Recently in History Category

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 Medicare Sustainable Growth Rate (SGR) is the method enacted in 1997 to control spending by Medicare on physician services, and ensure that the yearly increase in the expense per Medicare beneficiary does not exceed the growth in GDP. Every year, the Centers for Medicare & Medicaid Services and the Medicare Payment Advisory Commission advise Congress on the previous year's total expenditures and the needed adjustment in Medicare payments to doctors. For years, the calculation has resulted in a planned cut in payments, but Congress has repeatedly delayed the cuts. Congress and President Obama have delayed the implementation of the payment cuts several times, most recently until the end of February. On that date, it is estimated that the SGR will be a cut of at least 20% in payments. Physician groups, especially the American Medical Association, are lobbying for a permanent change to the SGR methodology, called the "doc fix" inside the Beltway, to prevent annual cuts.

I can understand the desire of the doctors' groups to rationalize the process and avoid painful SGR cuts, which could result in an actual reduction in medical services for those who most need them. But already we've seen political allies of the AMA recommend that Congress pay for the "doc fix" by crushing the constitutional rights of all Americans and instituting sweeping nationwide limits on medical malpractice and health care-related lawsuits. Numerous conservatives and Tea Party-side legal experts have condemned any such federal tort reform law as an unconstitutional infringement on states' and individual rights. That's reason alone to not pursue that option.

But there's another reason why Congress shouldn't try to pay for the "doc fix" with medmal limits: the CBO's estimates of revenues resulting from the institution of federal limits on medmal lawsuits are fatally flawed. The AMA and its allies continuously promote a CBO estimate, released during the ObamaCare debate, that medmal limits would save close to $60 billion over ten years. Here are the flaws in that estimate:

First, 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 enactment of the Affordable Care Act, or that Cantor and House Speaker John Boehner criticized CBO for predicting that repealing ObamaCare would cost $145 billion.

Second, CBO admitted in 2010 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." In fact, implementing CBO's projection of "savings" 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. That's not a cost that CBO can estimate, but it's one we don't want to bear.

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. In fact, Congressmen and Senators of both parties are sponsoring legislation to improve that process and return even more revenue to the Treasury, but CBO still can't count that money properly.

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. In fact, a study by the Commonwealth Fund shows health insurance premiums rising rapidly in California since 2003, despite the state's very tough limits on awards in health care-related lawsuits. CBO makes the assumption that Uncle Sam can wave a wand and magically force health insurance premiums to drop. How's that one working out in California?

In conclusion: Anyone betting on federal lawsuit limits to pay for the "doc fix" is wasting their time. Not only is it unconstitutional, but it won't raise real money and solve our budget problems. Congress should reject any proposal to impose federal limits on health care-related lawsuits, and instead spend its valuable time designing a constitutional and mathematically reliable "doc fix" solution.

There's a great article in The Washingtonian magazine today titled, "Minor Mistakes, Deadly Results," about the thousands of deadly medical errors occurring annually and the measures taken by Washington-are hospitals to prevent them. Here's the beginning of the article, with a story that illustrates the cases and should break your heart:

When Frances Barnes had a stroke in August 2008, she was taken by ambulance to Howard University Hospital. The 80-year-old grandmother was there for about two weeks when she began complaining about pain in her legs. Her daughter Althea Hart pulled back her mother's blankets and noticed a strange odor. Hart thought the smell was coming from the compression stockings wrapped around Barnes's legs to help with circulation, so she took them off. She found that her mother's left foot had turned black.

Hospital staff had failed to follow physician orders, which required taking off the compression stockings after each shift for at least 30 minutes, according to a DC Department of Health investigation.

"We called a nurse right away, and they tried to heal her infection," says Patricia Moss, another of Barnes's daughters. "But they couldn't."

Barnes's family moved her to Providence Hospital in Northeast DC, where she had to have her lower leg amputated. Barnes moved to a nursing home, where she continued to get infections; she died at Providence in February 2009, five months after her foot turned black. Barnes left behind eight children, 15 grandchildren, and 16 great-grandchildren.

The facts are startling. Medical malpractice appears to be worsening. "In 2010, the federal government estimated that faulty medical care contributed to the death of about 15,000 Medicare patients per month. By these measures, faulty hospital care is one of the leading causes of death, behind heart disease and cancer." And surgery on the wrong location in body happens "as often as 40 times a week in US hospitals and clinics," according to the Joint Commission, which accredits American hospitals. All this despite the use of a universal protocol in accredited hospitals as a way to eliminate wrong-site surgeries.

