Judson Phillips, founder of Tea Party Nation and Associate Director of TheTeaParty.net, has been defending the 7th Amendment for much of the past year, and is among the national conservatives most quoted on the unconstitutionality of federal limits on medical malpractice awards. Judson’s years of experience in the courtroom as a litigator and prosecutor, and his years of political activism, endow him with special credibility on these issues. Last week, he challenged the conventional wisdom on the impact of Texas state limits on medmal awards in a post and a radio interview.

Judson posted ‘A hollow liberty’ on TeaPartyNation.com on July 9. In it, he discussed the deterioration of the constitutional right to a civil jury trial through tort reform laws. He then described a famous medmal case in Texas in which the victim was left with no means of exercising his right to hold the negligent doctor accountable in court, thanks to Texas medmal limits. Here is an excerpt:

“What good is a right if you cannot exercise it? That is not one of those, if a tree falls in the forest and no one hears it, does it make a sound questions. Our Constitutional rights are under assault from various sources. Those who want to attack our rights have learned they can never get those rights repealed, so instead they simply try to make it impossible for those rights to be exercised.

What happened to Charles Caldwell is a terrible example of what has gone wrong. Caldwell suffered from Parkinson’s disease and went to a nursing home after surgery to recover. Among other things, a feeding tube was placed in his stomach because he could no longer swallow.

His son and daughter in law Bill and Kelly Putnam were visiting his father when the nurses at Signature Pointe Nursing home tried to give medications to Caldwell through his feeding tube. When the medicine did not go down the right way, the nurses tried the old fashioned method of “if it doesn’t go, force it.” After three tries it did not go. Finally Caldwell began to struggle and thrash. The medicine had gone into his lungs instead of going into his stomach. Caldwell drowned on medicine in front of his family.

When Putnam decided he was going to sue over his father’s death, he found the hard truth about Tort Reform. No lawyer would take the case. It was not that it was not a strong case. It was a strong case. Simply put, because of Tort Reform lawyers can no longer take those types of cases because they are no longer economically viable for the lawyers.”

Judson reminded his readers that it’s impossible for us to exercise our 7th Amendment rights if we state-imposed limits disincentivize lawyers to take the case. “By imposing caps on so-called “non-economic” damages, lawyers can no longer take these types of cases. Lawyers have staffs they have to pay. They have expenses such as the costs of their offices. Plus in cases such as these, the lawyer will advance the costs for expenses such as the required experts who must review cases before a suit is filed. Without a lawyer, the 7th Amendment Right to a jury trial is effectively gone.”

And he referred to recent studies concluding that Texas medmal limits have neither kept health care costs down nor attracted doctors to Texas. “The myth of tort reform is that it will reduce costs and will attract doctors to the profession. Unfortunately as with all myths, that one is untrue. Healthcare costs in Texas have not been reduced, nor are doctors flocking to Texas.”

Judson Phillips concluded with a warning for Americans about the future if Congress imposes a federal limit on medmal awards. “What has happened is that another right has been lost. Freedom is reduced and liberty has taken another step towards becoming simply a hollow shell.”

He was interviewed about this issue on July 11 by Terry Lowry for his nationally syndicated ‘What’s Up’ program, heard weekdays on 12 radio stations and on Sirius Channel 131, Family Talk Radio. You can download and listen to the first segment here and the second segment here. That program is the only nationally broadcast program on radio or TV to regularly defend and discuss our constitutional right to a jury trial for civil rights and deserves our support.

In a Washington Post op-ed posted October 28, Virginia Attorney General Ken Cuccinelli promised to file suit in federal court against a federal tort reform bill should it become law. “And if it were ever signed into law — by a Republican or Democratic president — I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later).”

Attorney General Cuccinelli strongly objected to S. 197, a bill sponsored in the U.S. Senate by eight Republicans, which would impose caps on awards in health care-related lawsuits and install a federal wage scale for contingent fee attorneys involved in such suits. The bill was slipped into a Senate Republican “jobs bill” in October by Republican leadership without the knowledge or approval of numerous Republican Senators, just to appease the AMA and other medical groups clamoring for special federal protection from civil liability. Attorney General Cuccinelli, a rising star in the conservative community for his lawsuit against ObamaCare and assertive defense of conservative legal positions, emphasized the constitutional right of each state to protect and run its local civil justice system:

“With Senate Bill 197 — legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award — several Republican senators have reminded us that federal impositions on states that run contrary to the U.S. Constitution and to the spirit of federalism have never been the sole prerogative of just Democrats. As a state attorney general struggling to hold back a flood of impositions by the Obama administration that violate federal law, the Constitution or both, it is disappointing to see so many Republicans making the same types of mistakes that President Obama and his allies have made…

Senate Bill 197 takes an approach that implies “Washington knows best” while trampling states’ authority and the 10th Amendment. The legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia’s) against the individual mandate of the 2010 federal health-care law. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits. How does this sort of constitutional disconnect happen?“

Attorney General Cuccinelli’s promise to sue is the most forceful of a series of conservative and Tea Party-side condemnations of the Senate bill and of federal tort reform legislation in general. The libertarian Cato Institute recently announced that caps on medical malpractice lawsuit awards would endanger patients and wouldn’t reduce health care costs. The attorney who wrote the Senate Republicans’ court brief against ObamaCare, Carrie Severino, publicly urged Republicans to remove S. 197 from the jobs bill before introduction, but they ignored her. Professor Randy Barnett, one of the counsels arguing the key anti-ObamaCare lawsuit in federal court, accused S. 197 backers of being “FINOs” (“Federalists in Name Only”). In May, Professor Barnett accused House Republicans who backed a bill similar to S. 197 of being “fair-weather federalists.” Six conservative legal experts, including two who regularly criticize trial lawyers, joined Professor Barnett at that time in characterizing bills to federalize medical malpractice lawsuits as an unconstitutional violation of states’ rights. The non-partisan National Conference of State Legislators joined them in a letter to House Republicans against the House bill.

