wonder the court system is buckling under the load.

[maradydd.livejournal.com]

Well, yes; and in practice this ends up meaning that those who can't afford private representation (or high-quality representation) are at a disadvantage in the system, which has been the case for, um, a while now. Far be it from me to oppose an efficient and fair system of torts; I'd even argue that Article III establishes as much about torts as it does about criminal trials ("Cases, in Law and Equity...", "...between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States..."), with the caveat that the NH constitution, which I haven't read, may very well have more or less to say about one or the other.

And yeah, don't get me started on drug law, or the way the DEA loves to assert (dare I say arrogate?) fundamentally legislative powers and continues to nip at the heels of the judiciary.

[unixronin.livejournal.com]

Well, yes; and in practice this ends up meaning that those who can't afford private representation (or high-quality representation) are at a disadvantage in the system

Oh yes, absolutely. As seen many, many times in lawsuits against large corporations that simply stall their opponents into bankruptcy. And I personally believe the legal principle that you can't sue the government to be prima facie absurd: The government, of all possible bodies, should never, ever be above the law. The laws that it passes should be as binding upon itself as upon anyone else, and it must be accountable for its actions.

[docstrange.livejournal.com]

I should have dealt with the "frivolous" item, too. According to the Chief Justice, less than 1/1000 cases even raise the frivolous question and of those even fewer are in fact frivolous. You really have to realize in the last 20 years the companies sued - and the people suing - have used PR to game the system. But even those cases are VERY few. 70% of civil cases heard in NH are over domestic issues. The rest are mostly landlord/tenant and contract or small claims. So, no, those aren't the reason.

I also think you have it backwards: The reason we have a lot of lawyers is because the work is already there - the courts are SO slow, so underfunded, and so burdened by the ordinary. That in turn leads to perfectly valid, but low-$ cases that might have been left be, showing up in court because the likely cost to the defendant encourages going for it. It also discourages contract cases from going to court because often enough more than half the value will be consumed in legal fees just getting to court.

It's nothing new - read Bleak House, which recounts with only some exaggeration the way the English courts were functioning before the major reforms took effect. It's time for reform in ours.

A guaranteed quick, just, and speedy resolution is essential to undoing all the evils you base your (causally inverted, in my opinion) post on.

[unixronin.livejournal.com]

I'm not sure I agree that we have so many lawyers because the work is there. The way it appears to me, we have so many lawyers because the practice of law was seen as a fast-track to wealth, and then it became necessary to create the litigious society to make enough work to go around. If the supply of lawyers didn't exceed the supply of legitimate legal work, there wouldn't be half as many ambulance-chasers.


Oh, I should also have added, I'm pleased the proportion of frivolous suits is so small in NH. It coincides well with my impression of most NH folks as basically pretty level-headed and self-reliant. California, on the other hand ... fer cryin' out loud, it seems like people sue at the drop of a hat there.

[docstrange.livejournal.com]

Hmm. What is your experience with the courts?

I ask because you seem to be getting it from media and Internet.

As for the lawyers just making work - think of the economics? How do they make work magically that someone is going to pay for? How does that explain the growth (and now cessation of growth) in the profession?

Having seen several cases cost absolutely farcical amounts - entirely due to the ineptitude and underfunding of the court in question - I really don't think the lawyers are "making" the work. It's there and the courts are in the crapper.

NH isn't the counter-example - it's the barebones case. Its courts are going in the crapper entirely due to a funding curve that hasn't kept pace with inflation, let alone the growth in population. Probably a profitable time to become a NH attorney, but a bad time for everyone else. And yet it's attorneys complaining, because of course while the fees are nice, it's nicer still for most attorneys to reach results for their clients.

[ilcylic.livejournal.com]

As for the lawyers just making work - think of the economics? How do they make work magically that someone is going to pay for?

They become congresscritters. ;)

[docstrange.livejournal.com]

Or directors of regulatory agencies.

