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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.

The Founding Fathers built a civil justice system designed to protect the God-given, unalienable right of all Americans to present their claims before a local jury. That right was enunciated centuries ago by Moses, when he decreed that a man whose property is damaged by a neighbor's actions is entitled to punitive damages. That right to civil justice was protected by Article 39 of the Magna Carta, sealed in 1215, when English peasants forced King john to recognize God-given rights to self-government. That right was protected by our Founders in the 7th Amendment to the Constitution, introduced by James Madison during the first Congress, along with the other amendments in the Bill of Rights.

The Founders didn't limit the exercise of that God-given right to certain causes or to one group of citizens over another group of citizens. As the shackles of racism and sexism were removed, all Americans were eventually afforded that right to seek justice before a jury for their claims. So trespass cases, medical malpractice claims, property rights claims, and lawsuits to protect religious liberty under the First Amendment are equal under the Constitution and Bill of Rights, just as each so if is equal in the eyes of God.

Today on the nationally syndicated What's Up broadcast on Sirius Channel 131 and 12 radio stations, I discussed the fight for religious liberty brewing over the Obama Administration's "compromise" on the mandate for insurers to provide contraceptives, some of which act as abortifacients. Those of us who own a business and are faithful to the teachings of the Catholic Church, and non-Catholic business owners whose religious convictions oppose abortion, will find it impossible to reconcile that mandate with our religious convictions. Eventually, we might have to seek justice, and prevent the imposition of that mandate, by filing suit in federal court. In so doing, we would follow in the footsteps of our forefathers who sought protection from excessive power wielded by the sovereign, through an appeal in the halls of civil justice. Regardless of anyone's views on the underlying issues, all Americans should respect the conscientious objections to certain types of medical services, and all Americans should respect the constitutionally protected right to defend such objections in a court of law.

You can download my audio interview from the What's Up program:
Segment 1
Segment 2

I've written often about the interviews conducted by Terry Lowry on his radio show, the What's Up show, broadcast on 12 radio stations from Houston to Chattanooga to Pittsburgh. I'm pleased to announce that this pro-7th Amendment broadcast, by a noted social conservative and Christian broadcaster, is now also heard on Sirius satellite radio on Channel 131, Family Talk Radio. Now the entire nation can hear periodic reports on civil justice issues and a defense of the Founding Fathers' plan for open courtrooms for all types of cases, from medical malpractice and defective products to religious liberty, property rights and other personal rights. The interviews are also available for downloading from the What's Up home page.

Terry interviewed me for today's broadcast, and we discussed recent congressional action to assist property rights owners, victims of forced abortions, and American victims of Iranian terrorism by enabling their lawsuits. I noted the inconsistency between the protection by many Congressmen of those groups' 7th Amendment rights and the attacks by some of the same Congressmen on medical malpractice lawsuits. As I noted, the Founders built a civil justice system to enable Americans to have their civil suits heard before juries in all types of cases. The Founders didn't differentiate between lawsuits to protect property rights and medmal claims, and neither should Congress. See my post of January 25 on the reasons for Republicans and Tea Partiers to support open courtrooms for all.

You can download listen to the first interview segment here and to the second interview segment here.

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.

The Seventh Amendment provides that " [i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved... Accordingly, we must conclude that the Seventh Amendment provides a right to a jury trial where the copyright owner elects to recover statutory damages... The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. It has long been recognized that "by the law the jury are judges of the damages.'' Lord Townshend v. Hughes, 2 Mod. 150, 151, 86 Eng. Rep. 994, 994-995 (C.P. 1677). Thus in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935), the Court stated that "the common law rule as it existed at the time of the adoption of the Constitution'' was that "in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.''

So wrote Justice Clarence Thomas in his opinion for a unanimous Supreme Court, when it ruled in a 1998 copyright infringement case that the Seventh Amendment requires the right to a jury trial where the copyright owner elects to recover statutory damages. In Feltner v. Columbia Pictures Television, Inc., the Court overruled the Ninth Circuit Court of Appeals, which had affirmed a district court's ruling denying Feltner's motion for a jury trial. Justice Thomas' opinion included a discussion of the applicability of the Seventh Amendment to copyright infringement cases and, in effect, a terrific defense of the right to a civil jury trial and the role of local juries. Justice Thomas noted that even before adoption of the Constitution, in England and in the American colonies, "copyright suits for monetary damages were tried in courts of law, and thus before juries." And he wrote that the Copyright Act of 1790 didn't change that practice.

Ironically, the attorney asserting Mr. Feltner's Seventh Amendment rights was John Roberts, now the Chief Justice of the Supreme Court, and during oral argument before the Court, he eloquently noted the historical role and significance of civil jury rights enumerated under the Seventh Amendment:

In light of clear historical practice on both sides of the Atlantic prior to 1971, Feltner had a right under the Seventh Amendment to have a jury make that finding and others on which the award was based and determine the amount of damages to be imposed within the statutory limits.

The idea that... when Congress fixes the amount of the penalty it can therefore delegate that task to judges ignores the whole purpose of the Seventh Amendment.

The Seventh Amendment is to protect against judicial bias and corruption and overreaching and, while that's not implicated when Congress fixes the amount because Congress is doing that, the judge is just applying it, when you give that task to the judge the whole reason for having the Seventh Amendment comes into play...

As someone who has criticized the Roberts Court for decisions denying civil jury trials in a number of preemption and arbitration cases, I was surprised to learn of this defense of the Seventh Amendment by Justice Thomas. My thanks to Bob Peck of the Center for Constitutional Litigation in Washington for pointing it out. Now if only the Roberts Court would only take a realistic view of the practical and harmful impacts of federal preemption and forced arbitration clauses on our right to a civil jury trial.

Lawmakers who voted last year for an unconstitutional bill to crush states' and individual rights, by sharply limiting medical malpractice lawsuits, did a 180-degree turn on Tuesday, approving a federal bill to enable lawsuits against abusive eminent domain actions by local governments.

The House Judiciary Committee voted to approve H.R. 1433, titled The Private Property Rights Protection Act. Co-sponsored by a bipartisan group of Representatives including many Republicans the bill is aimed at stopping municipalities from condemning private property for private land development. The bill was inspired in part by the case of a group of homeowners in Long Beach, New Jersey, who successfully fought the city's efforts to take their homes and allow developers to make millions building upscale condos. Section 4 of the bill creates a private right of action to fight local eminent domain actions.

It's too bad the committee Republicans aren't as committed to protecing our lives from the impact of deadly medical errors by negligent health care personnel. Many of the Republicans voting for H.R. 1433 also voted last year to crush most medical malpractice lawsuits, as provided for in H.R. 5. That bill imposes caps on noneconomic damages, which would eliminate an incentive for lawsuits filed by the elderly and infirm. That bill would tell states how to manage their courtrooms and mandate a wage scale for the attoneys filing the cases, the only federally imposed wage scale approved by any set of Republicans.

It's ridiculously inconsistent for the Republican co-sponsors of H.R. 1433 to also co-sponsor H.R. 5. The two bills couldn't be more contradictory in intent, spirit, and basis in American Constitutional law. House Judciary Republicans should think twice before placing a higher value on property rights than on human life.

On Thursday, the Arkansas Supreme Court voiced its support for the unalienable right to a civil jury trial by striking down a section of the state tort reform law. In the medical malpractice case of Teresa Broussard v. St. Edward Mercy Medical Center, the court ruled that sections of the law establishing standards for medical witness testimony were an unconstitutional infringement on the court's authority to decide witness qualifications. Chief Justice Jim Hanna upheld the court's right to determine the constitutionality of a state medical malpractice law and protected the court's sole authority to determine witness qualifications. He also reiterated a section of Arkansas law stipulating that the trial court "always has the inherent authority to secure the fair trial rights of litigants before it."

It wasn't the first time the court voided part of the state "Civil Justice Reform Act of 2003" and protected the rights of plaintiffs. Late last year, the court ruled that the section of that law capping punitive damages was unconstitutional, and in 2009, ruled that sections of the law limiting evidence of medical costs and allowing defendants to reduce their liability by naming "non-parties at fault" were unconstitutional for the same reason.

Let's hope other state supreme courts follow the Arkansas court's lead in protecting the right to a civil jury trial, and then take it a step further by striking down all onerous limitations on the right to a jury trial for civil suits.

The Discovery Institute is a conservative think tank headquartered in Seattle, Washington, dedicated to "the reinvigoration of traditional Western principles and institutions and the worldview from which they issued." The Institute has a special focus, to emphasize "the role that science and technology play in our culture and how they can advance free markets, illuminate public policy and support the theistic foundations of the West."

The Institute is now highlighting a religious discrimination lawsuit brought by a former employee of NASA's Jet Propulsion Laboratory (JPL). David Coppedge was a 14-year veteran and the senior member of the JPL team that oversees computers for NASA's mission to send a satellite to Saturn, one of the most complicated in its history. He is also a fervent Christian and believer in the "intelligent design" theory of history, which contrasts with Darwin's theory of evolution, and he manages a website on creationism.

Over the course of a decade, Coppedge periodically discussed "intelligent design" with co-workers and offered them DVDs on the subject. Then, in March 2009, Coppedge's manager ordered him to stop "pushing religion," which resulted in an argument between the two, with Coppedge finally agreeing to halt such discussions. A month later, JPL suddenly demoted Coppedge and warned him that he had violated the ethics policy. Coppedge filed a discrimination suit against JPL in Los Angeles. JPL responded to the lawsuit by firing Coppedge. Mr. Coppedge is being defended by attorney William J. Becker Jr., who is supported by the Alliance Defense Fund, the outstanding group defending religious liberty across America.

On November 18, a Los Angeles County Superior Court judge ruled Friday that Mr. Coppedge is entitled to exercise his 7th Amendment right to a civil jury trial against the JPL. In an interview on the nationally syndicated 'What's Up' radio program, Discovery's legal affairs policy analyst, Joshua Youngkin, explained to host Terry Lowry the "very significant point" of the judge's ruling:

"The jury and not the judge will determine whether or not David Coppedge had his rights infringed. And that's a very important right that we all cherish."

As Terry Lowry pointed out, the right to a trial by jury was listed in the Declaration of Independence above the right to bear arms. Whether you believe in "intelligent design" or the Darwin theory of evolution is irrelevant. Every American is entitled to assert, before a local jury of peers, whether adverse employment actions were the result of religious discrimination. Americans who want to "tort-reform" away cases involving medical malpractice with damage caps and procedural hurdles rarely stop to think whether the tort reformers would then turn against other rights protected in the Bill of Rights.

You can listen to the pertinent portion of Terry Lowry's interview of Joshua Youngkin on the "What's Up" program by downloading this short podcast.

