November 2010 Archives

The National Convention of the Federalist Society included a debate over how to protect the powers reserved in the 10th Amendment for the states. One proposal offered by participants was to hold a Constitutional convention to expressly limit the federal government's powers and rejuvenate states' rights. The Federalist Society's blog summarizes the pro-convention/amendment position as follows: "Prof. Michael Stokes Paulsen of St. Thomas Law School argued that Congress had overstepped its constitutional bounds to the extent that the only way to remedy its intrusion into the authority of the states was for the states to call a convention to amend the Constitution. Both he and former Texas solicitor general R. Ted Cruz called for such a convention as a real possibility in the aftermath of the last election. Cruz argued that amendments produced by such a convention should include a balanced budget amendment, a supermajority requirement for raising taxes, and giving the President the line-item veto." You can see the video of the debate on the Convention website. Meanwhile, a Washington Post story on the debate notes the ambivalence or outright opposition of some GOP Establishment icons to a convention and amendment.

Sign me up for that convention and the amendment!! After all, the states' rights enumerated in the 10th Amendment and the right enumerated in the 7th Amendment (for a jury trial for civil suits) are joined at the hip. The 10th Amendment is, in effect, the implementing mechanism for 7th Amendment rights. The federal preemption movement has been crushing both simultaneously for years now, by taking over the regulation of such items as pacemakers and financial services while granting immunity from civil suits to the affected industries. Much of the business community represented in Washington by the U.S. Chamber of Commerce hypocritically complains about out-of-control regulators while backing federal preemption across the board. It's no surprise that those inside the GOP elite in Washington who back preemption don't really want to limit their power to take over states' functions.

So a Constitutional convention and amendment to limit federal powers, and uphold states' rights, will inevitably move the needle back towards the Founding Fathers' express intent to allow citizens to present their civil claims before a local jury of their peers. Let the convention begin!

On November 16. the Center for Security Policy, the 7th Amendment Advocate and The Legal Project of the Middle East Forum presented a discussion on Capitol Hill entitled, "Shariah vs. the Constitution." Opening remarks on that topic was the event's sponsor, Rep. Doug Lamborn. The panel featured David Yerushalmi, General Counsel, Center for Security Policy; Daniel Huff of The Legal Project of the Middle East Forum; and me. The Center for Security Policy's Frank Gaffney moderated the panel and led the discussion. The panel was my idea and followed the debate over the decision by New York City zoning officials to allow Imam Rauf to build his mosque near Ground Zero.

I presented the history and purpose of the right to a jury trial for civil and criminal cases, starting in ancient times, through the signing of the Magna Carta and centuries of British law, to recognition in the founding documents of the United States. I contrasted American constitutional law with the principles of sharia justice, in which there are no juries and little resemblance to the official Federal Rules of Civil and Criminal Procedure in use in the United States today. As a warning to participants, I discussed the confusing judicial systems in use in Malaysia, in which some Muslim communities are allowed to apply various forms of sharia law in their courtrooms, while non-Muslim areas employ traditional procedural norms that provide the types of safeguards provided in 800 years of American and British law. As I posted on September 8 and on August 30, Sharia civil and criminal procedure - if you can call it that - is clearly incompatible with the right to jury trials protected in the Bill of Rights. American judges must resist any notion that they should compromise the Constitution to appease Muslims or any other faith.

The Center for Security Policy has posted a video of the panel on its Secure Freedom YouTube channel. I will post a transcript or link to a transcript when it becomes available. I appreciate the opportunity to participate in the panel and hope we can conduct a repeat performance for new Members of Congress and other audiences early next year.

The last Showcase Panel at this year's National Convention of the Federalist Society focused on "Ideas for Structural Change," including "reviving the right to civil jury trials." Among the panel participants was Gibson Vance, shareholder at the Beasley Allen law firm and current President of the American Association for Justice (AAJ), the largest trial lawyers' association in the world. He spoke on AAJ's dedication to promoting the 7th Amendment, the importance of the 7th Amendment to plaintiffs across the country and current dangers to our unalienable right to civil jury trials. I've attached the full text of his remarks here. UPDATE: The Federalist Society posted video and audio of the panel here, and Gibson Vance's remarks begin around the 44-minute mark.

Here are selected quotes from Gibson Vance's remarks:

"Many organizations in Washington support various issues, but we care about only one: supporting and defending the 7th Amendment to the Constitution.... the Right to a Trial by Jury. The 7th Amendment guides every position we take. The issues we support, as well as the one's we oppose, are all based on their consistency with the spirit and intent of the 7th Amendment."

"The right to a trial by jury for civil suits dates almost 800 years, to the signing of the Magna Carta. Article 39 of the Magna Carta specifically guaranteed the right to a jury trial for civil suits and criminal cases, and our Founding Fathers also agreed with the importance of a trial by jury. In the words of James Madison, whose silhouette is your symbol, (said,) '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.'"

"Pre-dispute, mandatory, binding arbitration, directly endangers the 7th Amendment. Recently, my family placed my 98-year-old Grandmother in a nursing home. During the admissions process, the first document we were asked to sign had nothing to do with my Grandmother's health, treatment, or even the cost of her care...it was a forced arbitration clause, waiving her right to a jury trial for any and all acts...including wrongful death. Certainly this is not what our forefather's had in mind. The pre-dispute forced arbitration process, found in virtually all consumer and employment contracts, is very often skewed in favor of corporations and against the interest of consumers and employees."

"Today, I present a challenge: for those in attendance who may support so-called "tort reform," please consider how this conflicts with the principles of limited government you also promote. In many ways, the concept of 'tort reform' is an assault on states' rights and individual freedom."

