Brenton Stransky has a great piece in American Thinker about the future requirement, buried in the so-called “stimulus bill,” for all Americans to report their weight and body fat so Big Brother, I mean Uncle Sam, can tell us what to eat and what to avoid. The bill created a new “National Coordinator for Health Information Technology” (Orwell would love that title), and last week, HHS released new regulations about using that office to “monitor every American’s body mass index, or BMI — a measure to estimate healthy body weight” (quoting Stransky). Thus we see the creeping increase of excessive federal power that oozes from a huge, mostly unread law with a wonderful name (the “American Recovery and Reinvestment Act,” another Orwellian masterpiece), and threatens to seep into every corner of our lives.

The Founding Fathers wouldn’t be surprised at any of this; they had been there, seen that, done it, and they wanted nothing of it. That’s why so many of our Founding Fathers warned that a new Constitution couldn’t be ratified without a Bill of Rights, especially the right to a civil trial by jury. When proponents of the Constitution argued that “economic necessity” required swift ratification without a Bill of Rights, fiery Patrick Henry, he of “Give me liberty or death!” fame, responded:

You are not to inquire how your trade might be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of government. Is it necessary for your liberty, that you should abandon those great rights by the adoption of this system? Is the relinquishment of trial by jury, and the liberty of the press, necessary for your liberty?… Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel…” (J. Kendall Few, In Defense of Trial by Jury, quoting William Wirt, The Life of Patrick Henry, pp. 289-90, by DeSilver, Thomas & Co., 1836)

And make no mistake, Patrick Henry and the Founding Fathers were clear that “trial by jury” was for civil claims as well as criminal cases. George Mason of Virginia, author of the Virginia Declaration of Rights (which included a mandate for civil jury trials), was the first delegate to the Constitutional Convention to recommend that the Constitution be prefaced with a Bill of Rights. He refused to vote to ratify the Constitution because it included no guarantee of individual rights, which for him specifically included, “trial by jury in civil causes.” When James Madison presented his draft of the Bill of Rights to the Convention on June 8, 1789, he characterized the right to a civil jury trial as “one of the best securities of the rights of the people.”

The Founders knew that each and every right enumerated in the first ten amendments to the Constitution is critical to maintaining individual freedom against an encroaching and suffocating federal government. Every American who cherishes our freedom and the Founders’ legacy should recognize the 7th Amendment as a bulwark against Big Brother. Every time we compromise that right through federal preemption of state law with immunity from civil suits, or court decisions which arbitrarily limit our ability to file a civil suit in federal court, we invite Big Brother to dictate our weight, our Internet habits, and the full range of personal actions.

On Friday, March 21st, Regent University School of Law in Virginia Beach, VA, will hold what might be the first conference in years (if ever) to discuss the potential for the incorporation of the Seventh Amendment right to civil jury trials to the states as a fundamental right. The conference is under the direction of Regent Law Prof. David Wagner, who has had a long successful career in teaching and in Washington policy circles. The other panelists so far are Prof. Paul Finkelman of Albany University Law School, a nationally recognized expert on constitutional law and constitutional history, and Sean P. Tracey of the Tracey Law Firm in Houston. I’ve already highlighted some of Prof. Wagner’s pro-Seventh work; he previously wrote the first pro-civil juries piece in years in a mainstream conservative magazine (for The Weekly Standard), and wrote blog posts last year opposing federal medical malpractice limits and the House-passed patent reform bill with “loser pays.”

Gun-rights advocates fought for forty years for the Supreme Court to recognize the Second Amendment as a fundamental right, and that is where Seventh Amendment advocates must head. That is the only way to guarantee the God-given right that the Founder cherished so much in the Constitution and Bill of Rights, even over the right to vote. Whether it takes four, fourteen or forty years, we have to start someplace. That’s why we need to hold events like the Unity Summit, which starts today, and the Regent University conference.

I hope readers in the Norfolk-Virginia Beach area will be able to attend the conference, which begins at 6 pm in Robertson Hall at Regent Law School.

The drive to enact a bill to use Iran’s funds frozen in a U.S. account to pay the families of U.S. victims of Iranian terrorism picked up a key endorsement yesterday. Judson Phillips, founder of Tea Party Nation, endorsed HR 4070, sponsored by Rep. Bob Turner (R-NY) and co-sponsored by a bipartisan group of Congressmen. In his endorsement, posted on the TPN website and his personal website, Judson wrote,

Taking this money away from Iran and making certain it cannot be used to advance terrorism is a great idea. Giving that money to the Americans who have been the victim’s of Iran’s terrorism is not just justice it is payback.

If Congress does not act, the order freezing the Iranian funds could be lifted. Can you imagine the celebration in Tehran if they get their money back? Just on general principles does anyone doubt Iran would not use some of this money for terrorism?