During a speech on November 11 at the national convention of the Federalist Society, Republican Senator Mike Lee of Utah discussed why he could not vote for the jobs bill proposed by Senate Republican leadership (he voted "present"), even though it included many economic growth proposals with which he agreed. The Senator made it clear that he would have trouble voting for any federal tort reform bill, because most such bills inherently override states' rights. Here is a transcript of the pertinent section of that speech:

I had a situation just yesterday in which members of my party put forward a proposal consisting of a lot of bills rolled together. I agreed with almost all of them. Almost all of them achieved some favorable policy objective. But there was one with which I fundamentally disagreed; not because it was bad policy, but because it was utterly reconcilable with principles of federalism to which I took an oath. There was one portion of this Republican jobs package that would have told state courts, applying state law, reviewing state causes of action, that they were subject to certain limits, all in the name of interstate commerce; all because these things, like everything else, have a substantial effect on interstate commerce. I wanted to vote for the bill. Were I a member of the state legislature in the State of Utah, I would have voted for that kind of tort reform. But I couldn't do it, because it's not within my power. It was painful not to be able to vote in favor of that bill, but sometimes we have to do painful things, even when they undercut our underlying policy interests. In other words, just as textualism and originalism need to be protected and preserved, they need to be followed religiously so that they don't come under fire, and correctly as I believe, as simple tools to bring about a conservative philosophical revolution of sorts, we in the political branches of government who are dyed-in-the-wool advocates of federalism need to stick to federalism. Federalism is the answer, not just because it leads to right results, but because it is the right result, and it is the law. (Emphasis mine.)

Senator Lee's comments were met with applause by the audience, who obviously recognized and approved of his steadfast allegiance to constitutional principles.

During questioning by the audience, Senator Lee conceded that Congress could enact "some medical malpractice reforms" for federal suits brought in federal courts under federal law, or if such a bill is tied to "the provision of medical services with federal funds." But the federal tort reform bills being pushed by the AMA and other medical groups are straightforward, head-on, bills to crush states' and individual rights in health care-related lawsuits. Personally, I don't foresee Republicans proposing a bill to limit Medicare or Medicaid recipients' right to civil litigation, because of the political backlash it would generate.

Senator Lee's courageous vote on that bill and his statement in his speech place him squarely among the many Republicans and Tea Party-side conservatives who have come to recognize the unconstitutionality of federal tort reform bills. That growing list includes Virginia Attorney General Ken Cuccinelli; constitutional law expert Rob Natelson of the Independence Institute; Professor Randy Barnett; Tea Party movement leaders Judson Phillips and Mark Meckler; and many others, including critics of the plaintiffs' bar, all of whom insist on upholding the Constitution and Bill of Rights over political objectives. They've found, as Rob Natelson has detailed in his new study, that the Founding Fathers clearly and specifically did not want state tort law and state courts pre-empted or overruled by Congress through federal tort reform.

You can watch Senator Lee's entire speech below; scroll to the 20-minute mark to hear him discuss this issue.

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 a year ago, I first posted an open bet with an offer to buy the winner the best dinner in Washington, DC. I've re-posted that twice, and want to renew the bet now, because no one has even tried to win the bet. Here it is:

If anyone shows me ONE, just ONE quote from any of the Founding Fathers that is pro-"tort reform," I'll buy you the best dinner in Washington, DC, with your choice of appetizer, entree, wine (2 glasses only, $50/bottle max) and dessert. After researching the Founders' quotes on the subject for months (see the links in the right sidebar on the home page), I'm supremely confident that I have nothing to fear. For purposes of this offer, I'm defining the term "Founding Fathers" based on a list at this website, which includes signers of the Declaration of Independence, the Constitution, and other notable figures from the founding of the United States.

I would value this dinner at roughly $200 but I'm not limiting the offer to that amount. Go ahead, make my day!

Tomorrow, the House Foreign Affairs Committee will hold a hearing titled, "Righting the Enduring Wrongs of the Holocaust: Insurance Accountability and Rail Justice," to examine the facts and circumstances underlying two bills. First, H.R. 890, the Holocaust Insurance Accountability Act, would allow Holocaust survivors to rely upon state laws so they can have their day in court. It also requires the European insurance companies to disclose Nazi-era insurance policy information, and establishes a federal right of action to recover proceeds due under the covered policies. Second, H.R. 1193, the Holocaust Rail Justice Act, would prevent the French national rail company SCNF from claiming foreign sovereign immunity in a class action law suit brought against them by Holocaust survivors. SNCF trains transported 76,000 individuals to concentration camps during the Holocaust.

A group of Holocaust survivors sued SNCF in 2001, arguing that the company knew of and should be liable for the horrid conditions Jews were forced to endure on their way to Nazi death camps. The company has argued in court that it is an arm of the French government and therefore immune from suit under the Foreign Sovereign Immunities Act, but the plaintiffs claim that it is a separate entity. The Supreme Court sided with SCNF and dismissed the lawsuit under the FSIA; H.R. 1193 would strip SCNF of any FSIA immunity and enable the plaintiffs to reinstate the case.

Both bills have broad bipartisan support. The committee chairman, Rep. Ileana Ros-Lehtinen (R-FL), is the original sponsor of H.R. 890 and a co-sponsor of H.R. 1193, and has always supported the 7th Amendment rights of Holocaust survivors. In 2010, while supporting the Holocaust Insurance Accountability Act, Rep. Ros-Lehtinen said, "Holocaust survivors, just like anyone else, should have the right to have their day in court to recover under their policies... It is not in the interests of the United States to deny survivors their legal rights." That's the kind of pro-7th Amendment sentiment we need more of in Congress.

This afternoon, the House Judiciary Committee is holding a hearing on ''The State of Religious Liberty in America.'' Among the witnesses will be Colby May, Director and Senior Counsel of the Washington office of the American Center for Law and Justice (ACLJ), one of the premier pro-religious liberty groups in America. Colby May goes to court all the time to protect religious liberty, taking advantage of the 7th Amendment rights protected by the Founding Fathers to enable Americans to exercise our faith without infringement by the federal or state governments. His testimony recognizes that, ''The courts and the judges that preside over them will largely determine the strength of America's religious liberties.'' And he is testifying about the recent instances in which courts have failed to protect our rights against a college administrator, such as has happened at the University of California in the Christian Legal Society v. Martinez case.

I hope Members and witnesses remember that to survive, religious liberty needs open courtrooms. Any measure to restrict the ability of Americans to file a lawsuit in court compromises our ability to defend our religious liberty. So, for instance, the Judiciary Committee's original bill to toughen sanctions against attorneys under the Federal Rules of Civil Procedure could have resulted in a nonprofit's or small-sized law firm's refusal to take on a religious liberty lawsuit because of potential attorney sanctions. That's why the committee added a rule of construction to exempt lawsuits over constitutional issues from application of the proposed sanctions. Similarly, the application of the Supreme Court's decisions in the Iqbal and Twombly cases could result in the dismissal of a religious liberty case that would otherwise proceed to the discovery, if the attorney can't provide the threshhold level of documentation needed to meet the stricter pleading standards enunciated by the Court in those cases. A plaintiff seeking to protect religious liberty rights against an overbearing college or business might find it difficult to meet the standards if witnesses to the behavior at issue are afraid to come forward without a subpoena.

The Founding Fathers didn't differentiate between lawsuits to protect constitutional rights and lawsuits for negligence; they designed the civil justice system for all causes. The "tort rerform" movement could continue to spark conflict with social conservatives over the access to civil justice, unless Americans tell Congress and state legislatures to keep courtroom doors opened.

I've discussed the inherent conflict between Islamic Shariah law and our Constitutional rights numerous times here. Last year, I assembled a panel on Capitol Hill of experts and a Congressman to address the threat of encroaching Shariah law in the U.S. Under strict Shariah, there are NO juries for civil or criminal law, and NO rules of criminal or civil procedure protecting the rights of the accused and allowing for pre-trial discovery. Women are relegated to an inferior status in a courtroom, as well as in all other aspects of a society governed by Shariah.

On October 17, the "What's Up" syndicated radio program, hosted by Terry Lowry and heard on 12 stations in 10 states, interviewed Karen Lugo, a nationally recognized expert on Shariah. I met Karen earlier this year and introduced her to Terry Lowry so he could better educate his audience on Shariah. In her professional career, she's Assistant Director of the Claremont Institute Center for Constitutional Jurisprudence, where she works on constitutional litigation, including eminent domain and city planning disputes, and the preparation of amicus briefs. She is also President of the Orange County, California, Lawyer Chapter of the Federalist Society.

Karen discussed the rapidly expanding number of Shariah enclaves in Europe, in which the Muslim residents don't want to be governed by the law of the country. This institutionalizes complete inferiority for women. and enables the growth of "shadow justice" communities, with 700 enclaves in France alone.

Under Shariah, divorce can be unilaterally pronounced by the husband, with the husband controlling asset distribution. Women cannot easily pursue marital rape or assault claims in a Shariah courtroom, which is run by an Imam under rules favoring the husband. Karen discussed the most serious dangers of Shariah: an arbitrary set of laws and regulations governing every aspect of society from domestic relations to international relations. Civil and criminal cases are decided by mullahs or clerics, not through the application of a "rule of law."

As I discussed on June 3, local judges in U.S. are accepting Shariah law in domestic relations and estate settlement cases in the name of judicial comity. Karen has participated in the effort to enact legislation in states to ensure that American law is applied in American courts, and a model act has been signed into law in four states.

You can download and listen to Terry Lowry's interview with Karen below, conducted in three segments:

Segment One
Segment Two
Segment Three

Professor Randy Barnett, co-counsel in the leading lawsuit case against ObamaCare and likely to argue the case before the Supreme Court, takes aim again at federal tort reform proposals in a post on "The Volokh Conspiracy," this time at the inclusion of S. 197 the "MCAP Act' tort reform bill, in the Senate GOP jobs plan released last Thursday. "Over the summer I criticized a House Republican medical malpractice reform as "fair-weather federalism" in this op-ed in the Washington Examiner: Tort reform and the GOP's fair-weather federalism. Now Senate Republicans are emulating their colleagues in the House by including medical malpractice reform as part of their new "jobs" bill. " I've quoted from that piece often here, most recently in my letter to the deficit reduction "supercommittee" considering cuts to future federal spending.

Professor Barnett approvingly quotes from Carrie Severino's post critical of S. 197 on NRO's "Bench Memos" today, and personally criticizes the Senate Republicans: "Yes, you read that right. Senate Republicans are claiming that Congress has power over the judiciary of the states because state courts are an activity that "affect[s] commerce."

He then adds, "With friends like these, constitutional federalism does not need enemies. Can we coin a new pejorative FINO: "Federalists in Name Only"? Oh well, I guess not. But the best thing that can be said about this proposal is that it won't become law."

Let's hope not. I am actually most concerned that pro-tort reformers among the House Republican leadership will ignore the Constitution, transform the Senate GOP plan into a House bill, and force their members into an up-or-down vote as a test of allegiance. Seventh and Tenth Amendment Advocates need to contact the Senate and House and tell them to drop this idea.