The AMA and its allies in the medical profession have pushed the federal tort reform bills, just as they have backed ObamaCare with its equally unconstitutional individual mandate. For 30 years, they’ve used their political muscle inside the Beltway, and millions of dollars in political contributions across America, as the way to persuade Congress, especially Republicans, to enact special immunity from civil liability, regardless of the constitutional implications. Republicans will have to ignore the medical profession’s misshapen view of Washington as the center of political power in order to protect our constitutional rights. Attorney General Cuccinelli’s forceful warning might be the nail in the coffin of the AMA’s dreams.

The inside-the-Beltway mentality that values campaign dollars over states’ rights is about to strike again. The chairman of the House Judiciary Committee, Rep. Lamar Smith of Texas, is about to force fellow Republicans, for the third time, to vote against the 7th and 10th Amendments and for H.R. 5, the federally imposed limit on awards in medical malpractice lawsuits, which is based on the same interpretation of the Commerce Clause as Obamacare and is just as unconstitutional. Not only that, but he’s doing it to claim that his committee is contributing billions of dollars of “savings” for the federal budget, based on CBO estimates. That’s the same CBO that missed the Obamacare budget estimates last year by a mere 100% and has a lousy long-term record of estimating budget savings over ten years. None of that matters to Chairman Smith, who’s apparently trying to convince “Big Medicine” that they should funnel their campaign contributions to Republicans.

Chairman Smith couldn’t quote a single constitutional scholar, Republican President or Founding Father for federal tort reform just three weeks ago in 8 hours of debate on the House floor over H.R. 5. Again he ignores states’ rights, promotes constitutional hypocrisy, and uses phony CBO numbers – that’s conservative leadership? It will be interesting to see what committee members Reps. Ted Poe, Louis Gohmert, James Sensenbrenner and Steve King do about Chairman Smith’s push, since all four refused to vote for H.R. 5 on the floor.

This hasn’t been lost on one Tea Party leader, Judson Phillips of Tea Party Nation, who slammed Chairman Smith by name last week in a column titled, “Washington Games.” Mr. Phillips urged Chairman Smith to claim real savings in Washington waste and wrote, “Instead, Lamar Smith wants to play the usual Washington game. He wants to use his position to punish those he disagrees with, pass legislation that is every bit as unconstitutional as Obamacare, while ignoring the real issues of out of control spending that we face.”

Games, indeed.

The Constitution & Civil Justice subcommittee of the House Judiciary Committee held a hearing today on a proposed Constitutional amendment to give victims of crime additional rights during and after the prosecution of the criminal. Some states allow the victims to participate in the sentencing or plea settlement process or in other ways, and some do not in any part of criminal proceedings. The bipartisan “Victims’ Rights Amendment,” or VRA, was first proposed by President Reagan and has been championed by Members of both parties in Congress and Presidents of both parties.

One of the provisions in the VRA would entitle victims of crime “to restitution.” That’s great – I’m all for it – with no argument at all. But Committee Members should remember that the Founding Fathers already recognized that right by fashioning a civil justice system based in the God-given right to have civil claims heard before a local jury. The 7th Amendment was the only amendment in the Bill of Rights unanimously adopted by all of the original states. It reflects the centuries-old recognition of the right to civil jury trials in British law, back to the Magna Carta in 1215, and the Biblical recognition of that right in various texts in the Old Testament. The Founders described that right as “sacred” and “a valuable safeguard to liberty.”

Many victims of crime have, over the decades, exercised that right to pursue the assets of the criminal after the prosecution is completed. The successful civil suit against O.J. Simpson by the family of Ronald Goldman, who was killed in the attack, comes to mind.

And American victims of terrorism have had the specific right, added to federal law in the 1990s, to pursue restitution against state sponsors of terrorism. I’ve assisted victims of the 9-11 attacks, Qaddafi s reign of terror, and Iran-sponsored terrorism to obtain a measure of justice through legislation and administrative action. Last year, Congress enacted a special section in an Iran sanctions act to enable several groups of American victims to enforce a judgment against Iran in federal court. Recently, the first judicial ruling after that bill’s enactment was favorable to the victims, a promising development.

Members of Congress should remember that Founding Fathers didn’t consider the right to restitution to be exclusive to victims of crime or of any other specific act. They created ONE civil justice system, grounded in the unalienable right to a civil jury trial, for civil claims of all types and all origins. Victims of medical malpractice and product liability have an equal right in the eyes of God to seek restitution as victims of crime and international terrorism, and Congress shouldn’t seek to abridge those rights through “tort reform” or artificial caps on civil damages. Congress should spend its energy upholding 7th Amendment rights for all Americans in all circumstances.

I’ve written often about Rep. Ron Paul’s support for real Constitutional conservatism and states’ rights, including for protecting state civil justice systems from federal takeover through “tort reform” or limits on state medical malpractice lawsuits. Recently the conservative Club for Growth issued a “Presidential White Paper” about Dr. Paul’s votes on key issues, and they devoted an entire section to “Tort Reform.” It’s obvious that on this issue, the CfG is no more of a “Constitutionally conservative” group than many groups in the business community – check out the following comments on Dr. Paul’s stand:

The American economy suffers from excessive litigation which increases the cost of doing business and slows economic growth. The Club for Growth supports major reforms to our tort system to restore a more just and less costly balance in tort litigation.

Representative Paul opposes federal tort reform for the same reason he opposes most federal solutions–he believes the federal approach “damages the Constitution by denying states the right to decide their own local medical standards and legal rules.” To that end, he has voted against many tort reform measures in Congress…

Instead of traditional federal tort reform, he proposes “private contractual agreements between physicians and patients” that “enables patients to protect themselves with ‘negative outcomes’ insurance purchased before medical treatment.” In theory, Paul’s solution may help alleviate the situation, but it is politically untenable. While Paul’s idealism is laudable, he has not offered a viable alternative for dealing with a problem that is hurting American consumers and businesses, while diminishing our international competitiveness.