"My ultimate goal as president of AAJ is to raise the profile of the 7th Amendment. Americans universally know that the 2nd Amendment protects the right of the people to bear arms. Our Founding Fathers had no intention of making the 2nd Amendment more or less important than the 7th, or any other part of the Bill of Rights. It is up to groups like AAJ, and the Federalist Society, to educate lawmakers, the legal community, and the public that we cannot pick and choose which parts of the Constitution to follow or to ignore."

"We have wandered too far off the path envisioned by our Founding Fathers of a government with few and defined powers. Government was supposed to be about doing only a few things; today government is about doing nearly everything. It has intruded in our business and personal lives in ways unimaginable to the wise men who gathered in Philadelphia in the sweltering summer of 1787. And to increasingly little positive benefit."

Bravo, a noble sentiment which could stand atop the website of every Tea Party organization in America. It's actually on a website of the U.S. Chamber of Commerce and used to trumpet a new board game which shows the over-regulation of American business by the Obama Administration. I have no problem with the Chamber's campaign to stop excessive regulation - I'm with them there.

But I have a big problem with any group that cites the Founding Fathers on one hand, then attacks the unalienable rights that the Founders fought to protect and enshrine in the Constitution. And the Institute for Legal Reform, an affiliate of the Chamber, works daily to degrade the right protected by the 7th Amendment to a jury trial for civil suits. The ILR has championed the overruling of state regulation of financial services, drugs, and medical devices in favor of more interference by federal bureaucrats. The Chamber apparently didn't even consider the blatant inconsistency of calling for a return to the teachings of the Founding Fathers on one website, while advocating on another website to ignore what the Founders actually wrote about the civil justice process.

To make matters even worse, the ILR website includes the text of a 2008 story about "a re-enactment of the Constitutional Convention of Sept. 17, 1787, when James Wilson, a delegate from Pennsylvania, along with 54 others signed the U.S. Constitution." The story makes a point of saying, "Equally important were the first 10 amendments, also known as the Bill of Rights, that guarantee the critical freedoms of speech, press, religion and the right to bear arms." Funny, it doesn't even mention the 7th Amendment right to a jury trial for civil suits, although James Madison, the Founding Father who pushed it through Congress to enactment by the states, thought that right was "as essential to secure the liberty of the people as any one of the pre-existent rights of nature." The omission would be funny if it didn't involve a danger to our unalienable, God-given rights.

"Parliament was influenced to adopt the pernicious project, and assuming a new power over them, have in the course of eleven years, given such decisive specimens of the spirit and consequences attending this power, as to leave no doubt concerning the effects of acquiescence under it. They have undertaken to give and grant our money without our consent, though we have ever exercised an exclusive right to dispose of our own property; statutes have been passed for extending the jurisdiction of courts of admiralty and vice-admiralty beyond their ancient limits; for depriving us of the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property..." -- Declaration of the Causes and Necessity of Taking Up Arms, enacted July 6, 1775 by the Second Continental Congress

The Declaration of the Causes and Necessity of Taking Up Arms was a document issued to explain why the colonists had initiated armed conflict against Great Britain, and was written by John Dickinson of Virginia based on a draft by Thomas Jefferson. To quote the Wikipedia article on it, "The Declaration describes how the colonists had, for ten years, repeatedly petitioned for the redress of their grievances, only to have their pleas ignored or rejected by the British monarchy and government. Even though British troops have been sent to enforce these unconstitutional acts, the Declaration insists that the colonists do not yet seek independence from the British Empire, only a self-governing place within it. They have taken up arms 'in defence of the Freedom that is our Birthright and which we ever enjoyed until the late Violation of it', and will "lay them down when Hostilities shall cease on the part of the Aggressors.'" (Thanks to Beth White of the West Virginia Association for Justice for the reference to the Declaration.)

The links in the right sidebar attest to the clear, unambiguous stand of the Founding Fathers that "the Freedom that is our Birthright" included the unrestricted right to jury trials for civil suits.

The Declaration of the Causes and Necessity of Taking Up Arms, along with those quotes, together comprise an irrefutable argument that the Founding Fathers would never have supported any measure of "tort reform" now proposed by "conservative" Republicans, at least one self-described "Tea Party" group, and the so-called "Deficit Commission." In fact, as I have posted here already and reasserted on the 7thAA Twitter page, I'll buy the best dinner in Washington, including wine and dessert, if anyone can point to ONE pro-"tort reform" quote by the Founding Fathers.

As a long-time active member of and donor to the Federalist Society, I was excited to see that the theme for this year's National Convention on November 18-20 is, "Controlling Government: The Framers, the Tea Parties and the Constitution," and I noticed that the last Showcase Panel, on November 20, will discuss Ideas for Structural Change: Term Limits, Reviving the Right to Civil Jury Trial, Moving Administrative Law Judges to Article III, and Others. I contacted the Society's leadership and persuaded them to invite C. Gibson Vance, a partner at the firm of Beasley, Allen, Crow, Methvin, Portis & Miles, PC and current President of the American Association for Justice, to that panel. This is the first time that a President of the largest trial lawyers' group in the world has been invited to participate in the National Convention at the Federalist Society, and I hope Gibson's appearance draws wide interest and press coverage. As you can see from his bio, his life has been a true example of the American Dream, having worked starting in his teen years and all the way through law school. I predict that attendees to the panel will see a side of the plaintiffs' bar that they won't get in the mainstream media, and they just might be surprised at what Gibson says on this important topic. The Federalist Society's leadership deserves kudos for reaching out to AAJ and inviting Gibson to appear on the panel.

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!