The new Senate GOP jobs plan released yesterday by Senators John McCain and Rand Paul might spur economic growth if enacted, but it has one enormous and extremely serious flaw. It explicitly includes a section titled, "Medical Malpractice Reform (S. 197 - The Medical Care Access Protection Act)," abbreviated as the "MCAP Act." That bill, introduced in January by Republican Senators, is very similar to H.R. 5, the House Republicans' bill to impose federal limits on health care-related lawsuits, about which I've written often here. That bill has been frozen in the House, thanks to the Constitutional and political objections of many House Republicans. By referring to S. 197, the Senate GOP jobs plan would enact many of the goals set forth in H.R. 5.

For starters, the introduction in the MCAP Act states that "health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce." So the Senate GOP would continue to accept the expansion of the reach of the Commerce Clause begun under Wickard v Filburn, the Supreme Court decision condemned by conservative legal experts such as Randy Barnett and Rob Natelson and by Tea Party-side politicians such as Sen. Paul. That expanded scope reached its most extreme in the enactment of ObamaCare. Professors Barnett, Natelson, and other conservative experts point out that neither "health care" nor "tort law" are among the enumerated powers delegated to the federal government in the Constitution, and that expansion of federal law into those areas violates the Ninth and Tenth Amendments to the Constitution.

The MCAP Act crushes each state's right to manage its own civil justice system with respect to any lawsuit related to health care (i.e., providers and insurance companies). It imposes, for the first time in American history, federal limits on certain damages to be awarded in a health care-related lawsuit filed in either federal or state court. It mandates a standard for the award of punitive damages in any health care-related lawsuit filed in any court in America. It establishes, in federal law, a rule to determine the proportionate fault of each party in any federal and state court hearing a health care-related lawsuit. In doing all this, the act, included in the Senate GOP jobs plan, forces a one-size fits-all legal system for these lawsuits on the states. It also abridges our right to a civil jury trial, protected in the Seventh Amendment to the Constitution and beloved by our Founding Fathers.

The MCAP Act explicitly limits an attorney's fees to a decreasing percentage, based on the increasing value of the amount awarded. Here's the scale set in the bill:

(1) 40% of the first $50,000 recovered in the lawsuit;

(2) 1/3 of the next $50,000 recovered;

(3) 25% of the next $500,000 recovered; and

(4) 15% of the amount of the recovery in excess of $600,000.

So the bill imposes federal wage controls on just one industry, lawyers who charge contingent fees, regardless of the amounts normally charged by an attorney in the normal course of his business. And the bill lets federal judges cut the contingent fees to be paid for any reason, with no real limit on a judge's authority. No other profession in America - certainly not the medical profession - face a federal law mandating a specific wage scale. That is outright communism. And the bill changes other legal standards and mandates them across every courtroom hearing any health care-related lawsuit in America.

The House equivalent of the MCAP Act was roundly condemned by Professors Barnett, Natelson, and other conservative legal experts, including two who are highly critical of trial lawyers. All stated that a federal law limiting health care-related lawsuits violates the Constitution and subsumes states' rights. Professor Barnett, one of the co-counsels in the anti-ObamaCare lawsuit which will probably be heard by the Supreme Court, called Republican backers of H.R. 5 "fair-weather federalists." The Senate GOP intentionally ignored their warnings and endorsed a sweeping takeover of state health care and tort law and state courtrooms, relying on the same excessive interpretation of the Commerce Clause relied upon by Democrats in enacting ObamaCare.

But it gets worse. This portion of the Senate GOP jobs plan not only grants special legal protection to one industry above all others, but it benefits those medical associations which have endorsed and heavily lobbied for the enactment and implementation of ObamaCare.

That's right: the Senate GOP caucus, including Rand Paul, is explicitly rewarding the AMA and those medical associations which were the co-conspirators in the enactment of ObamaCare, with its communist individual mandate to buy health insurance. Our Republican Senators are abandoning states' rights and our right to seek a civil jury trial to protect the doctors, hospitals, and insurance companies who pushed for ObamaCare with the promise of millions of forced patients. They get special legal protection that they don't deserve and benefiting no other industry or group in America.

We should be stunned, disappointed and angry that Senate Republicans, especially those Members supposedly pledging allegiance to the Tenth Amendment, trashed our rights and the Constitution to help ObamaCare's backers. We should demand that they abandon that section of the jobs plan and pledge that it will never become law.

I have an update on two cases about which I posted on September 27.

I was interviewed on the nationally syndicated "What's Up" radio program by host Terry Lowry about the action brought by the City of San Juan Capistrano, California, against Chuck and Stephanie Fromm for hosting a small home Bible study group in their home. During the interview, Terry and I discussed the centuries-old right, recognized now in the 7th Amendment to the Constitution, to sue the sovereign or Executive Branch to protect all of the God-given rights now protected in the Bill of Rights. "Tort reform" proponents who think that it's worth abridging our 7th Amendment right to benefit the business community ignore the fact that the Founding Fathers honored that right for cases involving religious liberty, property rights, and free speech, as well as for medical malpractice and products liability cases. You can download and listen to my interview.

Sen. Rand Paul announced that he'll hold a roundtable on Wednesday, Oct. 12, with "victims of the U.S. government's multi-pronged assault on private property rights." The list of victims includes Mike and Chantell Sackett of Idaho, who bought a plot of residential land to build a new home, only to be told by the EPA that their land was federal "wetlands." EPA refused to hear the Sacketts' appeals on the order, then challenged their constitutional right to file a lawsuit against EPA for injunctive relief. The Sacketts and their attorneys, the Pacific Legal Foundation, are taking their case to the Supreme Court this winter. I look forward to the roundtable and hope to see Sen. Paul start some legislative action to rein in EPA from squashing Americans' property rights. Here is the PLF's page on their website about the case.

Conservative legal expert Rob Natelson of the Independence Institute in Colorado, author of the book, The Original Constitution: What It Actually Said and Meant, was interviewed on October 6 on the nationally syndicated "What's Up" radio program, hosted by Terry Lowry. Rob Natelson was the first conservative legal scholar to forcefully argue that federally imposed limits on medical malpractice and other health care-related lawsuits are unconstitutional, back in April and again in May. Terry Lowry interviewed him about (1) the status of the anti-ObamaCare cases and the prospects for the Supreme Court to rule against the individual mandate, and (2) the unconstitutionality of federal tort reform laws. Natelson said that he expects the Supreme Court to hear the 11th Circuit case, and he put forth various scenarios for the Court's ultimate ruling (with no prediction). He added that Congress unconstitutionally stretched the Commerce Clause beyond all previous precedent in mandating the individual purchase of health insurance.

Natelson reiterated his opposition to federal tort reform laws. He said that this is another area where "the federal government simply has no business trying to impose one-size-fits-all on the entire country," that federal tort reform proposals dictating to federal and state courts are "extremely intrusive" and "pretty clearly unconstitutional."

You can download and listen to the entire interview.

The AMA and other medical groups have advised the Joint Congressional Committee on Deficit Reduction (the "supercommittee") that federally imposed limits on lawsuits over medical malpractice could save as much as $62 billion over ten years, citing the estimate provided last year by the Congressional Budget Office. Besides the fact that such limits are unconstitutional, but there are multiple deficiencies in the CBO estimate and reasons for the supercommittee to ignore that estimate.

First, as I wrote here on January 6, "The Congressional Budget Office has a long, inglorious history of large-scale, massive errors in its scoring of budget proposals." As economist Alan Reynolds warned years ago, the CBO not only has a lousy record of estimating ten-year budget deficits and projections of policy impacts, but it's missed often on just year-to-year projections. It's no wonder that House Majority Leader Eric Cantor accused the CBO of outright "budget gimmickry" in its calculations last year on the supposed "savings" that would result from ObamaCare, or that Cantor and House Speaker John Boehner criticized CBO for predicting that repealing ObamaCare would cost $145 billion.

Second, as attorney Brett Emison points out, CBO admitted last year that it did not "consider the effect of tort reform on patient health and medical outcomes. Remarkably, the CBO determined that 'many studies of malpractice costs do not examine health outcomes.'" As I wrote on January 14, implementing CBO's projection of "savings" of $54 billion could actually result in more deaths and injuries. CBO admitted in its estimate that limits on medmal lawsuits could "an additional 4,853 Americans killed every year by medical malpractice, or 48,250 Americans over the ten-year period CBO examines." And another 400,000 or more patients could be injured during the same 10 years.

Third, the CBO can't estimate the impact that sweeping limits on medmal lawsuits would have on federal health care costs paid for by Medicare, Medicaid, and the Veterans Administration. If someone is brain-damaged, mutilated or rendered paraplegic as a result of medical negligence, but cannot obtain compensation from the culpable party through the tort system, he or she may be forced to turn to those programs for compensation. None of these increased Medicaid or VA hospital costs are considered in the CBO estimate. Whenever there is a successful medical malpractice lawsuit involving an elderly or poor person, Medicare and Medicaid can claim either an interest in whatever the patient recovers, so the victim reimburses the government for some of the health care expenditures. Without the lawsuit, Medicare and Medicaid will lose funds that the government would otherwise be able to recoup. And none of these lost funds are considered by the CBO.

Fourth, CBO guesstimated that imposing federal lawsuit limits would result in a reduction in a drop in liability insurance premiums, but provided no raw data, explanations, or sources to back up its estimate. Numerous states have already imposed caps on medmal lawsuit damages, with no impact on personal health insurance premiums. CBO makes the same assumption that ObamaCare proponents made, that Uncle Sam can wave a wand and magically force health insurance premiums to drop. How's that one working out for us?

Anyone betting on federal lawsuit limits to balance the budget is wasting their time. Not only is it unconstitutional, but it won't raise real money and solve our budget problems.

A federal judge has ordered the EPA to pay $1.7 million to Hubert P. Vidrine for malicious prosecution. The conservative trial lawyers at the Washington Legal Foundation represented Mr. Vidrine in the lawsuit. You won't believe what the EPA tried to do to him (quoting WLF):

"The just-resolved case started in 1996 when the Environmental Protection Agency (EPA) ordered its SWAT-like special operations team (equipped with M-16 rifles and police dogs) to raid the Canal Refinery, Mr. Vidrine's workplace. The raid led to a criminal investigation against Mr. Vidrine for allegedly unlawful storage and disposal of hazardous wastes under the Resource Conservation and Recovery Act (RCRA). When asked to prove its case, the EPA turned to its star witness, Mike Franklin, who claimed he had taken samples of the allegedly hazardous material and had conducted tests proving Mr. Vidrine's guilt. The only problem is that neither Mr. Franklin nor the EPA could produce these tests.

Whoops.

With the credibility of the case already crumbling, it then came to light that Mr. Franklin suffered an addiction to cocaine, an addiction that often results in psychosis: loss of contact with reality, including false beliefs. Determined to press on, the EPA tried to prove its case by extracting truthful information from Mr. Franklin through hypnosis. But this too failed.