So when it comes to the civil justice system, the CfG treats the Constitution as just a “laudable ideal” that isn’t “viable” in dealing with “problems.” There’s nothing Constitutional about that stance. The Founding Fathers didn’t think that way. Dr. Paul doesn’t think that way, thank God. Neither do Republican Members of Congress like Reps. Ted Poe, Lee Terry, and Morgan Griffith, or Sen. Tom Coburn. Seven nationally respected experts on the Constitution, the National Conference of State Legislators, and Tea Party Patriots co-founder Mark Meckler don’t think so either. They recognize that “a problem that is hurting American consumers and businesses” is no excuse for cutting the Bill of Rights in half.

The Club for Growth’s disdain for Constitutional limits on federal power is closer to the views of the pro-ObamaCare crowd than it is to the Founding Fathers or the Tea Party movement’s views. To the Club for Growth, the Constitution and Bill of Rights are movable targets subject to negotiation and the impact of lobbying and campaign contributions, not a set of firm principles of limited government protecting God-given, “unalienable” rights. Candidates seeking the support of the Club for Growth should be wary of their demands.

Two important Republican leaders sent signs in the past week that they finally recognize that federal tort reform laws are an unconstitutional abridgement of the right to a civil jury trial and each state’s right to run their own civil justice systems.

Rep. Paul Ryan gave an important speech recently at the Hoover Institution on his suggestions for reforming health care. I was pleasantly surprised to see him step back from his previous proposals for federal tort reform. In his Hoover Institution speech, he didn’t mention limits on medical malpractice lawsuits or tort reform at all. Contrast this to Ryan’s “Path to Prosperity,” the basis of the House Republican budget resolution, which included caps on noneconomic damages from health care-related incidents. That proposal, the long-time centerpiece of the federal tort reform agenda, was condemned as “fair-weather federalism” by conservative legal experts, such as top anti-ObamaCare counsel Randy Barnett, and opposed even by two proponents of lawsuit limits, Walter Olson and Ted Frank.

Then former House Speaker and Republican presidential candidate Newt Gingrich released his new “21st Century Contract With America,” with pages of new ideas for consideration by Republican voters. Early in his discussion of his legislative proposals, he states that replacing ObamaCare requires “lawsuit reform to stop the frivolous lawsuits that drive up the cost of medicine,” repeating the myths perpetrated by medical groups to hide the cost of their own deadly errors and wasteful practices. But beyond that, he has no specific proposal, such as the unconstitutional “caps on noneconomic damages” cited by so many politicians. For Gingrich, who has been a longtime advocate of federal interference in state tort law, this is progress; it reduces the mention of “lawsuit reform” to the status of a throwaway line.

Too many wise conservatives who say they value the Constitution and Bill of Rights remain ignorant of the facts that (a) neither health care nor tort law are among the enumerated powers in the Constitution and (b) the Founders added the 7th and 10th Amendments as reinforcements against unlimited federal power. Maybe the silence of Rep. Ryan and Speaker Gingrich in their recent pronouncements are evidence that the facts are finally sinking in among Republican leaders out there on the campaign trail.

On September 8, I reported on the latest effort in Congress to enable victims of the Deepwater Horizon disaster to hold BP and its partners accountable in court. Key Democratic and Republican Senators are attempting to compromise with shipping interests and their Senate champions, who oppose any change in maritime liability law, and end the unfair discrimination in federal law faced by the BP rig victims’ survivors. If the 11 workers killed on the rig had instead been working on land, or even hovering on a helicopter near the rig, their survivors would not have their 7th Amendment rights so unfairly limited by decades-old laws enacted before anyone dreamed of a floating oil rig. But old habits die hard, and shipping interests continue to enjoy economic and political advantages that apparently override, in the halls of the Senate, Constitutional consistency and American principles of equal legal treatment for all. Sen. Rockefeller cut more provisions from his bill. S. 3755, in an effort to mollify the opposition, and then tried to move the bill swiftly through the Senate, but numerous Senators have objected. The week ended with no action. It has now been 79 days since the House passed the SPILL Act by voice vote of both parties, with no response by the Senate.

To date, there hasn’t been a single minute of open debate in the Senate on any bill. All of the maneuvering and wrangling is being done behind closed doors, in an effort to quickly pass something that helps the victims before the Senate recesses for the election. But back-room discussions also empower the shipping interests and enable their Senate champions to avoid public scrutiny. If no deal can be made very soon, the Senate should face its Constitutional responsibility to publicly debate, write, and vote on a bill. The Senate should not adjourn without restoring the 7th Amendment rights of Americans injured or killed on sea-based work platforms. They should be given a chance to prove their case against BP in court. It’s the Constitutional way.

Welcome to a new website designed to inform Americans and influence policymakers about one of our basic Constitutional rights and the efforts to degrade that right. We want to educate the public and policymakers on the centuries-long history of the right enunciated in the 7th Amendment of the U.S. Constitution to a jury trial for civil suits, the accelerating erosion of our 7th Amendment rights, and the current issues illustrating the problem and need for restoration of the Founders’ original intent. A string of court decisions and political developments are aimed at limiting the jurisdiction of the courts in civil suits; either limiting the role of the jury in civil suits or eliminating the jury altogether in favor of federal regulators through preemption; and/or unilaterally imposing onerous filing burdens on plaintiffs. Too often, discussions of these issues are trapped in the swirl of partisan politics without reference to the basic right, for which our ancestors fought and died for centuries, to seek redress over a civil wrong before a jury of peers. The limitation of Americans’ 7th Amendment rights has practical implications for efforts in a broad range of activities, from the prevention of illegal discrimination and protection of religious liberty, to ensuring the safety of consumer products, and even battling international terrorism.

