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]

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.