Seemingly oblivious to the evidence against his case, government prosecutor Keith Phillips pressed forward with such zeal that some people began to ask questions. These questions produced interesting answers: First, it was discovered that Phillips sought to prolong the case against Vidrine so he could continue his affair with the FBI agent assigned to the case (Ekko Barnhill) instead of returning home to his wife in Dallas. Second, Philips harbored a personal vendetta against Vidrine and seemingly wanted to do everything possible to make his life miserable. These motives fall a bit short of the 'pursuit of justice' that is supposed to guide EPA cases."

There's as clear a case of government abuse of process and violation of civil rights as you can find. And it's a great example of one of the reasons the Founding Fathers designed the civil justice system: to protect US from a power-hungry Executive Branch. The next time someone asks you for one good reason why we need civil suits and trial lawyers, remind them of this case.

Today I read an outstanding post on the Injury Board Blog Network by Brett Emison of the Langdon & Emison law firm in Missouri, about the numerous state Supreme Courts which have struck down attempts to restrict the right to trial by jury as infringements on fundamental constitutional rights. The Injury Board's Tom Young and Brett Emison gave me permission to re-post it here. Here are the highlights, and I urge you to read the entire post:

Wisconsin: In 2005, the Supreme Court of Wisconsin held the state's $350,000 non-economic damages cap was an unconstitutional violation of the equal protection clause of Wisconsin's constitution. Ferndon v. Wisconsin Patient's Compensation Fund, 701 N.W.2d 440 (Wisc. 2005)...

Ultimately the Court ruled Wisconsin's cap was "arbitrary and create[d] an undue hardship on a small unfortunate group of plaintiffs." Id. at 466. There was no rational basis for this brand of "tort reform". The non-economic damage cap was not rationally related to any of the following:

-- Non-economic cap not rationally related to compensating victims fairly

-- Non-economic cap not rationally related to lowering medical malpractice insurance premiums

-- Non-economic cap not rationally related to maintaining the Wisconsin Patient's Compensation Fund

--Non-economic cap not rationally related to lowering overall health care costs for consumers

-- Non-economic cap not rationally related to ensuring quality health care

Georgia: Georgia passed its own "tort reform" legislation in 2005, also enacting a $350,000 non-economic damage cap. In a unanimous decision the Supreme Court of Georgia ruled that the "tort reform" legislation violated the constitutional right to trial by jury...

The Georgia Court found that the non-economic cap unconstitutionally infringed on the right to trial by jury because the cap arbitrarily disregards the jury's findings and undermines the jury's basic function. Atlanta Oculoplastic Surgery v. Nestlehutt, 691 S.E.2d 218, 223 (Ga. 2010). Moreover, the fact that the cap permits full recovery up to $350,000 cannot save the "tort reform" from constitutional attack...

The Georgia decision confirms that you can't violate the constitution "just a little". You either violate the constitution or you do not. An arbitrary reduction of the jury's award, no matter how small or what the amount, is an unconstitutional encroachment on the right to trial by jury.

Illinois: In 2010, the Supreme Court of Illinois struck down the Illinois non-economic damage cap as an unconstitutional violation of separation of powers. Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010)... The separation of powers clause prohibits one branch of government from exercising powers belonging to another. The Court found that the cap duly encroached on the judiciary's "sphere of authority" and "impede[d] the courts int he performance of their functions." Id. at 909, 912.

Washington: In 2006, the Washington legislature enacted "tort reform" which required plaintiffs in medical malpractice cases to provide 90 days' notice of the plaintiff's intention to file a lawsuit. The Washington Supreme Court found the "tort reform" law to be an unconstitutional violation of separation of powers. Waples v. Yi, 234 P.3d 187, 195 (Wash. 2010).

West Virginia: Though West Virginia's Supreme Court upheld a $500,000 non-economic damage cap earlier this year, a powerful dissent by Judge Wilson illustrates why the Court got it wrong.

"Not affecting fundamental rights? The right to a trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial?

The Court's degrading of the right of a jury trial in a civil case in West Virginia is in square conflict with the United States Constitution. The phrases used in the United States Constitution and the West Virginia Constitution for granting the right to a civil jury trial are almost identical. For our Supreme Court to suggest that the right to a jury trial in West Virginia is not as great as that in another state that uses the phrase 'the right to trial by jury shall remain inviolate' in its constitution makes no sense.

This case is about what has already happened to the malpractice victims in the three West Virginia cases that challenged the constitutionality of the malpractice cap. These are real people who deserved more when they pursued justice in our West Virginia courts."

Caps on damages and other hurdles effectively shut the courthouse doors for many and fundamentally restricts their constitutional right to trial. The 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why it's not just democrats and trial lawyers standing up for this fundamental freedom, but also constitutional conservatives who oppose attacks on 7th Amendment rights through tort reform.

"Tort reform" protects and rewards negligent actors and makes us all less safe. It also undermines our most important constitutional safeguard. As the Georgia Supreme Court said, "tort reform" "clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function."

What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

Tort "reforms" also have the perverse effect of bloating federal government and penalizing taxpayers through government funded bailouts of negligent actors. Imagine someone is paralyzed by a defective product, a negligent doctor or a drunk driver. Tort reform either excludes the plaintiff completely from the court system or limits the recovery to only a portion of the plaintiff's actual life care needs. The bad actor is relieved of personal (or corporate responsibility) and the burdens of the bad actions are borne by taxpayers in the form of Medicare, Medicaid and disability payments.

I constantly remind Republicans and Tea Partiers that the same civil justice system used by trial lawyers to file medical malpractice and product liability cases is also utilized by conservative trial lawyers to file civil suits to protect property rights, religious liberty, gun owners' rights, and parental rights from government at all levels. Here are two more cases that illustrate the need to protect our constitutional rights.

1. Who would have believed that a simple home construction project could turn into a Supreme Court case? In 2005, Mike and Chantell Sackett bought a small piece of land in a residential subdivision in Idaho, so they could build their own house, and they obtained all the permits required under the law. But as they began building the house, the EPA suddenly informed them, without prior warning, that their land is "wetlands" under federal law, and ordered the Sacketts to return the state of the property to EPA's liking or suffer $37,500 per day in fines. The Sacketts hired experts on their own dime who certified that their parcel is not wetland, but the EPA didn't care. When the Sacketts filed suit in federal court against EPA, the EPA challenged their constitutional right to bring such a suit, alleging they would first have to restore their property, seek a "permit" (which costs twelve times the purchase price of the land), and then file a lawsuit when the permit was denied.

The federal district court and Ninth Circuit Court of Appeals agreed with EPA, but the Supreme Court has granted the cert petition filed by the Sacketts' attorneys at the conservative Pacific Legal Foundation. The issues are whether landowners can sue EPA in court immediately after receiving an EPA compliance order issued under the Clean Water Act; and if not, whether that preclusion violates the Due Process Clause of the Constitution? In the brief filed this month with the Court, PLJ framed the situations as follows:

The Sacketts have never been offered any opportunity for meaningful review of the compliance order. EPA has no administrative process the exhaustion of which will produce an action reviewable in court. The Clean Water Act's compliance order enforcement provisions do not provide meaningful review, either. The Sacketts cannot initiate such review, but instead are left to the mercy and whim of EPA, never certain whether or when the agency will bring an enforcement action. Such review is available, if at all, only by ignoring or violating the compliance order and thereby incurring the potential for sanctions of up to $37,500 per day. Even if the Sacketts comply with the order, they still cannot seek judicial review.

The Founding Fathers must be rolling over in their grave. This is bureaucratic dictatorship of the type that Jefferson, Madison, Adams, and other patriots fought with their "lives, fortunes, and sacred honor."

2. Imagine that you are hosting some friends once a week at your house to discuss passages from the Old or New Testament or the Koran, when the city government accuses you of improperly running a church, fining you $300 and demanding that you get a city permit before inviting your friends back. Think you would sue the city? That's what happened to Chuck and Stephanie Fromm in the City of San Juan Capistrano, California. A city official told Mr. Fromm that he needed a permit to hold regular gatherings of more than three people, and the Fromms would be fined $500 per meeting if they didn't get one! The Fromms are appealing the city's decision to the California Superior Court in Orange County, with the help of the Pacific Justice Institute (no relation to the Pacific Legal Foundation cited above).

Only in a PC-crazy environment could a group of four people be labeled a "church," just because they're studying their scripture. And it's especially ironic that this case occurred in a city founded as a religious mission!

Civil suits and trial lawyers are just as critical to protect social conservative causes as they are claims based in economics. Any effort to limit access to the civil justice system compromises everyone's right to seek justice and prevent governmental bodies from imposing their will over our lives.

On September 12, Texas Governor Rick Perry called for federal tort reform during the GOP Presidential debate. "You want to talk about some powerful job creation, tell the trial lawyers to get out of your state and to quit costing businessmen and women. That's what needs to happen in the states. and it's also what needs to happen at the federal level, passing federal tort reform at those federal levels." As I wrote on September 16, Gov. Perry now stands against some of the most respected Tea Party-side and conservative legal experts in America, who have written that a federal tort reform law is as unconstitutional as ObamaCare, and for the same reasons. But Gov. Perry also ignored two of the leading proponents of tort reform, who conceded months ago that a Texas-style national limit on medical malpractice lawsuits is clearly unconstitutional.

Walter Olson of the Cato Institute has been dubbed the "intellectual guru of tort reform." He was previously a senior fellow at the Manhattan Institute, and his writing appears regularly in all of the major newspapers and networks. But on May 24, Mr. Olson wrote that conservative and anti-ObamaCare Professor Randy Barnett of the Georgetown University law Center was right in stating that tort law is strictly a state power and not subject to federal oversight. A short segment of his concession post: "Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems. Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government's constitutionally prescribed powers is it acting? Even if it can identify such authority, it should also ask: is it a wise idea--consistent with what one might call a prudential federalism--to gather yet more power in Washington at the expense of the states? Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court's very expansive "substantial effects" doctrine..."

Ted Frank, Adjunct Fellow with the Center for Legal Policy at the Manhattan Institute, is described by the Wall Street Journal as a "leading tort-reform advocate." He's also the Editor of the pro-tort reform Point of Law blog; president of the Center for Class Action Fairness; has written for law reviews and numerous media outlets; and has testified before Congress multiple times. Mr. Frank is one of the chief theorists and spokepersons for the pro-tort reform movement. But also on May 24, Ted Frank conceded that Prof. Barnett and another conservative and anti-ObamaCare Professor, Ilya Somin of the George Mason University School of Law, were correct in their criticism of a federal tort reform law. Mr. Frank's quote: "It's easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care. It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform."

So the "intellectual guru of tort reform" says that a national, one-size-fits-all law killing medmal lawsuits would have "serious federalism problems," while "a leading tort-reform advocate" says a Texas-style federal medmal law is "impermissible." Between them and the five conservative legal experts, such as Randy Barnett, it looks like the case is closed.

Is Rick Perry listening? Maybe we'll find out during the next GOP Presidential debate on Thursday. Personally, I'm not optimistic, since he ignored the writings of the five conservative legal experts and two pro-tort reform experts on the Internet months before he went nuclear on the subject.