The vast majority of Americans apparently don’t realize that the right to a civil trial by jury has its roots in the U.S. Constitution and the Bill of Rights, the first ten amendments drafted by Founding Father James Madison of Virginia, proposed to the states in 1789, and ratified in 1791. Madison drafted the Bill of Rights, including the 7th Amendment, in response to objections by delegates to the Constitutional Convention that the new Constitution did not protect certain basic human rights. The right to a civil trial by jury has its roots in almost 800 years of English law and is a corollary to the right to a criminal trial by jury. Article 39 of the Magna Carta, signed in 1215, can be translated as, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” With the ratification of the Constitution and Bill of Rights, the United States built upon the Magna Carta and expressly limited the powers of the sovereign in favor of the protection of “unalienable,” meaning God-given, individual rights. The degradation of any Constitutional right enunciated in the Bill of Rights threatens the entire superstructure of American Constitutional law and individual rights.

We will mix the historical precedent with the current outcome, the theoretical basis with the practical impact. We will quote the Founding Fathers, legal scholars, advocates of open access to civil justice in accordance with the 7th Amendment, and knowledgable political figures. We will put our readers on notice about upcoming events, pending legislation, and judicial decisions. I would welcome additional Contributing Experts and invite anyone with expertise who would post often here to contact me. I’ll also post guest articles and invite your submissions. We’ll have Twitter and Facebook pages available to post quick announcements and build an online community.

This website is my idea and is personally designed and funded, with no impetus or influence from consulting clients or any entity. The views and information expressed here are solely the responsibility of the Contributing Experts who post here and myself. My bio, including a description of my consulting business, can be found by clicking the “About” tab, but in summary, I am a lifetime Republican and a “Constitutional conservative.” I served as a political appointee of the Reagan Administration from 1983 until 1988; was a Republican counsel on Capitol Hill; and was nominated by President George W. Bush for a Presidential appointment, from which I withdrew after a Senate hearing. I’m dedicated to promoting the original intent of the Constitution and the Bill of Rights, and this website will serve that purpose. I look forward to your reasonable comments and suggestions.

In Downes v. Bidwell, 182 U.S. 244, 282-283 (1901), the Supreme Court equated the right to “free access to courts of justice” with the rights of freedom of expression, freedom to worship, and freedom from unreasonable searches and seizures and noted that all of them were “indispensable to a free government.” Here’s the full quote:

We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. Of the former class are the rights to one’s own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one’s own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are indispensable to a free government.

Does the current Supreme Court so respect the 7th Amendment right to a jury trial for civil suits? See my previous post.

The nonpartisan National Conference of State Legislators has informed Congress of its “strong, bipartisan opposition” to the enactment of H.R. 5, the bill to sharply limit all civil suits against health care providers, including nursing homes, hospitals, and insurance companies. In the letter, NCSL defended the rights of the states to enact its own liability statutes and hold companies accountable before local juries. NCSL is also planning meetings of state legislators with Republican Congressmen to urge them to stand up for the rights guaranteed in the Constitution and Bill of Rights. You can download the entire letter, and here are some excerpts:

“Medical malpractice, product liability and other areas of tort reform are areas of law that have been traditionally and successfully regulated by the states. Since the country’s inception, states have addressed the myriad of substantive and regulatory issues regarding licensure, insurance, court procedures, victim compensation, civil liability, medical records and related matters. In the past two decades, all states have explored various aspects of medical malpractice and products liability and chosen various means for remedying identified problems. Over the past several years, states have continued to revise and refine their medical malpractice laws and procedures…

Federal medical malpractice legislation inappropriately seeks to preempt various areas of state law. All 50 states have statutes of limitations for medical malpractice suits. All 50 states have rules of civil procedure governing the admissibility of evidence and the use of expert witnesses. Many states have caps on noneconomic damages and limitations on attorney’s fees in medical malpractice cases…

NCSL’s opposition will extend to any bill or amendment that directly or indirectly preempts any state law governing the awarding of damages by mandatory, uniform amounts or the awarding of attorney’s fees. Our opposition also extends to any provision affecting the drafting of pleadings, the introduction of evidence and statutes of limitations. Furthermore, NCSL opposes any federal legislation that would undermine the capacity of aggrieved parties to seek full and fair redress in state courts for physical harm done to them due to the negligence of others.”

The NCSL letter is signed by one Democratic and one Republican legislator. The Republican, Jerry Madden, is a conservative, West Point grad and Vietnam vet from Texas, home of numerous Congressmen involved in the tort reform battle. The NCSL letter arrives just after the opinion by Rob Natelson, top Tea Party-side Constitutional law expert, that federal tort reform is an excessive use of the Commerce Clause and violates the Bill of Rights. Readers should tell their Congressmen that the evidence is growing of the unconstitutionality of H.R. 5 and other attempts to take over the state-based civil litigation process.

I’ve discussed the anti-Constitutional nature of federal preemption of state law several times, most recently with respect to preemption in the financial services arena. The Supreme Court has furthered the preemption cause several times, notably in the regulation of certain high-risk medical devices such as pacemakers, with the effect of ending most lawsuits for defects, regardless of the harm to the device user. The Court is hearing several cases this term which could further aid the preemption cause and negate our Constitutional rights. One of them is truly illuminating, because it shows just who cares most about our 7th Amendment rights in front of the highest court in the land.

