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

[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.