On March 23 of last year, I wrote about surveys of operating room and critical care nurses that revealed shocking instances of medical malpractice. For instance, 85% of 2,383 nurses surveyed said they'd been in a situation where measures such as checklists and protocols warned them of a problem that would have otherwise harmed a patient. But 58% of the nurses said they'd been in situations where it was either unsafe to speak up or they were unable to get others to listen.

Tort reformers screaming for an unconstitutional federal takeover of state courtrooms and tort law should think a little more logically. The most important and successful way to institute valuable reforms in the medmal area is to institute cost-effective prevention mechanisms. State legislatures and Medicare should concentrate on requiring such protocols, not trying to limit the damage on the back end through limits on medical malpractice lawsuits. As the libertarian Cato Institute demonstrated last year, caps on medmal awards only hurt consumers, they don't reduce deadly medical errors.

Fix the problem at its source and you'll see real reductions in the number of medical malpractice lawsuits.

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.

The chairman of the top health subcommittee in the House, Rep. Joe Pitts, announced this week that the House GOP would offer a "replace Obamacare" bill that be a "free-market alternative." But he added that the proposal would mandate a federal cap on awards in medical malpractice lawsuits filed anywhere in the U.S. There's nothing "free-market" about using federal law to give orders to juries and judges sitting in state courtrooms. The Founding Fathers trusted local juries to make the decisions on claims before them, including the level of damages. That's why so many Republican Members of Congress, conservative legal scholars, and states' rights advocates have criticized legislative proposals to federally mandate awards in medmal lawsuits, tell local judges which cases they can and cannot handle, and impose federal wage controls on attorneys. Did Rep. Pitts pay any attention when Ken Cuccinelli, Attorney General of Virginia, promised that he would sue to stop such a law more quickly than he sued to stop Obamacare? Or when Randy Barnett, co-counsel for the NFIB in the lawsuit to kill Obamacare, wrote that tort law belongs exclusively to the states and called out Republicans like Pitts as "fair-weather federalists?" Or when his fellow Republicans in Congress such as Senators Tom Coburn and Mike Lee, and Reps. Lee Terry, Morgan Griffith, Ted Poe and Louis Gohmert stood up for the Founding Fathers' vision of liberty, trusted local juries and opposed federal medmal limits? Or when Rob Natelson of the conservative Independence Institute documented the writings of the Founding Fathers, in which they clearly insisted on protecting the right to a civil jury trial in state courts from federal interference? Or when the Cato Institute reported that medmal caps hurt consumers, or when the non-partisan National Conference of State Legislators objected to federal medmal limits in a letter to Congress? What do the 7th Amendment and 10th Amendment mean to Rep. Pitts?

Why doesn't he realize that his beloved federal cap on medmal lawsuit awards shares the same basis in constitutional theory as the Obamacare he wishes so hard to replace? Both are fundamentally based on the expansion of the Commerce Clause initiated after the Supreme Court's decision in Wickard v. Filburn. The Obama Justice Department cited that case in its briefs in Obamacare cases (page 18), and the American Tort Reform Association cited it in a paper supporting federal medmal limits (page 2). Or does Rep. Pitts recognize only those limits on federal power with which he agrees?

And why - WHY - does Rep. Pitts want to reward the pro-Obamacare and pro-abortion AMA and their buddies among medical groups, who shoved the individual mandate down our throats? Why does he want to give them partial civil immunity from deadly medical errors when they're pursuing the federal takeover of all health care?

Maybe most importantly, is Rep. Pitts speaking just for himself or for most or all of the House GOP? If he took off on his own to propose an unconstitutional and hypocritical bill, then it's easy to predict the bill won't enjoy even the support of too many Republicans. Let's hope so.

In various posts since the inception of this website, I've addressed the relevance of the right to have a civil suit heard before a jury in the context of individual issues of importance to Tea Partiers, Constitutional conservatives, and Republicans. This centuries-old right, recognized since the Magna Carta in 1215, has been under attack for decades and is now, I assert, the least known and most endangered of the ten Constitutional amendments in the Bill of Rights. Here's a simple summary of reasons why those groups, my ideological brethren (and in the case of Republicans, my sometime employer), should back an unhindered right to a jury trial for civil suits:

1. CIVIL SUITS CAN KILL OBAMACARE: The Republicans and Tea Partiers are rightly cheering on those state Attorneys General who have sued in federal court to declare ObamaCare unconstitutional. But it's rather disingenous to trash trial lawyers and then turn around and enthusiatically back the anti-ObamaCare lawsuits filed by a state's top official trial lawyer. At least it guarantees that we won't hear anyone of either party refer to the state AG suits as "junk lawsuits" and trash the AGs as "power-greedy trial lawyers."