In Brusewitz v. Wyeth, argued before the Court on October 14, the issue was whether the National Childhood Vaccine Injury Act of 1986 immunizes vaccine manufacturers against lawsuits brought in state court for design defects. One section of the law immunizes vaccine makers from lawsuits “if the injury or death resulted from side effects that were unavoidable” (quoting the law). Hannah Bruesewitz was immunized as a baby, then suffered multiple seizures and is now severely developmentally impaired. Hannah’s parents filed a petition for compensation in a special court created under the 1986 law. The court dismissed the family’s claim on the grounds that they had not proved that the vaccine caused Hannah’s injuries. The family then filed suit in a state court against the vaccine maker, Wyeth, which removed the case to federal court. The federal court dismissed the family’s claim on the grounds that it was preempted by the 1986 law. The parties disagreed about the meaning of the term ‘unavoidable” and whether Congress intended to immunize vaccine makers from virutally all lawsuits. The Center for Disease Control and the Obama Administration supported the notion that the policy behind the 1986 law supports immunity from state common law suits.

There is no question which side depended on and referred to the Constitution and Bill of Rights. The amicus brief submitted by the Obama Justice Department makes no reference to Constitutional principles and ignores not only the 7th Amendment, but the 10th Amendment also; states’ rights are plowed over. In contrast, the brief submitted by the trial lawyers’ group, the American Association for Justice, and two other groups notes the Founders’ intent. “Indeed, the right to recover damages for wrongful personal injury is among the “absolute rights of individuals” that the Founders intended to guarantee to all Americans.” That brief also noted the critical weight that numerous Supreme Courts have placed in state law, respecting the 10th Amendment, in the following passage:

“While this Court has recognized Congress’ authority to preempt state tort laws entirely, it has also recognized that Congress rarely expressly preempts state tort law… The court considers such sweeping preemption ‘unusually powerful.’… (T)he presumption against preemption applies ‘in all pre-emption cases’ and can be overcome only by a showing of ‘clear and manifest’ purpose to preempt… Under this presumption, the Court assumes that the historic police powers of the State are not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”

The trial lawyers’ brief then asserted that not all lawsuits should be preempted by the 1986 law; I refer you to other websites for the legalese. The Obama Justice Department didn’t even mention the Constitutionally-based presumption against preemption of state law – not a word.

Think about this a moment: the liberals’ favorite President defended giving federal bureaucrats and vaccine makers unchecked power over the drugs which immunize us from serious diseases, by promising to kill state suits. His Justice Department apparently doesn’t care about the rights enumerated in the Constitution. And the trial lawyers, the group that the business community and modern conservatives hate, stuck to the Constitution and the Bill of Rights, and defended the local jury system as the best means to assign responsibility for defective and dangerous drugs. Imagine that!

Prof. Ilya Somin of the George Mason University School of Law is the Co-Editor of the Supreme Court Economic Review, one of the country’s top-rated law and economics journals. His work has been published in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, Georgetown Law Journal, and numerous media outlets. He has been quoted or interviewed by the New York Times, Washington Post, BBC, and the Voice of America, among other media, and he testified at the Senate Judiciary Committee confirmation hearings for Supreme Court Justice Sonia Sotomayor. He’s expressed conservative positions on ObamaCare, eminent domain abuse, property rights, and states’ rights. Like Prof. Barnett, he’s co-authored amicus briefs on behalf of plaintiffs seeking to declare ObamaCare unconstitutional. In other words, he’s a Constitutional conservative, Tea Party-side legal expert, just like Rob Natelson and Randy Barnett.

And Prof. Somin is another of the growing group of the conservative legal experts now opposing any federally imposed tort reform law, starting with H.R. 5, the “HEALTH Act.” Writing yesterday on the legal blog, the “Volokh Conspiracy,” he commented favorably on Randy Barnett’s post of Sunday. Wrote Prof. Somin:

I’m happy to see that his critique is having an impact. Hopefully, at least some Republican conservatives will begin to see that you can’t advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other.

In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states’ ability to regulate conduct outside their borders.

The previous post to which he referred was in February also on Volokh, and I admit that I missed it at the time. In that post, he wrote the following:

In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any “activity.” Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward.

Federal reform is also largely unnecessary to solve the problem of excessive tort awards. Interstate competition can be just as effective as federal mandates, often more so. If a state allows excessive tort suits, many businesses will refuse to operate there or charge higher prices. This in turn reduces state tax revenue, forcing state legislatures to curb their courts.

So now we have three real Constitutional conservatives on our side: Rob Natelson of the Independence Institute, GOP & Tea Party legal rockstar Prof. Randy Barnett, and George Mason Law Prof. Ilya Somin are all telling the Republicans that H.R. 5 and federal tort reform bills are unconstitutional. AND I’m sure there will be more. AND we have a bipartisan letter from the leadership of the National Conference of State Legislators saying the same thing.

To date, NOT ONE real Constitutional conservative, Tea Party-side legal expert will opine in favor of the constitutionality of H.R. 5. And I’d be shocked to see one do so, since that’s an intellectually dishonest position.

The ObamaCare ruling by Judge Henry Hudson (full text here) is a victory for our Founding Fathers’ concepts of limited national government and the supremacy of individual rights. But it also reveals the inconsistency (or hypocrisy) of some Beltway legal experts who favor preemption, which is the takeover of state functions and state common law courts by federal bureaucracies in some instances, but oppose a federal takeover when it comes to health care. Indeed, some of the same groups participating in the federal preemption movement are also front and center in the fight against ObamaCare in the federal courts.

Case in point: the Cato Institute, which filed this amicus brief in the Virginia case, arguing the following:

“In other words, this case presents the Court with ‘the arduous . . . task of marking the proper line of partition between the authority of the general and that of the State governments.’.. Congress identified the Commerce Clause as the source of its authority, a position the Government now asserts in its Motion to Dismiss… Congress may not enact laws that are not ‘plainly adapted’ to further an enumerated end, or that do so at the expense of the rights reserved to the States or the people under the Tenth Amendment.”