Judson Phillips recognizes that taking Iran’s money to pay the families of our brave servicemen killed by Iran in the 1983 Beirut Marines barracks and 1996 Khobar Towers bombings is the right thing to do and smart policy. Those families exercised their God-given right to take their claims against Iran to federal court and obtained judgments against iran which can and should be satisfied by releasing Iran’s funds in the account to them. Hopefully Judson’s endorsement will lead to additional support for the bill in the U.S. House and eventual enactment of the provisions by the entire Congress.

Because the federal government shouldn’t be involved. It’s a state matter; tort law is a state matter.

Rep. Ron Paul when asked by Fox News’ Shannon Bream why he opposes a federal medical malpractice law, during the GOP Presidential debate in South Carolina, May 5, 2011 (starting just after the 3:00 mark on the embedded video).

Rep. Paul has written before about his principled opposition to federal tort reform bills, and he has voted that way on the floor of the U.S. House. Rep. Paul is one of the few Republicans who have been in office long enough to have a chance to vote on H.R. 5, the “HEALTH Act,” in two previous Republican Congresses, and he has never voted for it.

Rep. Paul, who has delivered approximately 4,000 babies as a licensed ob-gyn, repeated his opposition to federal tort reform bills and the general federal preemption doctrine when he was interviewed on the nationally syndicated ‘What’s Up’ radio program by host Terry Lowry last week. You can download his interview here (mp3 file). He discusses the importance of the Bill of Rights, including the 7th Amendment, his opposition to federal preemption of state laws twice during the interview, and to federal tort reform bills starting at the 5:15 mark.

Pollsters such as Larry Sabato and Stuart Rothenberg, guys who have great track records, are predicting a GOP House majority next year. But what kind of majority will it be? I’ve already posted the numerous reasons why the GOP and Tea Party activists should avoid a “tort reform” agenda and instead protect the right enumerated in the 7th Amendment and state constitutions of a jury trial for civil suits.

A GOP lobbyist in Washington, a 35-year-long veteran of politics, has some words of warning for new GOP Congressmen, especially those representing themselves as Tea Partiers. He campaigned for Ronald Reagan, held senior positions in the Reagan Administration and on Capitol Hill, and was a “Bush 43” nominee iced by Senate Democrats. He’s walked in the corridors of power in Washington, financially contributed to Congressmen at closed-door fundraisers and successfully lobbied for legislation in Republican and Democratic-led Congresses. That lobbyist-veteran is… ME (read my bio).

My warning comes in the form of a few questions for the newcomers:

1. Will you include key figures of your campaign staff in your Washington office to remind you and any visitors of the real reasons why you won your constituents’ confidence and votes? Or will you staff your office with “Washington veterans” recommended by the GOP Establishment and retired Republican leaders, who advise you to hire people who “know how the town works” and can “get things done” but have no loyalty to your constituents, your principles or Constitutional conservatism? I recall one hotshot freshman Republican Senator doing that, and he sent mixed signals and failed, leaving Washington with no record of success.

2. To all you Tea Partiers: Are you more afraid of losing your next race or of losing your integrity? What will you do when you get into a discussion at a fundraiser with a lobbyist from an industry or company that heavily supported you? What will you do the first time a corporate lobbyist or business association leader asks you to back up their support for your election with a vote that compromises your principles? I saw one new Republican Congressman, a “tough guy” who won a Democratic-leaning district while campaigning as a conservative, knuckle under in just one meeting to a group of businessmen from his home district, because he was just so afraid of losing their support.

3. Which media outlets will you care about first thing in the morning, the Washington Post, New York Times and major TV networks, or your local media? Will you fret or whine every time the WaPo and NYT call you an “unsophisticated extremist” or will you wear it as a badge of honor?

4. Will you actively seek to protect each and every one of the God-given, unalienable rights enumerated in the Bill of Rights? Are you willing to surrender your participation in one of the top committees in the House or Senate to defend the Constitution and Bill of Rights? Are you willing to actually vote “NO” on a bill pushed by your committee chairman? Will you heed a call to “get on board the team bus,” or refuse and risk retaliation, such as losing funding from the chairman’s leadership PAC?

5. Will you recognize, understand, and protect the 795-year-long history of the right to a jury trial for civil suits, as Thomas Jefferson, James Madison, and John Adams supported, or will it blindly accept the business community’s view, which cuts a giant hole out of every edition of the Bill of Rights at the 7th Amendment?

6. Will you realize that federal preemption of state statutory and common law is antithetical to the 7th and 10th Amendments to the Constitution? Will you say that to any of the scores of business-side lobbyists who will seek preemption? Or will you gouge the 7th Amendment by promoting total immunity for the business community from oversight by state Attorney Generals and injured consumers?

