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]

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.