*shudder*

[unixronin.livejournal.com]

When I lived in CA there was a constant barrage of newspaper ads, radio spots, even billboards, with messages that basically amounted to "Feeling butt-hurt? Need money? We'll find somebody to sue for you (for a fee)." The classified sections of the papers were full of no-money-up-front "hired gun" lawyers.

Sure, I'll freely admit I haven't done rigorous research on the subject. There are only so many things that one person can study in depth. But all that expense to drum up business isn't a sign of a profession that already has all the business it can handle.

Could cessation of growth mean that they finally hit saturation — or, perhaps more to the point, is all that advertising for business plus cessation of growth a sign that the profession hit saturation some time back, and the pipeline just finally emptied?

[docstrange.livejournal.com]

Lawyers advertise when they don't have clients flooding the doors. In reality, a lot of people became lawyers and found there wasn't enough work. The ads may have added some case burden where people would have previously shrugged off stuff to bad luck, but I seriously doubt that is the big issue. In federal courts, it wasn't lawsuits but petty drugs cases that were clogging the system; in IL it was vast amounts of family law cases because the state became so very sewn up in every aspect of family law for those receiving state/federal support; and in NH it appears to be little more than population growth.

The governor is cutting 85-ish exec branch jobs, and calling for 60-70 in the Judicial branch. Sounds fair! Except that's <1% of exec branch jobs and 10% of judicial branch jobs.

Buh-bye speedy trial.

Also, consider it cost shifting. For every day a prisoner's trial is delayed, not only is there an increasing chance of missing the "speedy trial" deadline required by the US Constitution, but the COUNTY pays to keep the prisoner locked up. That's right, the cost "savings" is just cost shifting.

[unixronin.livejournal.com]

No argument with that.

[unixronin.livejournal.com]

While the points the article makes are entirely sound, it also has to be said that one can't get blood out of a stone. The state has already had to borrow Federal money to cover extended unemployment benefits. Thrifty though NH is, it — like many other states — is staggering, and it doesn't have the Federal government's luxury of simply declaring new money to exist by fiat.

This is not New Hampshire's problem alone. All over the US, the legacy of decades of fiscal irresponsibility is coming home to roost, and sinking boats are pulling sound ones down with them. The official inside-the-beltway party line may be that "the recession is over", despite the fact that the economy is still bleeding jobs, but I still believe we have not seen the worst of this yet.



Afterthought:
We should also not forget that a vital purpose of a constitution is to enumerate not only the things that a government is required and authorized to do, but the things that it is explicitly forbidden to do. (However hard Congress tries to pretend otherwise and sweep the latter under the rug.) No government not of idealists will ever willingly decline power that it has the opportunity to take, nor ever willingly give up a power that it has once seized for itself whether openly or by subterfuge.

Once again, I find myself thinking that the Vikings had wisdom we could learn from. A part of the operation of the Althing was that once a year, they would pile up all the books of law and burn them. The Althing then got to keep as many laws as its members could remember and write down again in twenty-four hours. If no-one could remember a particular law in that period, it clearly wasn't important enough to need keeping.

[maradydd.livejournal.com]

No government not of idealists will ever willingly decline power that it has the opportunity to take, nor ever willingly give up a power that it has once seized for itself whether openly or by subterfuge.

For a fascinating look into the psychology that enables this phenomenon, have you read Bob Altemeyer's The Authoritarians?

The Althing then got to keep as many laws as its members could remember and write down again in twenty-four hours.

This is pretty delightful. Do you have a source on that? I googled but came up empty.

[unixronin.livejournal.com]

Sorry, I don't have an online source available to hand. I read it many years ago in a book on the history of the Norse culture.

[ilcylic.livejournal.com]

Yeah, but if you tried that trick these days, you'd get a fine from the EPA.

[unixronin.livejournal.com]

For open burning of toxic waste....? :)

[docstrange.livejournal.com]

I don't think there's more than a tiny percent of lawyers out there that don't consider the current state of the CFR to be anything less than fearfully obtuse, mental blight.