7. Will you recognize that the civil justice process can actually be exploited for conservative policy goals, such as protecting the unborn, womens’ health and religious liberty? Or will you join the 25-year war againist the right to a jury trial for civil suits by trashing trial lawyers and civil suits, blindly read talking points prepared by the Chamber of Commerce, and actually call for bigger federal bureaucracies?

As readers of our Twitter feed know, the debate during today’s consideration of H.R. 5, the “HEALTH Act,” by the House Judiciary Committee turned towards protecting states’ rights by limiting the scope of the bill. Rep. Hank Johnson, Democrat from Georgia, introduced an amendment to limit the scope of the bill to just health care suits filed in federal courts, thus protecting the state courts from being overridden through pre-emption. Two Texas Republicans, Ted Poe and Louis Gohmert, expressed support for the general idea of protecting states’ rights. At that point, Rep. Johnson offered to withdraw his amendment if the committee would consider a states’ rights amendment later in the legislative process, to which committee chairman Rep. Lamar Smith agreed. Chairman Smith later adjourned the committee with a commitment to revisit the issue before resuming committee consideration next week. (UPDATE: Here’s a story from “The Hill” on the states’ rights debate.)

EDIT, 2-10-11: Rep. Johnson also introduced the idea that H.R. 5 would violate the right to a civil jury trial, as protected by the 7th Amendment. Rep. Bob Goodlatte (R-VA) disagreed strenuously, asserting that the Supreme Court has already ratified the theory behind H.R. 5. Although he wasn’t explicit, he must have been referring to the use of the Commerce Clause to pre-empt state law and court suits, and thus enable Congress to enact federal limits on all health care lawsuits, whether filed in state or federal courts. I hope that next week, some Judiciary Committee member reads the Founding Fathers’ unambiguous quotes on the unalienable, God-given right to a civil jury trial and begins to question the nature and reach of the Commerce Clause. I have already addressed the potentially unlimited scope of the Commerce Clause and will do so again soon.

Readers and fans need to contact House Judiciary Committee Members right away and their own Congressmen to urge them to protect states’ rights and state courts, and the right to a civil jury trial, by amending H.R. 5. You can access the list of Judiciary Committee Republicans on the committee website and then navigate to individual websites for contact information. You can also call the U.S. House switchboard at 202-224-3121, ask for a particular Congressman’s personal office, and leave a message. Congressmen pay the most attention to comments from those living in their districts. All 7th and 10th Amendment advocates need to hurry, before opponents of any states’ rights’ amendments mobilize to persuade committee Members to abandon Constitutional principles.

The history of the soft alliance between trial lawyers and pro-lifers has never been given the attention it deserves by pro-life Republicans. The Founding Fathers warned repeatedly against entrusting bureaucrats with decisions that belong in the hands of a local jury. Trial lawyers serve the pro-life cause by challenging FDA decisions to approve dangerous medical devices and drugs taken as birth control by women. History has shown the FDA is too often influenced by political forces and by the industry it seeks to regulate, and the FDA cannot always be trusted to keep unsafe drugs and medical devices off the market. When the FDA approves unsafe products, or allows dangerous products to stay on the market, lawsuits by injured patients are often the last line of defense to provide protection to innocent victims. Civil suits forced many of these dangerous drugs and devices off the market, while the FDA did nothing. Here are some examples.

The Dalkon Shield IUD was implanted in an estimated 2.5 million women from January 1971 through June 1974 before it was taken off the market, thanks to civil litigation brought by injured women. At the time, medical devices were not required to receive pre-market approval from the Food and Drug Administration. Approximately 200,000 women claimed they were injured by the device and filed lawsuits against the company. The Dalkon Shield IUD often became imbedded in the uterus, and the multifilament tail string on the device became a vehicle for bacteria. As a result, women wearing the shield were seven times more likely to develop pelvic infections than women using no contraceptives. There were over 200 documented cases of a rare, potentially lethal type of infected miscarriage called spontaneous septic abortion. Twenty women died of complications associated with the Dalkon Shield. The dangers of the Dalkon Shield were not revealed until the first device lawsuit went to trial in 1974, where the public found out that the IUD’s manufacturer knew about the life-threatening risks of the device but withheld this information.

Meanwhile, thanks to aggressive marketing efforts, about 10 million women in the U.S. used the Copper-7 IUD between 1974 and 1986. By 1986, hundreds of lawsuits were filed claiming that the Copper-7 caused pelvic inflammatory diseases, ectopic pregnancies, perforated uteruses and sterility. As a result, the Copper-7 was taken off the market, solely because of the lawsuits brought against the manufacturers. But the FDA never withdrew its approval of the Copper-7.

