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Tomorrow I will be in Nashville, TN, to promote the universal right to civil jury trials, standing alongside the Tennessee Association for Justice and Susan Saladoff, producer of the documentary movie, Hot Coffee, which tells the truth about the famous McDonald's "hot coffee" case. As I mentioned in an interview with the Tennessee Public News Service, the "tort reform" side has mythologized that case, completely distorting the facts. Judson Phillips, founder of Tea Party Nation, rebutted those myths with actual facts in a December WorldNetDaily piece on the unconsitutionality of federal tort reform. I'm very pleased that Judson will join us tomorrow in Nashville.

It's critical that Americans learn of the importance that the Founding Fathers gave to the right to civil jury trials for all causes and in all courts, state and federal. Historian Pauline Maier's book, Ratification: The People Debate the Constitution, 1787-1788, has drawn rave reviews from a number of conservative legal scholars. Randy Barnett called it "marvelous" and described it as "the first comprehensive narrative of the ratification of the U.S Constitution, from the Philadelphia convention, through each of the states (in order of deliberation) and the drafting and adoption of the first 10 amendments." So I downloaded it on Kindle and searched for references to the right to a civil jury trial. And the book refers to a number of instances in which the states discussed and debated the need to protect that right in explicitly in the Bill of Rights after the delegates to the Constitutional Convention rejected motions to do so in the Constitution.

The benefit of the right to civil jury trials and the need to protect that right was a part of numerous state ratification conventions. For instance, the delegates to the Pennsylvania ratification delegation entered into a heated argument over whether Sweden had utilized, and then eliminated, civil jury trials and the impact on civil justice, which was resolved only when a commentary by the English jurist William Blackstone proved that civil jury trials had been commonplace thoughout Europe. The book documents similar debates in Connecticut and Virginia, the latter resolved by reference to the same Blackstone commentary that determined the debate in Pennsylvania. No less a patriot than Patrick Henry argued that the lack of explicit protection of jury trials for civil and criminal cases would lead to the loss of all rights. It was these debates that eventually led James Madison to propose the inclusion of what became the Seventh Amendment in the package of constitutional amendments proposed during the first Congress. And as I've documented in posts here, most state constitutions explicitly protect the right to civil jury trials.

I hope tomorrow's events in Nashville will be a springboard to a nationwide discussion on the meaning of the Seventh Amendment and the need to protect the God-given right to civil jury trials in state and federal courts. It's clear from the documentation of the state ratification conventions that the Founders did not intend to see this precious right limited or eliminated in state courts.

Within the last week, two conservatives who have previously opposed federal tort reform on constitutional grounds did so again. Judson Phillips, founder of Tea Party Nation, wrote Tort Reform? It's Unconstitutional on World Net Daily on December 13. He began by reiterating the Founding Fathers' support for the right to a civil jury trial:

First, there is no authority in the Constitution for the federal government to take over an area of law that has always been governed by the states. There is also no provision in the Constitution that allows the federal government to impose price controls on one industry or even one segment of an industry.

Perhaps more importantly, it flies in the face of what the founders undoubtedly considered the most important of the constitutional rights, the right to a jury trial.

The Founding Fathers considered the jury trial to be so important that it is the only right in the Bill of Rights that is specifically enumerated in two amendments.

Then Judson recounted the story of the McDonald's "Hot Coffee" case to show how the real facts of that case differ markedly from the mythology surrounding it, and how the jury decision in the case led to a change in corporate behavior:

In the end, the jury decided that Ms. Liebeck was partially at fault for the accident, so the damages award was reduced by 20 percent to $16,000. Ms. Liebeck asked for punitive damages, and the jury, after considering the evidence, awarded punitive damages of $2.7 million, or the equivalent of two days of profit McDonald's receives from its coffee sales.

In post-trial motions, the judge reduced the punitive damages to $480,000. In the end, McDonald's settled the case, and the details were kept confidential.

The free-market system is a wonderful system. It promotes good behavior and punishes bad behavior. McDonald's chose to sell its coffee at a temperature that caused injuries to people so it would make more money. The jury sent McDonald's a message, and today McDonald's does not sell its coffee at 190 degrees.