But as I posted on December 6, Cato’s Vice President for Legal Affairs Roger Pilon argued just the opposite at the National Convention of the Federalist Society, when it came to preemption of state common law suits for certain defective medical devices. He said, “if the Commerce Clause was meant for anything, it was meant to ensure the free flow of goods and services among the states, and jury trials can really make a mess of that if pharmaceutical companies, for example, have to have 50 different labels for warnings on their medications” Sure sounded to me as if he was arguing that the Commerce Clause trumps the 10th and 7th Amendments in that instance.

After the ObamaCare ruling, Pilon had the audacity to write, “for today, at least, the Tenth Amendment and the limited government it implies are alive and well.” Well, at least for causes of his own choosing.

Pilon didn’t sign the amicus brief filed in the Virginia case, and the Cato staff who did sign it apparently weren’t at the Federalist Society when Pilon spoke. Maybe the folks at Cato need to have an in-house meeting and figure out whether the Bill of Rights limits the sweeping power of the Commerce Clause.

An epidemic of defective drywall imported from China has exposed the jurisdictional barriers that American consumers face when trying to hold a foreign manufacturer accountable for serious defects, and the number of those defects has sharply increased. For instance, according to a memo prepared for Members of Congress, “In the decade between 1998 and 2007, the import of consumer products into the United States more than doubled. This sharp rise in imported consumer products has been accompanied by an overall increase in product recalls and a disproportionate increase in the share of product recalls involving imported products – particularly products from China.” In recent years, over 80% of all recalls of consumer products announced by the Consumer Products Safety Commission have involved products manufactured overseas. Yet consumers must travel to the country of manufacture, persuade the host government to serve the suit to the foreign company (and translated into the home language), and then try to establish jurisdiction over that company in the U.S., an incredibly time-consuming and expensive process. In one particularly egregious case, a retired police officer and his wife bought their “dream home,” only to find it filled with extremely toxic Chinese drywall. Unable to afford the extensive replacement of the drywall, they lost the house and were forced to file for bankruptcy, all because they could not recover from the Chinese manufacturer. Other consumers are suing the U.S. distributors and shippers in a desperate attempt to collect whatever they can, which unfairly holds U.S. companies accountable for the defects caused overseas.

Bills in the U.S. Congress would close this gap in 7th Amendment rights and enable American consumers to sue in the U.S. and take the pressure off American companies which only ship and sell the products. The Foreign Manufacturers Legal Accountability Act of 2010 is supported by Democrats and Republicans in both houses. A House subcommittee is scheduled to debate and vote on the bill tomorrow, and the Senate version might be attached to other legislation in the near future.

Yes, all three have one thing in common. Let’s start with the latter two. At first glance, the average American might wonder – one’s a criminal case over the murder of a child, the other a civil suit over spilled coffee; in the former, the defendant, Casey Anthony, was found not guilty by the jury of the most heinous of the six charges against her, while defendant McDonald’s was found liable by the jury, which assessed damages in the millions of dollars. But the common thread is this: The “OUTRAGE!” expressed by average Americans to the decisions of the jury in each case sadly reflects, in large part, a lack of respect for and/or knowledge of the jury system, a jury system built into and protected by the Bill of Rights and beloved by our Founding Fathers. Tea Party Nation founder Judson Phillips, an attorney and expert on the Constitutionally protected jury system, said it best and simply this morning when commenting on the Casey Anthony verdict: “Trial by jury may be an imperfect system, but it is better than all of the alternatives.” Amen to that! Hopefully more Americans will come to understand and appreciate the wisdom of the jury system.

Although Mr. Phillips commented solely on the use of the jury system in criminal cases, we know that the Founding Fathers didn’t consider the right to a jury trial in civil cases to be subordinate to the right in criminal cases. My work here is all about educating readers on that critical point, especially given my opinion that the 7th Amendment right to a civil jury trial is the most unknown and endangered of any right protected by the Bill of Rights.

Which brings me back to John Adams. No Founding Father embodies the respect reserved for jury trials in civil AND criminal cases than John Adams. After all, it was John Adams who stepped up to represent the British soldiers who participated in the Boston Massacre in order to persuade a jury of Bostonians – ANGRY Bostonians who HATED the British – that the soldiers were not guilty of murder. You can read his famous closing argument on the website dedicated to the Boston Massacre. Near the end, note those oft-quoted words of Adams, “Facts are stubborn things,” and finishing with perhaps the greatest tribute a trial attorney can pay to a jury: “To your candour and justice I submit the prisoners and their cause.” And the jury acquitted the British captain and six of his soldiers, subjecting Adams to the “OUTRAGE!” of his fellow citizens for his persuasive abilities.

And we know that Adams cherished the right to a civil jury trial too. I wrote last August of his published letters defending the unalienable rights of Americans, one of which included the following:

“The people choose a grand jury, to make inquiry and presentment of crimes. Twelve of these must agree in finding the bill. And the petit jury must try the same fact over again, and find the person guilty, before he can be punished. Innocence, therefore, is so well protected in this wise constitution, that no man can be punished till twenty-four of his neighbors have said upon oath that he is guilty. So it is also in the trial of causes between party and party. No man’s property or liberty can be taken from him till twelve men in his neighborhood have said upon oath, that by laws of his own making it ought to be taken away, that is, that the facts are such as to fall within such laws. What a satisfaction is it to reflect, that he can lie under the imputation of no guilt, be subjected to no punishment, lose none of his property, or the necessaries, conveniencies, or ornaments of life, which indulgent Providence has showered around him, but by the judgment of his peers, his equals, his neighbors, men who know him and to whom he is known, who have no end to serve by punishing him, who wish to find him innocent, if charged with a crime, and are indifferent on which side the truth lies, if he disputes with his neighbor!”

John Adams walked the walk, and Americans like Judson Phillips do so today. Instead of quickly condemning juries who adjudge accused murderers and unusual civil suits, we should look to the wisdom of the Founding Fathers, take a deep breath, and thank the Founders and God Almighty for the jury system for criminal and civil cases.