RU-486 was never tested in uncontrolled trials or tested for use by women under 18, despite being approved for any age. By approving RU-486, the FDA also mandated a previously unapproved use of misprostol over the objections of its manufacturer Searle, who originally created misprostol to reduce the risk of ulcers. According to 9,300 pages of documents uncovered by Judicial Watch, standard procedural and scientific requirements were circumvented during the expedited FDA approval of RU-486 in 2000. A host of pro-life organizations, including the American Association of Pro-Life Obstetric Gynecologists and the Christian Medical Association, have opposed RU-486 from its testing period to today.

The Ortho Evra transdermal birth control patch was approved by the FDA in 2002 as a supposedly safe alternative to the birth control pill – this despite the FDA’s own pre-approval findings that the patch led to three times as many non-fatal blood clots. This FDA finding was kept quiet as women switched over to the patch – by 2004, 800,000 women were on the patch. A 2005 FOIA request finally revealed that the FDA had received 16,000 different adverse reaction reports associated with the patch, including 17 deaths that appeared to be clot-related. The women who died included Kathleen Thoren, a 25-year-old mother of three; Sasha Webber, a 25-year-old mother of two; and Zakiya Kennedy, an 18-year-old Manhattan fashion student. Ortho Evra’s manufacturer waited until 2006 to warn women that the patch would expose them to the possibility of blood clots. Worse still, FDA kept that information quiet in 2002 when it approved the patch. Lawsuits continue against the company.

Norplant was introduced in 1991, and women began noticing that Norplant’s label inadequately warned about severe side effects like excessive menstrual bleeding, headaches, nausea, dizziness, and depression. In a complaint filed against Norplant’s manufacturer Wyeth-Ayerst, women who used the system suffered significant weight gain, felt numbness and pain in their arms (where the silicone rods were implanted), and experienced excessive bleeding for two
weeks. Many of these women also experienced great difficulty exiting from the Norplant protocol – some women became scarred after having to undergo surgery under a general anesthetic to remove the implants. In 1999, Wyeth-Ayerst agreed to pay out at least $50 million to settle the claims of 36,000 women. The American Life League maintains a Norplant page on its website, explaining its qualities and the testing deficiencies.

Last year, the FDA approved the pill “Ella,” a product of the French maker HRA Pharma, which reduces the chance of pregnancy up to five days after sex. The pro-life Family Research Council claims that Ella blocks progesterone receptor proteins, and thereby starves a developing baby of this needed protein, much like RU-486. FRC cites numerous studies in Europe that show “that Ella causes abortions in animals, including rats, rabbits, guinea pigs and macaques (similar to monkeys).”

And FRC says that “there is compelling reason to believe that it (Ella) will likely have similar side effects” as RU-486, such as “excessive bleeding and increase(d) vulnerability to infection.” In other words, trial lawyers exercising the 7th Amendment right to a jury trial for civil suits may have to ride to the rescue of the women who will be harmed by Ella, just as they have with respect to other devices and drugs dangerous to women.

My representative in the Virginia House of Delegates, Rep. Dave Albo, sent his constitutents a letter recently with some interesting news. He had been a guardian ad litem for abused and neglected kids in the 1980s and had witnessed the horrific impact of child molestation. So he was surprised to find out that the statute of limitations in Virginia for civil suits against a molester was only 2 years. To provide a much longer period within which the victim may exercise 7th Amendment rights and recover damages from the molester to pay for treatment, Rep. Albo sponsored HB 1476 to increase the statute of limitations to 25 years (see the last paragraph of the linked document). The House of Delegates passed the bill with a statute of limitations of just 8 years from the abuse, or in the case of a victim suffering from repressed memory syndrome, from the date the abuse is remembered. The state Senate increased that period to 20 years, and the House of Delegates accepted the Senate amendment as the Virginia legislative session drew to a close. I would note that there is no statute of limitations for a criminal charge. The bill awaits the Governor’s signature, and I assume he will sign the bill.

Congratulations to Rep. Albo for his vigilance on behalf of the victims of child sexual abuse. I hope 7th Amendment champions and state legislatures across the country will review their state laws and appropriately increase the statutes of limitations for civil suits against child sexual abusers. This should be a nationwide effort.

I have faith in the people – I have faith in the jury system. It’s one of the most important elements of our freedom, and it was so recognized in the Constitution, was felt to be so important, it was specifically put into the Constitution in the 7th Amendment. And I’ll tell you, it’s a very dangerous thing to take away rights like that from the people… In fact, I can tell you, you have better regulation by juries than you have by federal government regulators – it’s more effective.