Rob Natelson, longtime law professor and constitutional scholar at the Independence Institute in Colorado, also reiterated his opposition to federal tort reform last week in an interview on the nationally syndicated What's Up radio program, hosted by Terry Lowry. On November 21, I posted about his new study, The Roots of American Judicial Federalism, in which he quoted from the numerous writings of the Founding Fathers. They clearly opposed any federal intervention in state judicial systems, including in civil justice issues. Rob's interview on December 12 was broadcast in four parts, with the third segment and the fourth segment (podcasts) the most pertinent, discussing the separation between federal and state powers as developed during the Founding Era. Proponents of federal tort reform ignore the sizable body of evidence presented by Rob Natelson and real Constitutional conservatives, but have lost the intellectual and political battle in Washington during 2011.

In their zeal to adopt a federal malpractice reform bill to dictate procedures to state courts, many Republicans in Congress are doing precisely what they rightly accuse Democrats of doing: blithely disregarding the Constitution's clear limits on federal power.

Their proposals, once encapsulated in H.R. 5 and then slipped into the Senate Republican "jobs bill," not only violate the true meaning of the Constitution, but also likely run afoul of such modern Supreme Court cases as New York v. United States and Printz v. United States, which voided efforts to impose unfunded federal mandates on state officials. The same Virginia attorney general who brought the first suit against Obamacare has threatened to challenge this measure in court as well.

The effort to impose federal control over state courts and state civil justice violates one of the core principles of our federal system: That most judicial matters are local. Keeping courts and procedures local is, in fact, a crucial protection for individual liberty.

As I show in my new paper, "The Roots of American Judicial Federalism," one of the chief causes of the American Revolution was the British effort to undercut local courts by centralizing the administration of justice. As I also explain, after the Revolution Americans deliberately enshrined the local-control principle in our Constitution.

In other words, medical malpractice reform, like most other aspects of civil justice, is a matter for state, not federal, law. (Emphasis added.)

So wrote Rob Natelson, Senior Fellow in Constitutional Studies at the Independence Institute in Colorado, in a post titled, "Congress, Butt Out! The Constitution Reserves Malpractice Reform for the States" to introduce his newest research study, The Roots of American Judicial Federalism. Rob Natelson is one of the most respected constitutional scholars in America; was Montana's best known political activist -- leading, among other campaigns, the most successful petition-referendum drive in Montana history -- and in June 2000, was the runner-up among five candidates in the party primaries for Governor of Montana.

The Roots of American Judicial Federalism is not Rob Natelson's first foray into the federal medical malpractice debate. In April, he became the first of a long line of conservative and Tea Party-side activists and scholars who oppose federal medmal laws on federalism grounds. In his letter to Congress, he spelled out the constitutionally based objections to H.R. 5, the primary bill desired by the medical groups to limit all health care lawsuits, including those filed for medical malpractice. "H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution's Commerce Power. Yet as I shall explain, its subject-matter--civil actions in federal and state courts--is not within the Constitution's meaning of 'Commerce.' Nor can H.R. 5 be justified under the Necessary and Proper Clause as incidental to the regulation of interstate Commerce."

In the opening page of Roots, Natelson explains that the Founding Fathers were committed to reserving tort law for the states, even years before the drafting of the Constitution.

In drafting the Constitution, the Framers provided for additional federal judicial authority. Like the post-1768 pre-Revolutionary pamphleteers, however, they rejected proposals for a central government with power over all activities with inter-jurisdictional impact. Instead, they limited federal authority to items specifically enumerated. Reserved to the states would be nearly all the authority they had exercised previously, including power over state court procedures and over existing areas of substantive jurisdiction. With a few exceptions, therefore, the states were left in exclusive possession of the law of torts, contracts, inheritance, property, and criminal law.

When the Constitution became public in September, 1787, opponents argued that the Constitution could be construed to permit Congress or the federal courts to exceed prescribed limits. They contended that the new government might interfere with criminal and civil justice within the states. The Constitution, they said, should be rewritten to prevent manipulation of its terms by legal "sophistry."

To quiet such apprehensions, the Constitution's proponents explained to the ratifying public that the Constitution, if adopted, would grant only restricted authority to the new government. The Constitution's proponents listed for the ratifying public numerous areas in which the federal government would have no power and the states would enjoy exclusive power. Among the areas listed were several pertaining to state judicial systems.