It's remarkable that Texas Governor Rick Perry would call for federal tort reform and ignore the writings of so many highly respected conservative and Tea Party-side constitutional experts. Instead, he's sided with the pro-tort reform community in its reliance on constitutional theory that enables the federal government to trample on individual and states' rights in health care and tort law, issues which the Founding Fathers clearly reserved for the states alone. Ironically, his "federal tort reform" would reward members of health care associations, such as the AMA, AHIP, and the health insurance industry, which were the co-conspirators in the enactment of the Affordable Care Act, a.k.a. ObamaCare, which he promises to repeal. Let's review the legal theories in controversy here and how conservative legal experts have condemned federal tort reform this year.

At the start of the new Congress, pro-tort reform Republicans, led by a "Doctors Caucus" seeking special protection for their industry, introduced a bill, H.R. 5, a bill to impose stringent limits on the damages that victims of medical malpractice and other health care negligence can seek. The limits would apply to all lawsuits in the U.S. against doctors, hospitals, drug and device companies, nursing homes, and the insurance industry. The bill preempts all state laws that provide additional protections to patients.

Rob Natelson, formerly of the University of Montana Law School, is now Senior Fellow at the Independence Institute, a Tea Party-side legal expert and a former Republican candidate in Montana. He was the first expert from "the right side" to criticize H.R. 5, in a letter to Congress in April, and then again in an op-ed piece on May 9. Here are some excerpts from each:

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. On the contrary, during the debates over ratification of the Constitution, leading Founders specifically represented that the subject-matter of H.R. 5 was outside federal enumerated powers and reserved to the states...

Even before the Ninth and Tenth Amendments reinforced the limits, Founders, such as Madison, Hamilton, and James Wilson, among others, represented that tort law and civil justice specifically were to be state concerns. True, Congress could erect and regulate federal courts with diversity jurisdiction, but only because of separate constitutional grants, not as a result of the Commerce Power. Indeed, I have never seen any evidence that the power to erect and regulate federal courts included authority to alter prevailing tort law even in those courts, and certainly not in state courts.

To the extent that H.R. 5 regulates health care in addition to civil justice, it is also outside the Commerce Clause. No less an authority than Chief Justice John Marshall said so, in Gibbons v. Ogden, a decision celebrated as an expansive interpretation of the Commerce Power. In that case, Marshall (himself formerly a leading Ratifier) stated that "health laws of every description"--presumably including laws governing health care litigation--were reserved exclusively to the states...

Up till now the state courts have been one of the few areas of life relatively untouched by federal meddling. That is as it was supposed to be: State court systems are central to state sovereignty. Moreover, the Constitution reserves most issues of civil and criminal justice to the exclusive authority of the states, rather than the federal government. When the Constitution was being considered, its supporters said explicitly that state court systems are constitutionally out-of-bounds for Congress...

HR 5 is advertised as addressing abusive lawsuits against physicians, but it goes far beyond that. It would regulate in detail just about every American lawsuit that has anything to do with health care: What an injured party can allege in his or her initial filing, the damages he or she can recover, how damages are disbursed, burdens of proof, what the jury may and may not consider, which state laws survive and which don't. HR 5 even directs state judges to conceal pertinent information from the jury. It's not certain the Supreme Court would uphold all of this bill. But it is certainly a flagrant invasion of local control. Here's a real irony: The Republicans supporting HR 5 justify it by parroting exactly the same ridiculous "Commerce Clause" claims the President uses to justify ObamaCare.

Partially in response to the Rob Natelson's April letter to Congress, the pro-tort reform side trotted out a corporate lawyer to write a defense of H.R. 5. The paper relies on what has become, since the early 1940s, the standard basis cited for all encroachments by the federal government into business decisions. Quoting from the ATRA paper:

Since the 1942 case of Wickard v. Filburn, involving Congress's power to regulate the production of homegrown wheat, the United States Supreme Court has interpreted the Commerce Clause quite broadly with respect to the regulation of economic activity... The nonpartisan Congressional Research Service (CRS) has closely analyzed judicial precedent and concluded that 'there seems little doubt that tort reform legislation, in general, would be within Congress's commerce power.' Under its power to regulate interstate commerce, Congress may 'make such legislation applicable to intrastate torts, because tort suits generally affect interstate commerce.' With respect to the HEALTH Act, CRS has specifically recognized that '[m]edical malpractice liability is governed by state law, but Congress has the power, under the Commerce Clause of the United States Constitution (Art. I, § 8, cl. 3) to regulate it.' Healthcare is truly national in scope and fundamental to interstate commerce... By placing an upper limit on subjective and otherwise limitless pain and suffering damages against doctors and other medical professionals, Congress can promote a more cost-effective healthcare delivery system... H.R. 5 is consistent with the Tenth Amendment, which provides that '[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Other conservative and Tea Party-side legal experts revolted openly against this paper and H.R. 5, and chastised House Republicans for condemning ObamaCare in one speech and pushing the expansion of fedral authority over health care and states' rights in another.

Professor Randy Barnett of Georgetown University Law Center, the conservative legal superstar involved in the multistate lawsuit against ObamaCare in federal court, wrote in an op-ed on May 21: "But tort law -- the body of rules by which persons seek damages for injuries to their person and property -- has always been regulated by states, not the federal government. Tort law is at the heart of what is called the "police power" of states... Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits. Constitutional law professors have long cynically ridiculed a 'fair-weather federalism' that is abandoned whenever it is inconvenient to someone's policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers 'reserved to the states' as affirmed by the Tenth Amendment, they will prove my colleagues right."

Prof. Barnett was interviewed on the nationally syndicated What's Up radio program by host Terry Lowry about how H.R. 5 violates the limitations on the powers granted to the federal government in the Constitution and Bill of Rights. You can listen to the first segment of his interview here and listen to the second segment of the interview here (MP3 audio files). Starting at 2:32 of the second segment, he said, "Congress doesn't really have the authority to do tort reform legislation because that has historically been within the province of the states..." He proceeded to reiterate the other points of his op-ed, especially that federal tort reform legislation is an abuse of the Commerce Clause.

Prof. Ilya Somin of the George Mason University School of Law, another conservative legal expert who co-authored amicus briefs in anti-ObamaCare court cases, concurred with Prof. Barnett in a May 23 blog post. "Hopefully, at least some Republican conservatives will begin to see that you can't advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other. In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states' ability to regulate conduct outside their borders." The previous post to which he referred was in February in which he wrote, "In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any 'activity.' Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward."

Yet another respected conservative professor, Jonathan Adler of the Case Western Reserve School of Law, wrote a very brief comment against H.R. 5 in support of an attack from an unusual source, an pro-tort reform advocate, about which I will write in a separate post. Prof. Adler wrote that, "support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme." Professor Adler is a frequent contributor to the events and publications of the Federalist Society, considered the premier conservative-side legal organization in the country.

Professor John Baker, a Distinguished Scholar at Catholic University Law School, Professor Emeritus at LSU Law School, and frequent presenter at Federalist Society events, wrote on the Daily Caller website on June 22 that H.R. 5 and ObamaCare are two peas from the same post-Willard Commerce Clause pod:

To justify their efforts to nationalize medical malpractice law, House Republicans are stretching the Supreme Court's New Deal Commerce Clause jurisprudence almost as far as Democrats did for Obamacare. Both national medical malpractice reform and Obamacare are radically at odds with our constitutional structure of federalism, though Obamacare is especially radical because it represents the first time that the federal government has required people to purchase a product (health insurance).

What compels House Republican leaders to ignore the Constitution? Nationalizing medical malpractice law would not necessarily protect hometown doctors. Some states currently offer doctors better protection, without being subjected to federal bureaucrats. Other states would do so if doctors worked their own state legislatures, rather than relying on a Washington lobby, the American Medical Association.

The explanation for the eagerness of House Republican leaders to nationalize even more of the economy is a simple reality: both Congressional Democrats and Congressional Republicans like the New Deal interpretation of the Commerce Clause, which allows them to expand national power. They would just do so for different purposes.

Prof. Baker went further, warning Republicans like Rick Perry that enacting a federal tort reform bill like H.R. 5 could boost the chances that the Supreme Court would rule favorably on the Affordable Care Act. "Seeing that Republicans are as willing as Democrats to nationalize different parts of healthcare, the justices might conclude that there is a Congressional consensus to nationalize all of healthcare. Since justices tend to defer to Congress, that might be enough to tip the scales in Obamacare's favor."

Is that really what Rick Perry wants? To boost the chances of victory for ObamaCare?

Rob Natelson returned to the subjects of federal tort reform and the Commerce Clause on July 18 in the course of a discussion on Chief Justice John Marshall and his signature case, Gibbons v. Ogden, on the Tenth Amendment Center website:

"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.

That makes FIVE conservative legal experts, bright shining stars in the conservative legal universe, standing against the concept of federal tort reform. Two other legal experts wrote about the unconstitutionality of H.R. 5, but they deserve special discussion in another post, because they're pro-tort reform advocates who recognized the unconstitutionality of H.R. 5.

I've written often here, most recently on June 3, about the dangers of allowing Muslim communities to apply Shariah law, due to its denial of basic constitutional rights, including the right to a jury trial in civil and criminal cases. Several developments are worthy of mention.

Shariah law is on the march in Europe. A pro-Shariah group in Belgium has opened a Shariah court in Antwerp for adjudicating marital disputes and inheritance issues "in accordane with Islamic law," according to an English translation of a news site in Belgium. And in Denmark, a counter-terrorism expert warns that "Denmark, as we know it, can be destroyed in 10-15 years" as Shariah law becomes more dominant in Muslim neighborhoods:

"'Sharia law already operates in several neighborhoods. In Nørrebro there are some places where you have a parallel society, where religious dogmas run things next to the Danish,' integration consultant and anti-terrorism expert Mohammad Rafiq tells Ekstra Bladet. 'This way we'll have many neighborhoods where you as a Dane and democrat won't have any chance to object,' says Rafiq, who has visited many of the countries extremist neighborhoods."

Meanwhile, in the U.S. the 10th Circuit Court of Appeals will review a lower court ruling that invalidated an Oklahoma ballot initiative to ban the use of Shariah law in state and local courts. The judges hear the oral arguments today in the case of Awad vs. Ziriax et al. Last November, a federal judge ruled that there was a "substantial likelihood" that the ban violates the Establishment Clause. The Oklahoma Attorney General's office disagreed with the ruling and filed an amicus brief with the 10th Circuit. An amicus brief in favor of the Oklahoma law and filed last year by a conservative legal group notes that Shariah law allows for the mistreatment of women through "'underage and forced marriage ... honor killing ... female genital mutilation ... polygamy ... and domestic abuse ... including marital rape ...' -- practices existing in Islamic nations governed by Sharia law that deprive persons of their lives, liberties, and pursuit of happiness." Hopefully, the 10th Circuit will agree with the right of the people of Oklahoma to define the body of law applicable in their local courts.