Rep. John Duncan, Jr., Republican from Tennessee, said that on Monday when he was interviewed by Christian broadcaster Terry Lowry on the What’s Up radio show, which is broadcast on 12 stations in 10 states, thanks in part to co-sponsorship by the American Association of Justice. I’ve met with Rep. Duncan several times this year, and his allegiance to Constitutional principles of limited government is clear and consistent. He enjoys discussing his career in Tennessee as a trial lawyer, and how he helped plaintiffs to exercise their 7th Amendment right to a civil jury trial. On “What’s Up,” he discussed this issue and the deterioration of states’ rights over the past several decades and called for their rejuvenation.

Terry Lowry asked Rep. Duncan for his opinion of H.R. 5, the bill to severely limit civil suits against all health care-related businesses, including nursing homes and insurance companies. Rep. Duncan said it’s a bad idea, and he discussed his faith in the jury system, in the people who sit on local juries, and explicitly in the 7th Amendment (“one of the most important elements of our freedom”). He decried the steady reduction in the steady number of jury trials in recent years, a topic on which I posted last year. And he reiterated what the Founding Fathers always knew, that local juries are more effective in controlling egregious behavior than any federal regulator.

UPDATE: You can download and listen to the entire interview with Rep. Duncan from the What’s Up website (MP3 file).

Rep. Duncan is a true Constitutional conservative and patriot, and his constituents are blessed to have such a man represent them in Congress.

ANSWER: Both are subjects of important federal court rulings that federal law preempts state law. Proponents of the Arizona immigration law should recognize that they’re just the latest victims of an anti-7th Amendment federal preemption movement that has already spread into many sectors of American life, thanks to Congress, the federal courts, and federal bureaucrats.

As noted by legal scholars (here and here), the decision last week by District Court Judge Bolton to block key sections of the Arizona immigration law was based in standard federal preemption theory, not the unconstitutionality of the law or each section in it. After ruling that a severability clause in the Arizona law was sufficient to block federal preemption of the law in its entirety, Judge Bolton proceeded to analyze each section of the Arizona law for what she termed “the constitutionality of the individual provisions,” but in reality she judged each provision against current federal law, and determined the likelihood that the United States would ultimately succeed in blocking each such section (see page 13 of the attached ruling). For instance, when blocking the section of the Arizona law which forbids illegal aliens from working, Judge Bolton wrote,

The provision limiting the use of attestation forms and the civil penalties outlined for document fraud in Title 8 and the robust sanctions for employers who hire, continue to employ, or refer unauthorized workers convince the Court that Congress has comprehensively regulated in the field of employment of unauthorized aliens. These ‘extant actions,’ in combination with an absence of regulation for the particular violation of working without authorization, lead to the conclusion that Congress intended not to penalize this action, other than the specific sanctions outlined above. See P.R. Dep’t of Consumer Affairs, 485 U.S. at 503-04. Thus, the Court finds that Plaintiff is likely to succeed on its claim that Arizona’s new crime for working without authorization, set forth in Section 5 C of S.B. 1070, conflicts with a comprehensive federal scheme and is preempted. (See page 27 of the ruling.)

Conservative commentators were upset/outraged at the ruling, see Michelle Malkin’s website and Rush Limbaugh’s and Glenn Beck’s.

Although I agree with most of their political views, none of them know widespread the “federal preemption disease” is in Washington. One of Rush Limbaugh’s first statements was, “This, to me, is big because normally federal courts do not side with the federal government against states like this. I could be wrong about this, but I don’t think that’s standard.” Advocates of 7th Amendment rights know that federal preemption of state law by federal courts, bureaucrats, and Congress certainly has been the “standard” in the past decade. Just as an example, thousands of victims of defective implantable medical devices (classified as “Class III” under FDA regulations) know all about federal preemption the hard way. They thought they had a case against the manufacturer of their device (e.g., a pacemaker or artifical limb) in state courts under the Medical Device Amendments of 1976 to the Food, Drug and Cosmetic Act. Users of a defective pacemaker sold by Medtronic suffered internal electrocution inside their body, as the wire from the battery loosened from the pacemaker and sent jolt after jolt through their chest. As I wrote on June 24, the Supreme Court ended their hopes of receovery in the Riegel v. Medtronic decision, when the Court changed 30 years of legal practice by ruling that the 1976 MDA preempted state common law suits. Thousands of potential cases have either been summarily dismissed or not filed. A bill to reverse the Riegel decision is hung up in Congress, the victim of pressure brought by the medical device companies and the business community.

Conservatives just haven’t been watching, as the federal preemption octopus has spread its tentacles from Washington into all parts of our lives. I wrote on June 24 that the 7th Amendment is being repeatedly challenged by federal preemption through aggressive regulatory decisions by unelected bureaucrats in Washington. “Federal preemption abrogates 7th Amendment rights by immunizing the affected industry from civil suits, with no accountability for negligence; it leaves injured consumers with no means of seeking recovery for injuries caused by the product or service. Federal bureaucrats love expanding their power and ensuring their permanency by preempting state law, and in recent years they’ve certainly exercised that power. Bureaucrats in the Food & Drug Administration (FDA), National Highway Traffic Safety Administration (NHTSA), Consumer Product Safety Commission (CPSC), Department of Homeland Security, Pipeline and Hazardous Materials Safety Administration, Transportation Safety Administration and Federal Railroad Administration have all joined in writing federal preemption into regulations.”