The remainder of the study reveals the detailed writings of the Founding Fathers in support of judicial federalism. Professor Natelson quotes them time and again, including in letters and pamphlets that many Americans have probably never read before:

Like earlier authors, the writers of the 1774 pamphlets emphasized that judicial matters should be administered locally. In his Novanglus, (John) Adams pointed out that the dispute between colonists and the British government was not limited to taxes:

"Is the threepence upon tea our only grievance? Are we not in this province deprived of the privilege of paying our governors, judges, &c.? Are not trials by jury taken from us? Are we not sent to England for trial? Is not a military government put over us? Is not our constitution demolished to the foundation?"

Alexander Hamilton, in A Full Vindication of the Measures of Congress, agreed:

"Give me the right to be tried by a jury of my own neighbors, and to be taxed by my own representatives only. What will become of the law and courts of justice without this? The shadow may remain, but the substance will be gone. I would die to preserve the law upon a solid foundation; but take away liberty, and the foundation is destroyed."

Professor Natelson discusses the assurances that delegates to the Constitutional Convention gave to the public that the right to a civil jury trial would not be abridged:

At the New york convention, Hamilton underscored exclusive state jurisprudence over internal state administration, arguing that state powers are "civil and domestic--to support the legislative establishment, and to provide for the administration of the laws." He added that:

"Were the laws of the Union to new-model [reform] the internal police of any state; were they to alter, or abrogate at a blow, the whole of its civil and criminal institutions; were they to penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals,--there might be more force in the objection; and the same Constitution, which was happily calculated for one state, might sacrifice the welfare of another."

Chancellor Robert R. Livingston assured the convention that state power over traditional areas of judicial power was exclusive:

"They tell us that the state governments will be destroyed, because they will have no powers left them. This is new. Is the power over property nothing? Is the power over life and death no power? . . .In one word, can [Congress] make a single law for the individual, exclusive purpose of any one state?"

Natelson concludes by discussing the fight to recognize the right to a civil jury trial and the states' right to run their own civil justice systems through a Bill of Rights.

Federalists had to go beyond representing the meaning of disputed provisions. They also had to promise that they would support a bill of rights once the Constitution was ratified. Five of the 11 ratifying state ratifying conventions had accompanied their approval with suggested amendments. The two states that thus far had refused to ratify, North Carolina and Rhode Island, determined to stay out of the union until a bill of rights was proposed.

Among the restrictive amendments were some restraining the federal judiciary. Thus, the Fourth Amendment regulated judicially-issued warrants, the Fifth barred double jeopardy, the Seventh prescribed jury trial in civil cases, and so on. The Ninth and Tenth Amendments were the declaratory amendments. They highlighted the limited scope of federal powers, including federal powers over judicial matters.

Although the Ninth Amendment is widely misunderstood today, its principal role was as a protection for federalism, including judicial federalism. It affirmed that Congress was no more able to impair the independence of the state judiciaries after adoption of the Bill of Rights than had been true before adoption.

The Tenth Amendment, based on the most popular proposal from the states, reinforced that whatever was not given was reserved. It may have been targeted specifically against claims raised during the Confederation period that, despite the Articles' limits on congressional power, Congress enjoyed additional "inherent" authority merely by virtue of being a sovereign.

In other words, both the Ninth and Tenth Amendments rendered explicit the Constitution's implicit restraints on Congress and the federal judiciary, as explained by Federalist essayists during the ratification debates. Both amendments protected the exclusive sphere of the states, including the integrity of the state courts.

Rob Natelson's study is a enormously revealing and powerful paper that will assist real constitutional conservatives in their fight against the federal takeover of state courts. The tort reform movement finds itself without intellectual ammo, and cannot cite any writing from the Founding Fathers in support of their positions (I've offered free dinner on that). I will post quotes from this outstanding paper throughout the coming weeks.

Over the course of the year, I've quoted constitutional scholar Rob Natelson of the Tea Party-side Independence Institute numerous times, for his clear writings condemning a federal bill to limit damages awarded in medical malpractice and other health care-related lawsuits. He continues to analyze the original writings of the Founding Fathers to determine their intentions for the scope and shape of the powers enumerated to the federal government in the Constitution.

