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.