The first GOP Presidential debate since Texas Governor Rick Perry officially joined the race will be held tomorrow night. Prior to his announcement, I asked whether he would truly be a 10th Amendment advocate, a claim he makes constantly, or whether he would flip-flop on such issues as the states' right to run their own courtrooms, which would deprive Americans of our 7th Amendment right to a jury trial for civil suits. I have some questions which I hope will be posed to Gov. Perry and other GOP candidates tomorrow night about their support for all of our constitutional rights:

7th and 10th Amendment rights or "fair-weather federalism"?

Governor Perry, you often assert that the federal government should stop encroaching on states' rights, accusing Washington of intruding "upon the rights of the states and individuals to make decisions about our own healthcare, our businesses, our money,..." But you've flip-flopped on your stand on a federal marriage amendment to the Constitution - you were against it until you were for it - and on the need for a pro-life amendment to end abortion on demand. And your position on "tort reform" is inconsistent with that of a 10th Amendment purist. Specifically, you've proposed an amorphous concept of "civil justice reform," citing the changes in Texas law you backed to sharply limit medical malpractice lawsuits and to force the losing parties in civil suits to pay all court costs. And in your book, "Fed Up," you wrote that Republicans are for "ending frivolous lawsuits through real tort reform." However, seven experts in constitutional law, including the leading anti-ObamaCare legal expert in the federal court cases, say that federal "tort reform" is not an enumerated power of the federal government and is unconstitutional. That expert, Professor Randy Barnett, accuses Republicans of being "fair-weather federalists" in pursuit of federal "tort reform," and asserts that tort law is the exclusive province of the states. Famous and respected conservatives and Tea Party leaders agree with that judgment, such as fellow candidate Ron Paul; Sen. Tom Coburn; the co-founder of the Tea Party Patriots, Mark Meckler; and the former President of the socially conservative Family Research Council, Ken Connor. So will you guarantee now that as President, you will not support any sweeping federal "tort reform" bill which would override the rights of the states under the 10th Amendment to run their own courtrooms, and that you'll veto any such bill enacted by Congress?

Question for all candidates: Since many of you identify yourselves closely with the protection of individual rights enumerated in the Bill of Rights, what is your understanding of the 7th Amendment to the Constitution, which states that "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." James Madison, principal author of the Bill of Rights, called the right to a jury trial for civil suits "as essential in securing the liberty of the people as any of the pre-eminent rights of nature," a sentiment joined in by Thomas Jefferson, John Adams, and other Founding Fathers. How would you protect that right in federal and state courts? Is the 7th Amendment a "lesser amendment" in your mind than the 2d Amendment right to bear arms, and if so, why?

Bill of Rights & American law or Sharia?

For all candidates, but starting with Gov. Perry: Gov. Perry, some conservative experts and commentators have expressed concern about your relationships with pro-Islamist elements such as the Aga Khan and its associated entities, especially the Aga Khan Foundation, over its involvement in the development of a "Muslim Histories and Cultures Program" in Texas schools. Longtime critics of radical Islam such as Robert Spencer and Pamela Geller have reviewed the course curriculum and questioned whether you are allowing the Aga Khan Foundation to present "a fantasy benign Islam, with all the violent and oppressive bits cut out." Strict Islamic Sharia doesn't protect the Constitutional rights of women as equal to men, and doesn't recognize basic Constitutional rights such as the right to a jury trial for criminal and civil cases. But a recent study by a conservative group warns that local courts are applying Sharia, not the U.S. Constitution and American law. In recent years, anti-Sharia activists have promoted a movement to ensure that American courts enforce only American laws and not those enforced elsewhere, such as Islamic Sharia law. Given your declared allegience to the Bill of Rights, will you endorse that movement, and propose measures to ensure that Sharia law is excluded from contemplation in civil and criminal cases in all courts in the U.S.? Will all GOP candidates also endorse that movement?

"Constitutional conservative" or "crony capitalist?"

Question for Rep. Michele Bachmann, in part based on the previous question for Gov. Perry: You describe yourself as a "Constitutional conservative" and, like Gov. Perry, say that you're for defending states' rights. You are recently quoted saying that "the current government is acting outside the bounds of the Constitution. Probably the most obvious would be this Obamacare and the individual mandate that is unconstitutional and is currently contained in Obamacare." But you are a co-sponsor of the most sweeping federal "tort reform" bill introduced this year in Congress, a bill which would effectively immunize health care and pharmaceutical companies which have contributed tens of thousands of dollars to your campaigns. Considering the conservative opposition to any federal "tort reform" bill on states' rights grounds, why shouldn't voters consider your declaration just another position by a "crony capitalist" who stands on the Constitution in order to help backers in the business community?

Religious freedom & right of conscience or abortion rights?

Question for all candidates: Last year, a federal court of appeals ruled that a pro-life Catholic nurse didn't have the right to sue the hospital where she worked and that forced her to participate in an abortion. The court ignored the nurse's Constitutional rights to freely exercise her religion and act in accordance with her conscience, rights explicitly recognized for medical personnel in federal and state law. This year, the Obama Administration rescinded a Bush-era regulation that provided conscience protections for medical workers so they could refuse to administer treatments they find morally objectionable. Will each of you commit to restoring the rights of medical workers to sue health care employers when the employer forces the employee to engage in morally objectionable treatments?

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.

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.

On March 23 and on March 18, I discussed the real causes of deadly medical errors and some of the myths surrounding medical malpractice claims, including facts about the impact of capping damage awards in medical malpractice lawsuits.

In 2003, Texans were promised that if they capped noneconomic damages in medical malpractice awards, they would eventually see a reduction in their total health care costs, and they bought the claim. Texas enacted one of the toughest bills in the country capping medmal award damages. Almost eight years later, that hasn't happened at all.

One study of data on Medicare spending in Texas for years following the enactment of the law shows the following: "Not only has per person Medicare spending in Texas continued to exceed the national average, the data also show that such spending rose at nearly twice the national average (15.1% versus 8.7%) in the four years since the medical liability reform legislation was passed. Furthermore, before such 'cost-saving' legislation went into effect, per person Medicare reimbursement rates in Texas were the tenth highest in the nation. In 2007, reimbursement rates in Texas had risen to the second highest. None of this is resounding evidence that tort reform has been successful in controlling health care costs."

And a new review by the Dallas Morning News shows that since the medmal law was enacted in 2003, family and single health insurance premiums rose by 51 and 45 percent, respectively, roughly equal to the increase nationwide. Even the President of the Texas Medical Association, the doctors' lobby in Texas, admitted, "(W)e haven't seen the overall cost of medical care go down."

The Dallas Morning News review showed that medical malpractice insurance premiums for doctors in Texas have decreased since the law was enacted. But that's been a nationwide phenomenon, according to Congressional testimony by Joanne Doroshow of the Center for Justice and Democracy in January (see the bottom of page 11). Moreover, as she pointed out, "Premiums have dropped irrespective of whether 'tort reforms' were enacted in any particular state, such as Texas. States with little or no restrictions on patients' legal rights have experienced the same level of liability insurance rate changes as those states that enacted severe restrictions on patients' rights." So the drop in Texas medmal insurance premiums isn't necessarily attributable to the enactment of the medmal law. And in any event, the patients haven't seen any benefit from that reduction. My thanks go to Mary Alice McLarty of the McLarty Pope law firm in Dallas for sending me the DMN chart.

Over 40 states have already enacted some form of state "tort reform," many with the promise of lower costs to consumers. I would like to read ANY reliable study that finds that ANY state law capping medical malpractice awards was followed by a drop in health care costs in that state, but I doubt that any such study exists.

Longtime readers know of my opposition to ObamaCare on constitutional grounds. Proponents of that law also promised lower health care costs, and that hasn't happened either (my insurance premiums are up almost 30% since it was enacted). The "medmal reform" leaders are the same medical groups who salivated at the thought of millions of new customers, forced to buy insurance by ObamaCare, and that raises two questions: (1) Why are Republican state legislators working so hard this year to reward the co-conspirators in the enactment of ObamaCare, a law that so many state AGs are suing to overturn in federal court?! (2) Why should we believe those medical groups claiming lower health care costs from "medmal reform" when they misled us about ObamaCare's benefits and shoved the individual mandate down our throats? I don't get it!!

Recently the West Virginia Supreme Court ruled that a new state law imposing caps on noneconomic damages in medical malpractice awards was constitutional, ignoring the fact that the West Virginia Constitution protects the right to a jury trial for civil suits with identical language as the Seventh Amendment to the U.S. Constitution. A visiting circuit court judge who assisted the Supreme Court in that case dissented strongly, with a vigorous and detailed assertion that damage caps effectively abridge the constitutional rights of West Virginia citizens. Here are excerpts from Circuit Judge Ronald Wilson's 12-page dissenting opinion, released Friday afternoon and sent to me by Joseph Rice and Victoria Antion Nelson of the Motley Rice law firm:

The West Virginia Legislature made a purely political decision and violated the West Virginia Constitution when it drastically reduced the cap on noneconomic damages in medical malpractice cases from $1 million to $250,000, in most cases. When the Legislature turns against its constituency in favor of pressure groups with selfish interests, it is the peoples' right to seek help from their Supreme Court, and it is the duty of the judicial branch to exercise its proper role in the 'separation of powers' to void legislation that violates the constitutional rights of its citizens...

Not affecting fundamental rights? The right to a trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial? How could the majority in MacDonald avoid the reverberating 'NO' answer to these questions when the answer had been clearly stated in several West Virginia cases... 'In other words, 'when a legislative enactment either substantially impairs vested rights or severely limits existing procedural remedies permitting court adjudication of cases, then the certain remedy provision of Article III, Section 17 of the West Virginia Constitution is implicated.' Syl. pt. 6, in part, Gibson v. West Virginia Dep't of Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991)...

The Court's degrading of the right of a jury trial in a civil case in West Virginia is in square conflict with the United States Constitution. The phrases used in the United States Constitution and the West Virginia Constitution for granting the right to a civil jury trial are almost identical. For our Supreme Court to suggest that the right to a jury trial in West Virginia is not as great as that in another state that uses the phrase "the right to trial by jury shall remain inviolate" in its constitution makes no sense. If the Federal right to a jury trial is based upon the phrase "the right of trial by jury, if required by either party, shall be preserved" and West Virginia's constitutional right to a jury trial is based upon the phrase "the right of trial by jury, if required by either party, shall be preserved" is our Supreme Court being a bit iniquitous to even suggest that the right to a jury trial in West Virginia is not as great as it is in, for instance, the state of Georgia? (Editor's Note: The Georgia Supreme Court ruled in 2010 that damage caps in medmal cases violate the Georgia constitution.)

Not affecting fundamental rights? The right of equal treatment is also a very fundamental right. How can a damage cap that blatantly favors a special class of medical professional by limiting or taking away the damages an injured person may recover from a medical professional be constitutional? No other person who negligently injures another person is given that unconstitutional protection. Would any West Virginia legislator suggest that lawyers be given that special protection? I doubt it...