As I wrote on July 20, the federal preemption wave turns over the authority over our lives to the elites and away from the country. If conservatives are going to complain about the court ruling in the Arizona case, they’re going to have start being more attentive to the ever-increasing domination by Washington of our lives, as state statutory laws and our 7th Amendment right to civil justice are preempted by Congress, the bureaucracy, or the judiciary.

I’m happy to see fellow Catholics wade into the public policy arena and inject our Church’s teachings on moral responsibility and social justice into the debate on legislation. I haven’t done so explicitly here, but my faith underlies much of what I write on the need to protect the right to a civil jury trial for religious liberty and pro-life lawsuits.

So when Rep. Paul Ryan said in an interview that the Catholic principle of subsidiarity underlies some of his proposals in the FY 2013 federal budget, I respected his attempt as a sincerely personal application of our common faith. Obviously, other Catholics, including the U.S. Conference of Catholic Bishops, disagree with him on the application of that principle, but I’m glad we’re having the discussion on that plane.

But if Rep. Ryan seriously believes, as he said in the interview, that subsidiarity “is really federalism, meaning government closest to the people governs best,” then he must apply it consistently. And that requires that he remove any current reference to federal limits on medical malpractice lawsuits, including caps on noneconomic damages, from his budget proposals. Rep. Ryan’s favorite legal experts on federalism have been writing for over a year that federal limits on civil suits are as unconstitutional an infringement on states’ and individual rights as the individual mandate in Obamacare. If, as one conservative commentator says, “A humane government is one that leaves decisions closest to the people,” then surely the regulation of state courtrooms is not a matter for Congress to decide. The budget proposed by the conservative House Republican Study Committee doesn’t include any federal limits on civil jury trials – I guess that makes it “more Catholic.”

And please don’t interpret this piece as an implicit acceptance of state-imposed limits on the right to a civil jury trial. I don’t believe that the Founding Fathers meant for a right that they called “sacred” and “inviolable” to be limited to civil suits filed in federal courts, while enabling state legislatures to close courtroom doors anytime they see fit. But that’s a subject for a different post.

But if Rep. Ryan wants to reflect Catholic social teachings in his proposed budget, then he needs to do so without infringing on that “sacred” and “inviolable” right at the federal level.

Before he was a President and Founding Father, John Adams was a famous trial lawyer. In the case that made him famous, he represented the British soldiers who participated in the Boston Massacre, in which he actually persuaded a Boston jury to dismiss the murder claims. His closing statement began with the words, “Facts are hard things,” a now-famous proverb we hear thrown about often, on issues from the deficit to gun control.

Some of the “hard facts” about medical malpractice are addressed in a new study published in the January 2013 issue of “CHEST,” the official journal of the American College of Chest Physicians.” Titled, “Five Myths of Medical Malpractice,” the study lists five famous myths, then debunks them with real facts. The study is summarized on the CHEST website, but is copyrighted and thus available in full only to subscribers. Here is the authors’ summary open to all:

“We identify five myths of medical malpractice that have wide currency in medical circles. The myths are as follows: (1) Malpractice crises are caused by spikes in medical malpractice litigation (ie, sudden rises in payouts and claim frequency), (2) the tort system delivers “jackpot justice,” (3) physicians are one malpractice verdict away from bankruptcy, (4) physicians move to states that adopt damages caps, and (5) tort reform will lower health-care spending dramatically. We test each assertion against the available empirical evidence on the subject and conclude by identifying various nonmythical problems with the medical malpractice system.”

The authors are David A. Hyman, MD, JD, and Charles Silver, JD, two expert researchers who have already punched holes in the major claims made about the benefits to Texans from state-imposed caps on damages in medical malpractice lawsuits. I’ve written extensively about their study of Texas medmal caps, which they cite in the new study.

For policy purposes, I’ll note here simply that the last paragraph of the new study reports that mandated caps on medmal damages “do little to improve the malpractice system… they do not make health-care safer, reduce health-care spending, compensate those who are negligently injured, or make the liability system work better.” Hyman and Silver say that the best reforms in medicine are “patient safety initiatives that reduce the frequency and severity of medical mistakes.”

That’s the type of fact-based conclusion that should be easy to swallow. If you want to limit medmal lawsuits, end the medmal!

