August 2011 Archives

On July 27, I wrote for the third time about the real facts on the severe limits imposed in Texas on medical malpractice lawsuits. This week, Terry Lowry, host of the nationally syndicated What's Up radio program, interviewed Alex Winslow, Executive Director of Texas Watch, about the results of the virtual elimination of those lawsuits through a constitutional amendment.

Mr. Winslow discussed the promise made to voters in Texas in 2003 that individual and overall health care costs would be reduced as a result of the limits in medmal lawsuits. But state and family costs (premiums and out-of-pocket costs) have risen and the state's cost of health care is rising faster than national average, the exact opposite of what was promised. Texans were promised that giving away their right to hold wrongdoers responsible in a civil jury trial would result in lower costs.

Texans were also promised that that the quality and access to care would improve, and by every measure those promises have also been broken. The access to health care - the number of doctors - has not increased at all in rural and poor areas, such as in the Rio Grande Valley. The AMA still ranks Texas in the mid-40s in the number of physicians per capita, so the influx of doctors in Texas hasn't kept up with the increase in state population. Meanwhile, according to Mr. Winslow, the Texas Medical Board, which is supposed to sanction bad doctors, is neither acting more quickly nor sufficiently sanctioning the small percentage of dangerous doctors in Texas. For instance, the TMA doesn't run background checks on doctors moving from another state; a doctor practicing in Corpus Christi apparently left Minnesota in a hurry after leaving a trail of medmal claims.

You can listen to the first segment of the interview here, the second segment here, and the third segment here.

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

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

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

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

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

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

Texas Governor Rick Perry is putting a Presidential campaign in place, and I assume he'll run. But which Rick Perry will we see? Will we see the Rick Perry who cherishes and honors the 10th Amendment as the vehicle for protecting states' rights - the one who is willing to honor a state's decisions even when it might interfere with his personal views? Or will we see the Rick Perry who continues to brag about Texas-style tort reform, as it it's a nationwide solution, even though federal tort reform is clearly a breach of the 10th Amendment and states' rights? On July 23, I asked whether he would stand against federal tort reform as a true Constitutional conservative, and what I've seen since then hasn't lessened my curiosity or concern.

Both Rick Perrys were on display on July 30, when he addressed the Western Conservative Forum in Colorado. He began the substantive part of the speech by proposing that Washington "has intruded upon the rights of the states and individuals to make decisions about our own healthcare, our businesses, our money,..." all pure pro-10th Amendment, anti-ObamaCare talk. Terrific! And then he described the Constitutional limits on the federal government, and he read the entire 10th Amendment. Great, love it! But then he talked about the Texas model for economic success, which includes tort reform "so frivolous lawsuits don't paralyze employers..." He never specifically called for a one-size-fits-all, federally mandated takeover of state civil justice systems, but he left the obvious impression that he would take that idea forward, with no consideration of the rights of states or individuals. And in his book, "Fed Up," Governor Perry says that Republicans stand for ending frivolous lawsuits through "real tort reform," again with no thought for the Founding Fathers' respect for civil jury trials.

So while Governor Perry hasn't specifically called for Uncle Sam to run over the 7th Amendment right of individual Americans to seek a civil jury trial, or or pre-empt the 10th Amendment right of states to run their own courtrooms, it's obvious that he hasn't read what's already been said on the issue by Reps. Ron Paul and Ted Poe; Sen. Tom Coburn; anti-ObamaCare Prof. Randy Barnett and six other experts on the Constitution; Mark Meckler; pro-life activist Ken Connor; and the nation's largest group of state legislators. All of them say that Texas-style tort reform is unconstitutional on the federal level. There are no group of legal experts who say otherwise now.

The country doesn't need a part-time Constitutional conservative - we have enough of those. I hope Governor Perry makes a strong statement of his pure commitment to Constitutional rights before he starts the campaign.

P.S. To all of you who attended the WCF and applauded loudly at Gov. Perry's comments on tort reform, I can only say that you're not real Constitutional conservatives... yet.

One editorial note here about what has been termed by politicians and the public the "ridiculous" debt limit debate as the compromise bill is enacted. Now matter which side you take in the outcome, it should be clear that the issue highlights the massive size and scope of federal power today (80 million checks a month!), and the tendency for that power to eventually overshadow all other facets of Americans' daily life. That's exactly what the Founding Fathers feared, and why signers of the Constitution, such as George Mason, Eldridge Gerry and Edmund Randolph, led the movement to ensure that federal power is limited even beyond the language of the Constitution, through enactment of a Bill of Rights. Many wise legal scholars are asserting, correctly, that the Commerce Clause in Article I of the Constitution was never intended as the basis for either ObamaCare or a sweeping federal tort reform/medical malpractice bill. George Mason explicitly warned that, absent a Bill of Rights, the power granted in Article I would eventually overpower both God-given individual rights (including the right to civil jury trials) and the authority which is better left to the states.

In the midst of overheated rhetoric about the intentions of either sides in the debt limit debate (I take particular offense to the characterization of Tea Party activists as "terrorists"), I hope all Americans determine that any enterprise with this much power MUST be limited by strict and pure adherence to the protection of individual and states' rights. Any politician who adheres to such a belief cannot pick and choose between which rights to protect and the time at which to protect them. The "ridiculous" debt limit debate is the perfect opportunity for those of us who cherish the right to civil jury trials to remind the rest of America that the man who drafted the Bill of Rights, James Madison, referred to that particular right in the highest terms: "as essential to secure the liberty of the people as any one of the pre-existent rights of nature."