Today is a special day in the history of democracy and jurisprudence, the 799th anniversary of the sealing of the Magna Carta by King John at Runnymede in England on June 15, 1215. The document required King John to proclaim certain individual liberties, and accept that his will was not arbitrary, for example by explicitly accepting that no “freeman” (in the sense of non-serf) could be punished except through the law of the land. The Wikipedia entry describes it as “the first document forced onto an English King by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their privileges.” Constitutional scholar Rob Natelson of the Independence Institute was invited to write the entry on the Magna Carta for the limited-edition Encyclopedia of the U.S. Supreme Court. He told me that he considers the Magna Carta as “Probably the greatest Anglo-American legal document of all.” It’s certainly the charter for modern democracy, the basis for eight centuries of British and American law (copied around the world), and the foundation for the U.S. Constitution and the Bill of Rights. The colonies in Virginia, Massachusetts, and Maryland especially sought to reflect various points of the Magna Carta in their early charters and laws. In 1957, the American Bar Association acknowledged the debt that American law and constitutionalism owed to the Magna Carta by erecting a monument at Runnymede.

British jurist Sir William Blackstone organized the 1215 version into numbered articles. Article 39 of the Magna Carta can be translated as, No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. It is this article that establishes and protects the right to a trial by local jury in criminal and civil cases, to protect all other individual liberties from the power of centralized government. The Founding Fathers studied the Magna Carta and knew the many instances in which the British had deprived them of their right. John Adams referred to it as “that fundamental law” when opposing the Stamp Act of 1765, and the deprivation of jury trials was among the grievances listed in the Declaration of Independence. George Mason, who refused to sign the Constitution because it didn’t explicitly protect individual rights and the prerogatives of states, drew upon it for his writings, which eventually led to the enactment of the Bill of Rights.

All those who live liberty and cherish individual rights should raise a toast and a prayer today to those good people of England who stood their ground against King John’s army and established the basis for self-government.

Imagine a bipartisan Medicare bill, one that is already co-sponsored by Members from as far from the other side on most issues as possible: Republican Representatives like Ron Paul, Tim Murphy, Don Young, and Howard Coble; and Democratic Representatives like Ron Kind, Diana DeGette, Linda Sanchez, and Tammy Baldwin. That’s H.R. 1063, the “Strengthening Medicare And Repaying Taxpayers Act of 2011” (“SMART Act”), which would help to replenish the Trust Fund, ensure that seniors and their attorneys settle injury claims quickly, and reduce paperwork burdens for businesses.

When seniors on Medicare are hurt in an accident and sue the other party, they file conditional Medicare claims to pay for treatment. Federal law requires the injured person’s attorney to repay Medicare upon a judgment or settlement, before any funds are given to the injured senior. The Center for Medicare & Medicaid Services (CMS) is supposed to give the attorney a final figure for the total amount to repay, but CMS is slow and inaccurate. As a result, it can take years to finally pay off even the smallest claim, and the senior doesn’t see a dime of the settlement. In extreme cases, CMS has even dunned seniors years after the accident, sometimes for ridiculously small amounts of money.

H.R. 1063 takes care of all that. It streamlines the process, establishes real deadlines for CMS for claims processing, and enables businesses to meet CMS reporting requirements while maintaining data security. H.R. 1063 encourages efficiency by providing settling parties reimbursement amounts prior to settling a claim. The SMART Act will require CMS to advise parties in the process of settling, before settlement, of how much is owed, so that the parties can appropriately resolve their Medicare obligations. By requiring Medicare to provide the amount due within 65 days of a request, the settling parties will know how much money has to be set aside for Medicare, and factor that amount into their final settlement. H.R. 1063 increases Medicare’s efficiency by ensuring that the Government does not spend more money pursuing a MSP Claim then it will actually recover from that claim. The SMART Act will introduce a threshold, below which the provisions of MSP Act will not apply. And H.R. 1063 gives injured seniors finality for their settlements. H.R. 1063 establishes a three-year statute of limitations, allowing injured seniors to be able to settle claims confidently, without concern that they will be responsible for additional, substantial payments to Medicare sometime in the distant future.

That’s why H.R. 1063 is supported by the U.S. Chamber and trial lawyers. Companies as large as WalMart, Best Buy, Marriott International, and Disney, as well as many of the largest insurance companies in America, support H.R. 1063.

The Oversight Subcommittee of the House Energy & Commerce Committee will hold a hearing on these Medicare issues on Wednesday at 10 am. Among the witnesses will be officers from Publix Supermarkets and Cincinnati Insurance Company, which are among the many companies supporting H.R. 1063, and a plaintiffs’ attorney who will testify to the problems seniors face.

Yesterday, 43 Catholic dioceses, organizations and universities sued the Obama administration, in 12 separate suits, to block the imposition of the Obamacare mandate to offer, in health insurance plans, drugs and devices which are forbidden by Catholic teachings, such as contraception and abortifacients. The plaintiffs include the University of Notre Dame (my law school alma mater), the Archdioceses of Washington and New York City, and a number of local affiliates of the national Catholic Charities.

And near the end of the lawsuits, the plaintiffs added the magic words to invoke the right to a civil jury trial: “Pursuant to Rule 38 of the Federal Rules of Civil Procedure, the Plaintiffs hereby demand a trial by jury of all issues so triable.” That rule begins as follows:

“(a) RIGHT PRESERVED. The right of trial by jury as declared by the Seventh Amendment to the Constitution–or as provided by a federal statute–is preserved to the parties inviolate.”

I can think of no better way for the public to learn about the God-given right that the Founding Fathers called “sacred” and “inviolable!” If these suits actually proceed, all America will witness the 7th Amendment in action, with local juries hearing the arguments brought by each side. I am ecstatic that the plaintiffs demanded a jury trial.