So the new GOP agenda for the 2010 elections is about to be released, and press reports indicate that it might include some call for “tort reform” or “medmal reform.” Whenever I read those phrases, I substitute the words “Fairness Doctrine” or “gun purchase restrictions” and imagine the outrage that would ensue among Constitutional conservatives and average Americans. The prevalence of terms like “tort reform,” “medmal reform,” or “stop junk lawsuits” is proof that the users of such terms, and the people who follow them, haven’t taken a long hard look at the nature of Constitutional rights and the mechanisms needed to exercise them.

Here’s how I think of it: Each Constitutional right has an “agent,” an entity or entities that bring that right alive, make it a reality, and implement it among the people. The agents for the First Amendment freedom of the press are the media, in all its forms. The agents for the First Amendment freedom of religion are churches and associated religious entities. The agents for the Second Amendment right to bear arms are the sellers of firearms.

Whether you like it or not, the agents for the 7th Amendment right to jury trials for civil suits are the attorneys licensed in each state who file cases for plaintiffs – they’re the trial lawyers (unless, of course, the plaintiff acts as his/her own attorney). That’s the way it is, has been, and will be. Any legislative agenda that includes a catchy phrase like “tort reform” is inherently targeting our 7th Amendment rights for restriction or, in some specific cases such as federal preemption of state law, outright extinction.

No Constitutionally conservative election agenda should paint a bullseye on any of our Constitutional rights for any reason. We wouldn’t tolerate an agenda that targets MSNBC or the New York Times just because they’re biased outlets, and so on for all the other agents of the First and Second Amendments. Why target the agents of the 7th Amendment when the Founders believed so strongly in civil jury trials? I hope and plead that Tea Partiers and Constitutional conservatives will resist joining any call for “tort reform” and see it for what it is, an attempt to cut a huge hole out of the Bill of Rights.

Tonight at 9 pm ET, HBO will broadcast a documentary titled, “Mann v. Ford,” about a class action lawsuit brought by the Ramapough Mountain Indians, who have lived for hundreds of years in northern New Jersey, 40 miles from midtown Manhattan. In the 1960s, the Ford Motor Company bought land from the Indians and began dumping toxic waste in woods and abandoned mines near their homes.

In the 1980s, the Ramapoughʼs land was added to the EPAʼs list of federally monitored Superfund sites, and then removed from the list after Ford and the EPA supposedly cleaned it up. But 80 percent of the toxic waste had been left behind, and the Indians suffered from the deadly impacts of the sludge, including cancers, skin rashes and other symptoms of toxic poisoning. The Indians eventually hired attorney Vicki Gilliam, who with another attorney filed the class action lawsuit, seeking millions of dollars from Ford as compensation. Ford denied all responsibility for the illnesses devastating the community and claimed its cleanup complied with all EPA rules.

You can read all of the details of the years of illnesses on the special website created by the Bergen Record newspaper in New Jersey, which first reported the story.

I arranged for Vicki Gilliam to be interviewed by Terry Lowry, host of the syndicated What’s Up radio program, which is broadcast on 12 Christian radio stations in 10 states and co-sponsored by the American Association for Justice (my client). You can download today’s podcast of the interview in two parts – Part 1 here and Part 2 here. In the interview, Vicki discussed how Ford Motor Company knew of the deadly nature of the sludge dumped onto the Indians’ land; the horrible medical impacts of the sludge; how the EPA didn’t force Ford to dispose of all of the waste.

Eventually the Indians settled the case with Ford, and the terms of the settlement are not public. The lawsuit resulted in the EPA’s returning the site to the Superfund list, the first time a cleared site was returned to the list – a warning to the 70+ million Americans living near a Superfund-listed site.

One of the lessons emerging from this story is that Americans need to have the option of filing a class action or “mass tort” lawsuit when numerous people are harmed by the same dangerous and grossly negligent action. Too often, tortious action affecting thousands of people goes unchallenged by federal regulators, and the victims need to have the option of filing their lawsuits together. The “tort reform” movement is seeking to sharply limit the right of Americans to combine their claims in a class action; the Mann v. Ford case shows us why we can’t let that happen.

It’s always great to find another Reagan Conservative who cherishes the Founders’ ideal of civil jury trials, as protected by the 7th Amendment to the Constitution, and to see that support in a mainstream conservative publication. Like me, Prof. David Wagner of Regent University Law School was a political appointee in the Reagan Administration who later served as a counsel for House Republicans on a congressional committee. And Prof. Wagner, who teaches constitutional law and other subjects, knows the rich history of the 7th Amendment. He wrote about the importance of civil juries in the January 20 issue of The Weekly Standardin an article titled, “Who Loves a Jury? The Framers of the Constitution, that’s who.” It might be the first pro-civil jury piece in a mainstream conservative publication in many years. An excerpt:

“It seems the civil jury can’t get no respect.