Although we wish it were not so, all judges have audiences that they seek to please. With these audiences and with the natural desire to win expensive elections, it is essential for judges and justices to always remember the importance of the protections given to all people in our State and Federal Constitution and to decide disputes based on those cherished documents. In many cases that means a decision that displease a majority of the voters. It may mean that a judge's audience will be unhappy with the decision. But an independent judiciary has to protect the rights of minorities as well as the rights of the majority. And an independent judiciary has to protect the rights of victims of medical negligence as well as the rights of doctors who are overcharged by insurance companies...

The battleground for the fundamental right to a civil trial by a local jury is shifting from Washington to the states, with many imposing damage caps in the face of their own constitution. Judge Wilson's dissent should be carried into courtrooms throughout the country.

"Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That's New York, and that's their business, and that's fine with me. That is their call. If you believe in the 10th Amendment, stay out of their business."

That's Gov. Rick Perry of Texas, quoted by the AP and repeated in Politico yesterday. So obviously, Gov. Perry should be in favor of protecting state tort law regimes and against federal tort reform, right?! After all, his fellow Texans, Rep. Ron Paul and Tea Party Patriots co-founder Mark Meckler, are already on record against it, and another Texas Republican, Rep. Ted Poe, is against H.R. 5, the medical malpractice tort reform bill pushed by Texas Republican Rep. Lamar Smith.

We need a clear statement from Gov. Perry on his stand on federal tort reform if he runs for President. Either he's the real deal like Ron Paul, or he's just another inconsistent "Constitutional conservative" like Michele Bachmann and all of the other GOP Presidential candidates right now.

Social conservative leader Ken Connor was interviewed on Tuesday on the What's Up radio program, hosted by Terry Lowry and broadcast nationally thanks to co-sponsorship by the American Association of Justice. Ken is not only a colleague in advocating the right to a jury trial under the 7th Amendment, but he introduced me to Terry Lowry and proposed the expansion of Terry's program to a nationwide basis, for which my readers can be very grateful. Ken was the President of the Family Research Council, is a longtime pro-life activist and leader, and founded and chairs the Center for a Just Society. He's also a veteran trial lawyer with an outstanding record of representation for his many clients.

Ken discussed the basic safeguards in criminal cases that our Founding Fathers recognized in the Constitution and Bill of Rights, how those safeguards were reflected in the Casey Anthony trial, and how the verdict validates the Founders' vision. He reminded listeners that the Founders thought of the right to a jury trial for criminal cases and civil cases together. He talked about many of the points I've written about here: the Biblical basis for the jury system; the 1000+-year-old use of the jury system around the world; the Founders' inclusion of the right to a jury trial in our founding documents; and their insistence on protection in the Bill of Rights as a "cherished right."

He then turned towards the debate on "tort reform" in civil cases, noting that it is critical that an accused in either a criminal or civil case needs to have the opportunity to present his case before a local jury of peers. Terry Lowry and Ken reminded listeners of the importance of the Seventh Amendment right to a civil jury trial system to protect our First Amendment right to the free exercise of religion, the Second Amendment right to bear arms, and so on. Ken criticized those members of his political party, the Republican Party, who seek to give corporations a free pass for tortious actions by violating the Constitutional rights of all Americans.

Ken Connor is a true "Constitutional conservative" who cherishes EVERY amendment in the Bill of Rights. You can hear Part 1 of the interview here and Part 2 of the interview here.

On June 28, I posted, Compensate Qaddafi's Terrorism Victims Before Funding Unknown Rebels, in response to the introduction of a bill which would have authorized the use of some portion of the $30 billion in assets seized from Muammar Qaddafi for humanitarian relief to and for the benefit of the people of Libya. In fact, the proper use of the aid would have been dependent upon the integrity and credibility of the rebel leaders. I wrote, "Qaddafi's terrorism victims, including those citizens of our allies overseas, deserve full compensation for Qaddafi's crimes before we even consider shipping one dollar to an unknown group of rebels with terrorist backgrounds." The majority of the U.S. House apparently didn't trust the rebels and banned the transfer of appropriated funds to the rebels.

Tomorrow, July 20, the House Foreign Affairs Committee will take the first action on the bill to authorize State Department programs for fiscal year 2012. That bill might not be the appropriate vehicle for Congress to use in ensuring that Qaddafi's terrorism victims, here and abroad, are compensated, since the action to freeze the funds was taken by the Treasury Department. But the committee action is certainly an appropriate time to discuss the legal precedent for releasing a country's funds frozen by the Treasury Department and compensating the terrorism victims of that country. It has been done before and can be done again quite easily.

In 2000, Congress was working towards eventual enactment the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1541, a catch-all bill with numerous provisions to assist victims of domestic and international violence. Victims of Iranian-sponsored and Cuban-sponsored terrorism worked with interested Congressmen to add Section 2002, "Payment of Certain Anti-Terrorism Judgments," to the bill, which enabled the Treasury Department to pay the victims' claims out of certain assets held in funds named in the bill. That section also included a "Reaffirmation of Authority" stating that, "Congress reaffirms the President's statutory authority to manage and, where appropriate and consistent with the national interest, vest foreign assets located in the United States for the purposes, among other things, of assisting and, where appropriate, making payments to victims of terrorism."

And there is certainly a need for Congress to reconsider legislation enacted three years ago to compensate all victims of Qaddafi's terrorism. As I wrote in June and on March 8, many have not been satisfied by international efforts thus far to compensate them for the horrible atrocities committed over a 30-year period. Americans who won a court judgment worth billions against Qaddafi in federal court saw their legal action cut short by the Libyan Claims Resolution Act of 2008, and they were forced by their government to accept a sharply reduced amount. Meanwhile, scores of British and Irish victims who had filed a lawsuit in Washington with Americans were summarily tossed out of court by the LCRA, even though their claims arose from the same terrorist bombings as the American plaintiffs' claims, and the foreign claims were litigable as a matter of American law.

I also wrote in March that payments to Americans authorized under the LCRA have been denied based on arbitrary decisions by Justice Department attorneys, including the use of a "continuous nationality" rule that isn't mentioned in the LCRA. Since my June post, Eric Sorensen, Esq., wrote to me about his case involving an American citizen and her now-deceased foreign-born husband, who died in 1993. In 1987, they were kidnapped by the Libyan navy in international waters. They were held for months, including in near-freezing conditions, during which she developed severe frostbite untreated for almost a month. Although she was eventually released, he was held for nine more months in a Libyan jail. Both subsequently developed cancer, which killed the husband. She filed suit against Libya in federal court in 2000 and were still litigating the legal issues in 2008 when the LCRA forced them into the claims settlement process.

The claims settlement process has been a nightmare. The deceased husband's claim was quickly dismissed because, like the British and Irish victims cited above, he was not a citizen at the time of his capture. The wife's claim has been denied because attorneys at the Justice Department demand that she present "contemporaneous" medical records from her Libyan captors! Multiple doctors' reports on her frostbite and on years of post-traumatic stress syndrome apparently mean nothing to the Justice Department.

I've heard story after story like this from attorneys who pursue claims against Qaddafi, three years after Congress supposedly took final action to compensate them. It's time to clear the decks of all these cases, stop the administrative nightmares, and reserve sufficient frozen funds to pay ALL victims of Libyan terrorism who could pursue their claims in U.S. courts when the LCRA was enacted. Attorneys at the Motley Rice firm, one of my clients, have drafted the attached legislative proposal to do just that, and I hope Congress will initiate work on this soon. Victims from around the world who survived decades of Qaddafi's terrorism deserve a final measure of justice, and the only way they can achieve it is for the U.S. to compensate them from Qaddafi's own funds. It's the right thing to do.

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.

What makes a real "Constitutional conservative?" Rep. Michele Bachmann claims the mantle in a Daily Caller post and sets forth some elements of her definition, such as the classic Reagan-era "three-legged stool;" a limited government with specific, enumerated powers; and respect for states' rights under the Tenth Amendment. But Joseph Lawler of the American Spectator brushes off Rep. Bachmann's attempt in a few words: "With all due respect to Rep. Bachmann, it's pretty clear that she is not the standard bearer for constitutional conservatism... Insofar as Michele Bachmann supports ideas and policies that would radicalize the Republican Party, she's less of a constitutional conservatives than the Pauls and other likeminded members of Congress."

I think Lawler owes Rep. Bachmann more specifics to support his objection, so I will propose one, the one which is relevant to this website and cause. Rep. Bachmann is not a true-blue, first class "Constitutional conservative" because she is a co-sponsor of a bill that is clearly an unconstitutional exercise of federal power at the hands of the states, namely, H.R. 5, the "HEALTH Act," which would pre-empt all state tort law over health care and medical malpractice lawsuits. There can't be any remaining doubt of the bill's unconstitutionality, considering the overwhelming authority for that position, as expressed by scholars, including those usually favorably disposed to tort reform. For starters, Rep. Ron Paul, to whom Lawler referred, has clearly stated his opposition to any federal medical malpractice bill.

Prof. Randy Barnett, perhaps the premier "Constitutional conservative" scholar in America today, says H.R. 5 and other federal tort reform bills are unconstitutional. No one understands the limitations of the Commerce Clause and the constitutional protections over states' rights like Prof. Barnett, and his condemnation of federal tort reform bills is clear:

But tort law -- the body of rules by which persons seek damages for injuries to their person and property -- has always been regulated by states, not the federal government. Tort law is at the heart of what is called the "police power" of states... Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits.

Prof. Barnett is joined in his opinion by fellow conservatives and tort reform advocates, namely Prof. Ilya Somin and longtime constitutional scholar and pro-lifer John Baker; pro-tort reformers like Walter Olson and Ted Frank; and conservative legal scholar Prof. Jonathan Adler. Tea Party Patriots co-founder Mark Meckler also agrees. So does the nonartisan National Conference of State Legislators, which wrote to Congress to express its outrage over H.R. 5 and federal tort reform in general. Recently, Sen. Tom Coburn opined that a federal tort reform law would violate states' rights. Rep. Bachmann's co-sponsorship of H.R. 5, despite the judgment of some of the most respected authorities among Tea Party activists, undercuts her claim of being a "Constitutional conservative."

At the least, conservatives and Tea Partiers should agree that a "Constitutional conservative" honors and protects all of the amendments in the Bill of Rights, including the 7th Amendment right to a civil jury trial and its "uncle," the 10th Amendment.

Congress did not intend for arbitration agreements, adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, and which require questions about the negligence be submitted to arbitration, to be governed by the Federal Arbitration Act.

In essence, our Constitution recognizes that factual disputes should be decided by juries of lay citizens rather than paid, professional fact-finders (arbitrators) who may be more interested in their fees than the disputes at hand.

The admission agreements in this case contain arbitration clauses that eliminate a fundamental constitutional right: the right of the parties to have a jury trial in the West Virginia circuit court system on the plaintiffs' personal injury claims against the defendant nursing homes.