Writing recently on the pages of the Tenth Amendment Center, Natelson wrote an article titled, "The Greatly Misunderstood Chief Justice John Marshall." In it he discussed the twisting of Marshall's legacy by historians to justify judicial activism. Included in the discussion is an analysis of Marshall's rulings in key cases such as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), the case often cited for an expansive view of the Commerce Clause by proponents of both ObamaCare and a federal tort reform bill to override state court systems. Natelson describes the actual intention of Marshall's rulings in those two cases:

Marshall's treatment of the Necessary and Proper Clause in McCulloch v. Maryland is widely misunderstood by people who (A) don't know the law of the time, (B) haven't read the entire opinion, and/or © don't know that two of the words Marshall used--"convenient" and "appropriate"-- had narrower meanings in his time than they have today. Marshall himself explained the decision in a subsequent series of op-eds, where he acknowledged that the Necessary and Proper Clause is not a grant of power at all, but an interpretive guide.

Gibbons v. Odgen is often appealed to, as Justice Jackson did, for a very broad reading of the "commerce" component of the Necessary and Proper Clause. Under this reading, the Necessary and Proper Clause allows Congress to regulate any economic activity "substantially affecting" interstate commerce: agriculture, mining, manufacturing, heath care, insurance, medical marijuana--in fact, the entire economy.

However, Gibbons did not even mention the Necessary and Proper Clause. The primary holding of Gibbons was that navigation was within the prevailing legal definition of "commerce" for constitutional purposes--a decision that, under the original understanding of the Constitution, was clearly correct. Some of the Court's dicta (extraneous language) added that in some circumstances commerce (including navigation) within state boundaries might be so tied up with interstate commerce that Congress could regulate it as well. But when Marshall addressed other aspects of the economy, it was to say that they were outside of Congress's power. He specifically mentioned "health laws of every description" as being reserved exclusively to the states.

So those who use Gibbons to argue for the constitutionality of federal control of manufacturing, agriculture, land use, or health care are twisting some of Marshall's words and omitting others.

In other words, the pro-ObamaCare forces and the pro-tort reform causes make the same error for the same reasons. In both cases, the result of victory in each case would be the exercise of excessive federal power, to the detriment of individual rights and the rights of individual states to regulate and manage the daily activities of the citizenry.

Americans are fortunate to have someone like Rob Natelson who has the ability and time to dig into the details of the foundational documents of our nation and educate us on the limits on federal power as intended by the Founders.

'And a trial by jury shall be preserved as usual in civil cases.'

Elbridge Gerry, one of the signers of the Declaration of Independence, proposed that addition to the draft of the U.S. Constitution near the end of the Constitutional Convention in September 1787. Charles Pinckney, delegate to the convention from South Carolina, joined him in the motion. The motion reflected the fervent belief by the two men that the Constitution would be incomplete and would not sufficiently protect the rights of individuals and of the states, in particular the right to a jury trial for civil cases. Gerry voted against the Constitution for that reason and was joined by George Mason and Edmund Randolph of Virginia. Although the motion was defeated that day, co-authors Gerry and Pinckney saw their motion included in the Bill of Rights introduced into the First Congress by James Madison and ratified by the states as the Seventh Amendment to the Constitution.

This quote is included in an excellent article, Charles Pinckney and the Seventh Amendment, written by Joel W. Collins, Jr., of the firm of Collins & Lacy, PC, for the Fall 2009 issue of Voir Dire, published by the American Board of Trial Advocates. The article also includes additional details on the development of the right to a jury trial for civil suits, and I highly recommend it.

Rob Natelson, one of the leading Constitutional scholars of the Tea Party movement, declared on Tuesday that "H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments." That bill, as I've described numerous times here, would place new federal limits on lawsuits filed against a broad range of health care-related companies, including doctors, hospitals, drug & device companies, insurance companies, and nursing homes. Professor Natelson is an expert on the Founding Era; a former Republican candidate for Governor of Montana; and now Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Colorado, a non-partisan, free-market-oriented public policy research organization. Writing in his personal capacity to the Chairmen and ranking Members of the House Judiciary and Energy & Commerce Committees, he cited the Founders' writings for concluding that (1) civil actions in state and federal courts are not "commerce" under the Commerce Clause; and (2) H.R. 5 is not justified under the Necessary and Proper Clause. Moreover, according to Professor Natelson, the proper interpretation of the Commerce Clause excludes "health laws of every description," a phrase used by Supreme Court Chief Justice John Marshall in the landmark case of Gibbons v. Ogden, 22 U.S. 1 (1824). Finally, Professor Natelson asserts that the section of H.R. 5 which purportedly protects states from pre-emption "grants protection only when the state undertakes policy choices preferred by Congress." He describes that section as "more in the nature of an insult to the states than a protection of federalism."

