Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Wednesday, September 14, 2005

Congressional role in defining rights

Judge Roberts has been reassuring: He's about the Constitution, not the rule of man.

His Youngstown references are an indication that Bush could be already skating on thin ice.

Youngstown is the framework Roberts uses to analyze the legality of Presidential actions during wartime. This doesn't mean Roberts will blindly defer to the President, although he already has in re Hamden.

It means he has a solid framework in mind to evaluate Presidential conduct. That is a good thing.

Going forward, the Congress needs to codify these constraints so we do not have more 9-11, Iraq WMD, and Katrina bungling.

If the existing rules are already there but were ignored, then we have to talk about impeachment.

Either way, Congress needs to act. With inaction, Congress is the one that is to blame, just as a parent is to blame when a wayward toddler sets the house on fire.

. . .

One issue the Senators continue to raise with Roberts is "what does the Judge think" about certain issues.

For example, Senator Biden raised the issue about difficult end of life issues: A family's right to end the life of a loved one; when can/should the family make decisions in the interests of a family member; and what is to be done when outside parties assert a superior or contradictory right/interest.

However, the cases before the court indicate that this right is not firmly established; or that the legislature may take an opposing view.

There's always the concern that the express wishes will not be recognized; or that other factors will intervene to affect what the individual would prefer.

. . .

Biden's concern is understandable. However, springing from Robert's appearance during his confirmation hearings today, it is clear that the real responsibility lies with the Congress. The court can only rely on the law, not on what someone may have intended.

Bluntly, if the Senators "aren't happy" with the court opinions, then the Congress needs to exercise some leadership: Define the rights which the court "doesn't seem to understand."

For example, after an individual expressly states their intentions and goals in writing, confirmed, and validated as authentic, should be respected as a lawful desire and decision to end one's own life.

The point isn't that the court should or shouldn't recognize living wills. Rather, the issue is that if the public and legislature "doesn't like" what the courts are doing, the goal shouldn't be to blame the courts.

Rather, the goal should be to specify the rights in a constitutional manner that would permit what the individual desires to be done on his behalf.

. . .

There may be a time when the individual will no longer have to worry that the document may or may not be respected as in the Schaivo case.

How is this to be done? As with the statute of frauds in re real estate and employment contracts exceeding x-number of hears, the agreement must be in writing.

Further, not that wills are writings which are relied upon, although the author is not longer able to have inputs.

The concept is not novel. What is new is that we have Judge Roberts explicitly stating during a time when we have blogs, and we know that it's not up to the courts to decide.

I envision a day when the individual can explicitly state in writing and in a legally admissible way like a will, in a manner and form that the courts will recognize as an enforceable contract before death. Without fear that the decision will be second guessed, interfered with, or muddied by parties who arrive after the table has already been set.

. . .

Clarity in the fog must come from Congress. The courts will only help identify where better guideposts are needed.

The leadership problem lies in Congress. If the public isn't satisfied with the "convoluted mess in the courts" or the "bizarre nature of the Congress," then it is time for the public to get very specific with what they want.

Congress needs to explicitly state these rights: Whether a family member may or may not act on behalf of a family member; under what conditions; and how written instruments are to be considered before making the final decision.

Congress and the state legislatures could establish a new body of law related to end of life, health, and other medical issues, thereby permitting individuals to: Make their own decisions; and codify the parameters when the individual has absolute control, or when the decision and capacity for these decisions are not recognized.

. . .

Katrina reminds us that the national and local leadership needs much oversight, guidance, and direct involvement.

Not simply because it is a democratic right, but because to do anything less leaves us with disasters.

Indeed, the public pays significant funds to corporations and government to act on our behalf. We can either use referendum, the law, vote differently, or change the statutes.

Katrina shows us to what degree of specificity this government requires to have its instructions delineated.

Government shows it cannot rely on vague principles in the Constitution, but is more like a novice cook, needing close oversight, instructions, and a watchful eye to ensure they are mixing the ingredients correctly.

. . .

Katrina shows there are many meetings and promises before and after the disaster. The inspector generals and auditors dutifully reported the results. But government remained unresponsive.

The results command reform. Anything else invites more Katrinas and 9-11s.

This government has struck out twice. The public must be prepared to reform the government interactions.

It is the job of the public to transform this government. We need a new playing field, with reformed rules, and new players in the transformed game.

It used to be called baseball where the public simply watched the players and the umpire.

We need a new game. One where there is recognized audience-involvement in the game, and the ability to affect the outcome, not simply make noise that the players may or may not respond to.

. . .

Things need to change. Otherwise, we're stuck with more of what self-evidently doesn't work. That's foolish.

There was a time when there was no America or Constitution. Someone had to create and conceptualize something better.

For too long, this nation defined the tradeoff in terms of safety or security; and liberty or defense.

We can transform to something that is more responsive, without requiring there to be a tradeoff in either the safety-security or the liberty-defense equations.

I propose that a larger view be taken. Constitutional rights can be advanced while preserving what we have.

So too can there be improvements and transformations to something more effective, responsive, and functionable. Not in terms of process, but in terms of results, outcomes, and responsiveness.

. . .

It is time to debate a credible and novel reform to the constitution: A mechanism to have a truly responsive branch of government that appears, without notice, and interferes with the three branches to ensure they do their job.

Yes, there needs to be a fourth branch of government that directly injects itself into all three branches to ensure they are doing what they are doing.

This role once belonged to the media. But checks and balances needs to be real, not given lip service from the other two branches.

It may be too soon. Let us hope the catalyst for reform is Katrina. Otherwise, the next fatal wake up call could severely damage the patient. That would be less than ideal.