The West Virginia Supreme Court wrote these statements last week when issuing rulings in three cases against the use of forced arbitration clauses in nursing home contracts to keep victims from taking their case to a jury of their peers. Each case involved (1) a claim that a nursing home negligently caused the death of a resident; (2) a contract signed by a representative for the resident with a clause mandating that any disputes arising from negligent treatment would be submitted to arbitration; and (3) a defense by the nursing home that the claim should be submitted to arbitration, not to a jury at trial.

The court courageously disagreed, citing Article III, § 13 of the state Constitution, which preserves the right of the people to a jury trial with language identical to that of the Seventh Amendment. The Justices also criticized the "tendentious reasoning" used by the U.S. Supreme Court in its rulings to turn the Federal Arbitration Act into a substantive law that preempts most state law.

Congratulations to the attorneys who pleaded these cases and won the victory for their clients. Hopefully this decision will start a trend in other courtrooms and spark a change in opinions in Congress about forced nursing home arbitration contracts. A bill to ban such clauses has been gathering dust for several years and needs to be resuscitated.

Yes, all three have one thing in common. Let's start with the latter two. At first glance, the average American might wonder - one's a criminal case over the murder of a child, the other a civil suit over spilled coffee; in the former, the defendant, Casey Anthony, was found not guilty by the jury of the most heinous of the six charges against her, while defendant McDonald's was found liable by the jury, which assessed damages in the millions of dollars. But the common thread is this: The "OUTRAGE!" expressed by average Americans to the decisions of the jury in each case sadly reflects, in large part, a lack of respect for and/or knowledge of the jury system, a jury system built into and protected by the Bill of Rights and beloved by our Founding Fathers. Tea Party Nation founder Judson Phillips, an attorney and expert on the Constitutionally protected jury system, said it best and simply this morning when commenting on the Casey Anthony verdict: "Trial by jury may be an imperfect system, but it is better than all of the alternatives." Amen to that! Hopefully more Americans will come to understand and appreciate the wisdom of the jury system.

Although Mr. Phillips commented solely on the use of the jury system in criminal cases, we know that the Founding Fathers didn't consider the right to a jury trial in civil cases to be subordinate to the right in criminal cases. My work here is all about educating readers on that critical point, especially given my opinion that the 7th Amendment right to a civil jury trial is the most unknown and endangered of any right protected by the Bill of Rights.

Which brings me back to John Adams. No Founding Father embodies the respect reserved for jury trials in civil AND criminal cases than John Adams. After all, it was John Adams who stepped up to represent the British soldiers who participated in the Boston Massacre in order to persuade a jury of Bostonians - ANGRY Bostonians who HATED the British - that the soldiers were not guilty of murder. You can read his famous closing argument on the website dedicated to the Boston Massacre. Near the end, note those oft-quoted words of Adams, "Facts are stubborn things," and finishing with perhaps the greatest tribute a trial attorney can pay to a jury: "To your candour and justice I submit the prisoners and their cause." And the jury acquitted the British captain and six of his soldiers, subjecting Adams to the "OUTRAGE!" of his fellow citizens for his persuasive abilities.

And we know that Adams cherished the right to a civil jury trial too. I wrote last August of his published letters defending the unalienable rights of Americans, one of which included the following:

"The people choose a grand jury, to make inquiry and presentment of crimes. Twelve of these must agree in finding the bill. And the petit jury must try the same fact over again, and find the person guilty, before he can be punished. Innocence, therefore, is so well protected in this wise constitution, that no man can be punished till twenty-four of his neighbors have said upon oath that he is guilty. So it is also in the trial of causes between party and party. No man's property or liberty can be taken from him till twelve men in his neighborhood have said upon oath, that by laws of his own making it ought to be taken away, that is, that the facts are such as to fall within such laws. What a satisfaction is it to reflect, that he can lie under the imputation of no guilt, be subjected to no punishment, lose none of his property, or the necessaries, conveniencies, or ornaments of life, which indulgent Providence has showered around him, but by the judgment of his peers, his equals, his neighbors, men who know him and to whom he is known, who have no end to serve by punishing him, who wish to find him innocent, if charged with a crime, and are indifferent on which side the truth lies, if he disputes with his neighbor!"

John Adams walked the walk, and Americans like Judson Phillips do so today. Instead of quickly condemning juries who adjudge accused murderers and unusual civil suits, we should look to the wisdom of the Founding Fathers, take a deep breath, and thank the Founders and God Almighty for the jury system for criminal and civil cases.

One of my primary themes here is to remind readers that the Founding Fathers honored and protected the civil litigation process for all types of civil suits, including those filed by my friends and allies in the social conservative movement. The 7th Amendment protects the right to a jury trial for civil suits for standard tort claims arising from accidents, defective products, and medical malpractice... and that right also protects our religious liberty, gun rights, property rights, and so on. One of the points I make with my conservative friends is that "the tort reform movement is coming for you" in ways they would never imagine. This week, we might have the third instance in two years, and the second this year, in which tort reform confronts social conservatives.

In a 5-4 decision in the Pliva vs. Mensing case, the Supreme Court ruled that federal legislation regulating generic drugs pre-empts state law, effectively immunizing generics from state court cases. The decision also leaves generics in a favorable legal position compared to brand-name drugs, since the Court decided in Wyeth vs. Levine two years ago that the federal law regulating brand-names doesn't pre-empt state law, a point that Justices acknowledged in the Mensing decision. As generics constitute upwards of 70% of all drug sales, the Mensing decision marks a major step forward in the tort reform movement's campaign to eliminate lawsuits immediately upon FDA approval.

For the pro-life movement, this raises the specter that the makers of generic forms of RU-486, the "morning-after pill," can count on federal pre-emption to immunize them from civil suits over the pill's dangerous side-effects. So the Mensing decision may have created a permanent safe harbor for generic RU-486, foreclosing an important tool in the pro-life movement's fight to ban RU-486. As I posted on August 28, 2010, trial lawyers have assisted the pro-life and womens' health causes for decades, by pursuing dangerous abortifacients, unsafe drugs, and defective medical devices, all approved by a FDA asleep at the switch. Civil suits might be the last line of defense for champions of the unborn against the new wave of abortifacient technology, but not if the technology is immunized through pre-emption in federal law.

This comes after the Supreme Court decisions in the Iqbal and Twombly cases, which also impact social conservatives, especially those who litigate on behalf of their causes. I've written often on those cases and the potential impact on all plaintiffs. The Alliance Defense Fund wrote an important letter in early 2010 to Congress over its concern that the decisions could threaten every American's religious liberty through imposition of an uncertain "plausibility" standard, which invites "defensive lawyering" and subjective dismissals of complaints by individual judges.

And the House Judiciary Committee is still preparing to act on H.R. 966, the "Lawsuit Abuse Reduction Act," the tort reform movement's bill to unnecessarily impose sanctions on plaintiffs' attorneys as a means of preventing lawsuits. As I wrote on March 10, "LARA" could "scare away nonprofits or small firms specializing in religious liberty cases from filing suits against large entities, for fear that a judge could impose costly sanctions.rights to protect religious liberty against infringement by various parties." If "LARA" had been in effect last year, social conservatives might not have filed a lawsuit that forced the University of Illinois to back down from threatening to fire a professor for discussing Christianity in his history class.

Social conservatives should look over their shoulder; the tort reform movement is coming for them, case by case.

The Alliance Defense Fund, the premier litigators for social conservatives in the country, won another victory through civil litigation, this time forcing a Minnesota high school to officially recognize a pro-life student club. The ADF sued the St. Michael-Albertville School District in April when the high school denied the "All Life is Valuable" (ALIV) group permission to meet in school facilities, alleging that it didn't "support the student body as a whole." That's not going to work under the First Amendment, and ADF attorneys knew it. The school backtracked in the press, suddenly claiming that the group was free to meet just like other non-curricular groups. But the suit continued until the school district officially recognized the club, leading this month to a dismissal of the lawsuit. The district will also pay the club's legal costs. Congratulations to ADF for once again pursuing the Constitutional right to a civil jury trial in order to protect free speech and the right to peaceful assembly.

Tomorrow is the 222nd anniversary of the introduction by James Madison of the first proposed amendments to the Constitution, eventually the Bill of Rights, before the first Congress.

I posted long excerpts of Madison's remarks here on March 30, including the language of his amendment to protect the right to a jury trial for civil suits: In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate. Madison went on to describe that right "as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Of course, he was one of many of the Founding Fathers who supported the unfettered right to a civil jury trial. Quote of the Day has been a feature of this website since I opened almost a year ago, in order to highlight the Founding Fathers' quotes in favor of the 7th Amendment. Here are more such quotes by Thomas Jefferson and other Founders and commentators:

I sincerely rejoice at the acceptance of our new constitution by nine States. It is a good canvas, on which some strokes only want retouching. What these are, I think are sufficiently manifested by the general voice from north to south, which calls for a bill of rights. It seems pretty generally understood, that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies. I conceive there may be difficulty in finding general modifications of these, suited to the habits of all the States. But if such cannot be found, then it is better to establish trials by jury, the right of habeas corpus, freedom of the press and freedom of religion, in all cases, and to abolish standing armies in time of peace, and monopolies in all cases, than not to do it in any. The few cases wherein these things may do evil, cannot be weighed against the multitude wherein the want of them will do evil. In disputes between a foreigner and a native, a trial by jury may be improper. But if this exception cannot be agreed to, the remedy will be to model the jury by giving the mediatas linguae, in civil as well as criminal cases. Thomas Jefferson, letter to James Madison, July 31, 1788.

In conformity with these principles, and from respect for the public sentiment on this subject, it is submitted, that the new constitution proposed for the government of the United States be bottomed upon a declaration or bill of rights, clearly and precisely stating the principles upon which this social compact is founded, to wit: ... that the trial by jury in criminal and civil cases, and the modes prescribed by the common law for the safety of life in criminal prosecutions shall be held sacred,... Richard Henry Lee, proposed amendments to the Constitution, October 16, 1787.

Your constitution further provides 'that in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.' ... Whether the trial by jury is to continue as your birth-right, the freemen of Pennsylvania, nay, of all America, are now called upon to declare... The late Convention have submitted to your consideration a plan of a new federal government--The subject is highly interesting to your future welfare--And it is worthy of remark, that there is no declaration of personal rights, premised in most free constitutions; and that trial by jury in civil cases is taken away... 'Centinel,' presumed to be "Antifederalist" Samuel Bryan, in letter to fellow Pennsylvanians, October 5, 1787.

If the federal constitution is to be construed so far in connection with the state constitutions, as to leave the trial by jury in civil causes, for instance, secured; on the same principles it would have left the trial by jury in criminal causes, the benefits of the writ of habeas corpus, &c. secured; they all stand on the same footing; they are the common rights of Americans, and have been recognized by the state constitutions... "Federal Farmer IV", another of the "Antifederalists," in letter of October 12, 1787.

These quotes are the seeds of our democracy, planted by our forefathers, nurtured and fed with the blood, toil, and sweat of two hundred years of Americans who served the cause of freedom.