Professor Natelson also posted the letter on The Electric City Weblog in an entry titled, Yet MORE disregard for the Constitution -- this time from Republicans. You can download Professor Natelson's letter from that site (4.6 MB Acrobat). I hope you will disseminate his letter widely.

Today is the 260th anniversary of the birth of James Madison, fourth President of the United States, principal author of the Constitution and Bill of Rights, the latter of which merits him the title of "Father of the 7th Amendment." Today at Montpelier, his birthplace in Virginia and lifetime home, they're celebrating by unveiling an historical marker in honor of First Lady Dolley Madison, and by holding a wreath-laying ceremony at President Madison's grave. And so it is fitting and proper to remember the following:

James Madison loved civil suits. He considered the right to a jury trial for civil suits equal in importance to each and every right in the Bill of Rights, including the freedoms of speech, assembly and religion; the right to bear arms; the right to a jury trial for criminal cases; and the right for the states and the people to exercise those powers neither delegated to the United States not prohibited to the states and people. And James Madison NEVER, EVER, proposed anything close to the subversion of civil jury trial rights through the application of the Supremacy or Commerce Clauses.

Madison wrote the text of the 7th Amendment, posted above in the website banner, as well as the following categorical endorsement of the right to a jury trial for civil suits: "In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Two years ago on this anniversary, Steven Waldman, the Editor-in-Chief, President & Co-Founder of Beliefnet.com , the largest faith and spirituality website, wrote a terrific piece on the Wall Street Journal describing Madison's love of religious liberty and his strenuous efforts to protect it in the Bill of Rights. Madison knew full well, from the history of the British people, that one peaceful way to ensure the free exercise of religion would be to sue anybody who would infringe upon that right, and have that claim heard before a local jury of peers. He knew that Article 39 of the Magna Carta guaranteed that right, and he knew that the British drifted away from their rights during the years of the Star Chamber. When George Mason and other patriots objected to the ratification of the Constitution without a Bill of Rights, he wanted to ensure that all Americans would recognize and protect their unalienable rights. So after the states ratified the Constitution, he introduced 17 amendments in the first Congress, of which ten were ultimately ratified.

James Madison would oppose every pro-"tort reform" bill proposed in Congress, period. No one can convince me otherwise.

Modern conservatives looooove Alexis de Tocqueville, and with good reason. This erudite French gentleman arrived to travel in 1831 in this country, which was so new and unknown to the rest of the world, and wrote so eloquently of the democratic and cultural institutions at the heart of our independence that he attracted a worldwide audience to his writings and to the United States. As a lifetime conservative Republican, I quote him and place his writings at the very top of my "must read" list for the young relatives in my family. But it's funny - I hardly ever see my favorite conservative commentators mention, let alone quote, de Tocqueville on the importance of the 7th Amendment right to a jury trial for civil suits. Yet he wrote copiously about it in Chapter 16 of his signature work, Democracy in America. Here's an excerpt with his thoughts:

When the jury is reserved for criminal offenses, the people witness only its occasional action in particular cases; they become accustomed to do without it in the ordinary course of life, and it is considered as an instrument, but not as the only instrument, of obtaining justice. When, on the contrary, the jury acts also on civil causes, its application is constantly visible; it affects all the interests of the community; everyone co-operates in its work: it thus penetrates into all the usages of life, it fashions the human mind to its peculiar forms, and is gradually associated with the idea of justice itself. The institution of the jury, if confined to criminal causes, is always in danger; but when once it is introduced into civil proceedings, it defies the aggressions of time and man...

I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use that they have made of the jury in civil causes. I do not know whether the jury is useful to those who have lawsuits, but I am certain it is highly beneficial to those who judge them; and I look upon it as one of the most efficacious means for the education of the people which society can employ."

Certainly this icon of modern conservative deserves to have these words treated with the same respect given to his writings on other aspects of American culture.