Adapted from e-mail conversations with RLC of 29, November and 13, December 1999. His comments are in blockquotes with a red bar to the side.
Sir, that it must rule on whether a war is Constitutional or if a lawful emergency exists after a specified amount of time is getting it to close to the daily workings of government. Sir, I think this structure virtually guarantees a Constitutional crisis with courts at heads with the Council and the Parliament in the probable heat of a political crisis. Sir, not a good time for the court to asserting itself it national survival is at stake.
The courts are always intimately associated with the workings of government, they can be expected to rule on the constitutionality of every law and policy which is enforced to any degree at some point. Why should we deprive something so serious as war the same scrutiny? The test is simple enough and can be ruled upon by even the most novice judge:
And we place the best leagal minds of the country to this test... It's not a terribly strict test and almost every concievable war would pass it, and given the possibility that the court could rule something to be "harmless error" dosn't even insure the end of the prosecution of all wars which don't pass it, but it does make the constitutional provisions on war enforceable, and so likely to be followed.
There's only one doubtfull case which I can spot: If the government is violating the Article I and III rights of citizens in its conduct of a war, is the war itself unconstitutional by virtue of that? (the latest draft resolves this problem by clarifying that they are to rule seperatley on particular implementations which are challenged.)
Sir, I am still do not like the court having the authority to rule and a war unconstitutional. Sir, this may be the reason our founding fathers invented a triumvirate of power blocks in governance outside the courts.
Our current system is no better safeguarded than the one described (which has exactly the same checks and balances, with a few extra in this system to compensate for a unicamerical parlaiment)
The question is: Who else could I use? The Board of selectors?
The supreme court is already charged with running the executive functions of the administration of the entire judiciary, and presumably would have a staff and budget (perhaps even appointment powers, I do need to clarify this in the next draft) for that purpose. This is a natural consiquence of having an independant judiciary, so I would beg to disagree with you on the point that they have no experience in governmental administration.
Sir, yes they would have experience in their own area but to assume they are going to know how to run the police and the prosecutor and maybe in a matter of days if not hours is highly questionable.
First of all, they are not in direct control, they have override and policy power over an existing administration (in the latest draft, this is a set of interrelated locally managed and subject matter departments under a national administration) The administration runs itself to a certain extent, they only tell it what to do by setting policy, overriding the occasional decision, and occasionally issuing an order directly.
This is exactly the same level of power which the Council has over every administration in the government in peacetime. They don't manage the whole beauracracy themselves, they just set the policies and override when the executives get out of line.
Sir, I am also not comfortable of the police and prosecutor changing bosses. Sir, there are bound to be disruptions and this may loom large in someone's political calculations as to whose jurisdiction they belong.Well, the police and prosecutor are already substantially unified under this system, so there would be no significant difference if you were in the custody of the leagal system or of law enforcement since they're both bound by Article III.
Sir, is it the supreme or lesser courts who would be overseeing the police and the prosecutor? Sir, isn't it important for justice's sake to keep the prosecutor separate from the judiciary?
It is the Supreme court. I will constitutionally forbid them from interfereing in the prosecutorial discression in any case (which would vest locally in wartime, while it vests nationally in peacetime), and the Supreme Court is unlikely to be conflicted in terms of prosecution.
Wouldn't the prosecutor have no oversight impossed on him and have great leeway in what he chose to do or not to do?
Yes, but this is in no way abnormal. Prosecutors already have broad discression, in our system they're totally independant and checked only by the courts.
The nationals and locals still check each other to some extent in wartime, and cases could be expected to continue until a normal system of control was re-established.
Also, what is to guarantee that this what the Supreme Court will do or how it will act?
Because this is the entire extent of executive power in my constitution and there is an entrenched beauracracy (not to mention the other two branches of government) to fight them if they try to go further.
Sir, under civilian government a relatively less stress you may be allowed to live or not be so harshly punished while in the name of national emergency lots of unpleasant things could with or without the knowledge of the court. The court might fear interfering directly into police work or it could be entirely dismissive of it and force itself on the police.
Entirely possible, but handled by other provisions. The courts are already the overseers of the police, and everything the police do eventually comes to them unless the criminals are released (and even then in the case of lawsuits), this changes in no way by them taking more responsibility. Largely they'll do as they've always done, take a mainly review and policy position except when they need to issue an order.
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