Although it’s conservatives who most often make the case against civil justice excesses, the downgrading of juries in popular respect marks a huge, though almost unnoticed, divide between this generation and the Framers.

Ask most people today what is the most direct way they participate in government. They will probably say voting. And yes, the right to vote is in the constitutional text, although something of a latecomer, in various forms in the 14th, 15th, 19th, 23rd, and 26th Amendments.

But 81 years before the right to vote made its first appearance in the Constitution, the jury right in criminal cases was already included in the unamended Constitution (Article III, Section 2, paragraph 3), as it came from the Philadelphia Convention. But the convention declined to extend this right to civil cases. This alone lost the Constitution the votes of George Mason and Elbridge Gerry, and got the ball rolling on the movement for a Bill of Rights, either as a condition of ratification (constitutional opponents lost on that), or as a top item of business when the new government convened (they won on that; politicians kept promises in those days). And so a guarantee of jury trial in civil cases became the 7th Amendment.

In fact, 3 of the first 10 amendments mention juries: We have grand juries in the 5th, criminal petit juries in the 6th, and civil juries in the 7th. For comparison, the right to vote is nowhere mentioned in the Bill of Rights. A latecomer, as I said…

At first the Bill of Rights was binding only on the federal government, and to this day the 7th Amendment remains one of the provisions in the Bill of Rights that the Supreme Court has not fully applied to the states. The reason? No apparent need: The states themselves guarantee the civil jury right, and have done so since the Founding. Northwestern’s Steven Calabresi and his fellow legal scholars have recently found that 12 of the original 13 states, representing about three-fourths of the population of the new United States of America, had civil jury provisions in their state constitutions at the time of the Founding, second only to provisions for the free exercise of religion.”

Prof. Wagner has some concerns about flaws that he sees in the civil litigation process, but he warns against limiting the civil jury trial. “The civil litigation system is flawed along several fissures; juries are not the only ones, or the worst. Above all, they have countervailing, decisive civic, and constitutional benefits. At least our Framers, after debating the issue, came to that conclusion, and we are unwise to ignore their counsel.” And he’s criticized bills proposed in Congress to nationally limit medical malpractice damages.

Here’s hoping more of my fellow conservatives realize the wisdom of the Founders and protect civil jury trials.

“If this law is upheld as constitutional by the Supreme Court, then there’s virtually nothing that’s beyond Congress’s reach, and I think that would be a horrible, horrible precedent for the country.”

So said Sen. Mike Lee (R-UT), member of the Senate Judiciary Committee, discussing the potential impact of a Supreme Court ruling affirming the constitutionality of the Obamacare individual mandate. Sen. Lee confirms what I’ve been trying to tell pro-Obamacare civil justice liberals for almost two years – that if Obamacare wins, federal medmal limits will be considered as more permissible under the Commerce Clause and therefore far more likely to be enacted.

Go look at my Archives, back to my post in January 2011 about Justice Thomas’ warning on the unlimited danger of an unlimited Commerce Clause. Look at what anti-Obamacare legal experts such as Randy Barnett, Virginia Attorney General Ken Cuccinelli and John Baker wrote about H.R. 5, the bill to impose federal limits on awards in medical malpractice lawsuits. Read what I wrote in my post titled, Obamacare and Federal Tort Reform, Perfect Together. The theme is the same:

Obamacare and federal medmal limits, and indeed most federal tort reform bills, are based on the same abusive interpretation of the Commerce Clause, to the detriment of states’ and individual rights. The Obama Justice Department and the tort reform advocates cite the same landmark Supreme Court ruling, Wickard v. Filburn, for their bills.

So if Obamacare wins, the cause of federal tort reform will advance. If Obamacare wins, courtroom doors around America could close. If Obamacare wins, victims of medical malpractice, defective drugs and devices, nursing home abuse, and deadly hospital errors could eventually see their lawsuits dismissed. Nationwide.

A few groups get this. Constitutional conservatives like Sen. Lee, the legal experts I cited, Tea Party leaders such as Judson Phillips, all get it. They want nothing to do with Obamacare OR federal tort reform.

The medical providers and associations get it too. They pushed Obamacare in Congress under secret deals with the Obama White House and backed it in court. They want millions of new patients, paid for by the rest of us. They push H.R. 5 and other federal tort reform bills because it gives them effective immunity from civil suits.

Pro-Obamacare civil justice liberals don’t get it. I’ve seen post after post, article after article, from those who pledge to protect “justice for all” or whose entire business model depends on open courtrooms, nodding their heads at Obamacare in full bobblehead mode. I shake my head in wonder.

But soon, very soon, the Supreme Court will redefine the meaning of the Commerce Clause in the Obamacare decision. Then one side will win and another will lose, and we’ll know more about the limits of federal power.