And would anyone dare to “tort reform” these Catholic institutions out of that right? Would anyone dictate to federal courts how they’re supposed to handle these cases, like many want to do with health care-related lawsuits in a federal medical malpractice law?

Maybe these suits will remind Americans that the Founders designed the civil justice system, and protected the right to a civil jury trial, for all causes and all cases. They didn’t treat lawsuits to protect religious liberty any differently than tort claims over personal injury, and neither should we.

But federalism is as much a question of deeds as words. It often takes the form of a concrete decision by this Court that respects the legitimacy of a State’s action in an individual case. Here, recognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California’s law, not to strike it down. We do not honor federalist principles in their breach.

So wrote that noted champion of the 7th and 10th Amendments, Supreme Court Justice Stephen Breyer, on the last page of a dissent from a majority decision today that pre-empts and overrules California consumer protection law in favor of the Federal Arbitration Act (“FAA”). Yes, I’m joking – I don’t see Justice Breyer’s name on many lips of Constitutional conservatives or Tea Party websites. And in fact, Justice Breyer has sided with pro-pre-emption Justices in other cases, notably over medical device regulation, a subject I addressed last year. But in the decision announced today in AT&T Mobility LLC v Concepcion, Justice Breyer and the three other Democrat-nominated Justices supported states’ rights and dissented from the majority’s pre-emption hammer. In so doing, they supported states which want to allow their citizens to exercise their 7th Amendment right to a civil jury trial when trapped by forced arbitration clauses in a consumer contract (in this case, a cell phone contract).

In contrast, each of the Republican-nominated Justices, led by Justice Scalia (who apparently has never met a pro-pre-emption argument he didn’t like), struck down California state law and court decisions enabling class action lawsuits against forced arbitration clauses in consumer contracts. So even when a state acts to protect its citizens from such abusive contracts, the FAA trumps the state law. When faced with language in Section 2 of the FAA that should protect states’ ability to revoke any contract (“save upon such grounds as exist at law or in equity for the revocation of any contract”), the majority flattens it:

Although ยง2’s saving clause preserves generally applicable contract defenses, nothing in it suggests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives

So Constitutional principles like states’ rights and civil jury trials are “obstacles” to be removed or ignored.

Justice Thomas was the swing vote in this case, but still voted to abandon states’ rights. He hesitated before joining the assault by writing a concurring opinion in which he asserts that he adheres to views on pre-emption expressed in a previous opinion, Wyeth v. Levine on the regulation of drugs, but then he “reluctantly” joins the Court’s opinion.

The practical impacts of the decision could be enormous. As the dissent notes, it will force an end to many class actions, as few consumers and fewer attorneys will bring an individual case for small amounts of damages. Forced arbitration clauses are now buried in consumer contracts for everything from computers, credit cards and cell phones, to employee handbooks and nursing home admissions contracts. The decision also threatens the rights of employees as well. Employers are increasingly inserting arbitration clauses, with bans on class action suits, into employment contracts. It will be far more difficult for employees to fight discrimination, because they will be unable to file class action suits.

If the 7th and 10th Amendments are to be reinvigorated, Congress will have to take specific and strong action to enable Americans to opt out of forced arbitration clauses in consumer and employment contracts.

A second open letter to John Stossel of Fox News:

So you talked with one doctor at one hospital who told you that the “indirect costs (of lawsuits) are far higher because suits force doctors and hospitals to practice defensive medicine and do unnecessary tests.” And you believed that ONE doctor in ONE hospital is the final source, the definitive word, on the costs of lawsuits to all medical patients. That’s a piece of shoddy, biased journalism, with not even 30 minutes devoted to (a) some simple internet searches to find objective studies, or (b) a few phone calls to find different viewpoints and establish some objective credibility to your reporting.

If you cared about doing objective reporting, you would have found real studies cited in one article in the New Yorker in 2009, The Cost Conundrum, by Dr. Atule Gawande. He investigated why the border town of McAllen, Texas has become the country’s most expensive place for health care, even after significant tort reform in Texas. Dr. Gawande found that such high costs are due, not surprisingly, to the profit motives of medical practitioners and inefficiency, and not liability. Some cogent points from that article:

• When asked whether lawsuits increased costs, “a general surgeon responded, ‘We all know these arguments [malpractice arguments] are bull***. There is overutilization here, pure and simple.’ Doctors, he said, were racking up charges with extra tests, services, and procedures…Before, it was about how to do a good job. Now it is about ‘How much will you benefit?’… He knew of doctors who owned strip malls, orange groves, apartment complexes–or imaging centers, surgery centers, or another part of the hospital they directed patients to. They had ‘entrepreneurial spirit,’ he said. They were innovative and aggressive in finding ways to increase revenues from patient care…. he had often seen financial considerations drive the decisions doctors made for patients–the tests they ordered, the doctors and hospitals they recommended–and it bothered him.”

• “In a few cases, the hospital executive told me, he’d seen the behavior cross over into what seemed like outright fraud. ‘I’ve had doctors here come up to me and say, ‘You want me to admit patients to your hospital, you’re going to have to pay me…The amounts–all of them were over a hundred thousand dollars per year.'”

• “General surgeons are often asked to see patients with pain from gallstones… If there aren’t any complications – and there usually aren’t – the pain goes away on its own or with pain medication…But increasingly, I was told, McAllen surgeons simply operate. The patient wasn’t going to moderate her diet, they tell themselves. The pain was just going to come back. And by operating they happen to make an extra seven hundred dollars.”

John, that article cites case after case (none of which you cared to find and read) with the same conclusion: Eliminating unnecessary but profitable procedures and changing incentive systems will reduce medical costs and enhance the quality of medical care. It worked at the Mayo Clinic and in Grand Junction, Colorado, and had nothing to do with giving doctors immunity from their accountability to their patients.

John, try serious reporting based on real research, not anecdotes from one doctor.