2. CIVIL SUITS PROTECT THE UNBORN & WOMENS' HEALTH: I posted in August 2010 that trial lawyers have assisted the pro-life and womens' health causes for decades, by pursuing dangerous abortifacients, and unsafe drugs, and defective medical devices, all approved by a FDA asleep at the switch. And civil suits will be the last line of defense for champions of the unborn against the next wave of abortifacient techonology.

3. CIVIL SUITS PROTECT RELIGIOUS LIBERTY, GUN RIGHTS & PROPERTY OWNERS: "The 7th Amendment is the "sword and shield" enabling us to defend our religious liberty against government interference and intolerant institutions, e.g., pompous and overbearing university administrators. The Alliance Defense Fund successfully reversed attempts at university firings in the Howell and Sheldon cases by first suing the respective universities, and ADF prevents many other illegal actions just by threatening a suit. I didn't see anyone cracking on them as "sharks" and decrying their filings as "junk lawsuits." And of course, it took two civil lawsuits, filed by Americans exercising their 7th Amendment rights, to finally ensure that the correct, Constitutionally conservative view of the Second Amendment is the law of the land. Meanwhile, local governments try to use eminent domain often to take over private property - what would happen if their actions were impervious to legal challenge?

4. CIVIL SUITS PUNISH TERRORIST FINANCIERS: As I posted in June 2010, the 7th Amendment has been an important tool for the pursuit of terrorist financing, and civil lawsuits have resulted in some important judgments. The family of David Boim, an American killed by Hamas terrorists in Israel, successfully won a $156 million judgment against the Dallas-based Holy Land Foundation for its role as the biggest Hamas fundraiser in the U.S. And terrorism victims' attorneys from the Motley Rice law firm (one of my consulting clients), who are pursuing the Arab Bank in a civil suit for its alleged role as a conduit for terrorist funds, were able to access information gathered by Israeli intelligence for presentation when the case comes before a jury, hopefully soon. A former official of the NSC under Presidents Clinton and Bush testifed to Congress that, "civil litigation can substantially enhance the financial consequences that such entities face" (referring specifically to terrorist financiers).

5. THE 7TH AMENDMENT REPRESENTS A MAJOR DIFFERENCE BETWEEN CONSTITUTIONAL LAW AND ISLAMIC SHARIAH LAW: As I posted in August 2010, there are never any juries under Islamic shariah law for any case, civil or criminal - 800 years of American constitutional and Western jurisprudence go down the tubes, and a local imam picks the winner. The results are not just primitive, but barbarous, especially for women.

6. LIMITING CIVIL JUSTICE EMPOWERS JUDGES, BUREAUCRATS & "RULING CLASS," AND DEGRADES LOCAL CONTROL: We already see a chasm between the ruling class and the rest of the country along numerous political and social fault lines. Federally imposed limits on the civil justice process, such as the preemption of state statutory and common law for certain claims or restrictions in federal civil pleading standards, only cede more power to the judiciary and federal bureaucrats. Putting complete control over certain products or services (e.g., implantable medical devices or financial services) in the hands of federal bureaucrats (the FDA or Treasury, respectively), with total immunity for the companies involved, is simply not the system of justice that the Founding Fathers intended to build. To reiterate what another conservative said, "The tort system promotes local control. Through the jury system, people at the local level decide what is reasonable behavior within their own communities. Ordinary citizens, applying a common sense standard of reasonable care, making decisions about acceptable and unacceptable conduct within their community - that is the essence of local government. And, as a result of those decisions, suppliers of goods and services within the marketplace will often modify their own behaviors... without the necessity of yet another costly and intrusive governmental bureaucracy..."

7. MOST IMPORTANTLY: BECAUSE THE FOUNDING FATHERS SAID IT'S A PRIORITY FOR ALL AMERICANS: There is no question that the Founding Fathers - from Jefferson and Madison and Hamilton, to John Adams, to George Mason, all explicitly said that citizens have the right to have their claims against their neighbors heard by a jury of their peers. It's mentioned in the Declaration of Indepedence and was protected in the first Virginia Declaration of Rights.

Promoting the 7th Amendment is the "right" thing to do to avoid being a political hypocrite of the type that Tea Partiers want to remove from power. Republicans and Tea Partiers uphold the 1st Amendment in the face of a biased and inaccurate media elite, and we defend the 2d Amendment in the face of serial shooters. We should protect and promote the 7th Amendment at all times as we do all other Amendments in the Bill of Rights.

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.

In August, I asked here whether we would see Presidential candidate Rick Perry as the hardcore states' rights advocate, or Rick Perry the hardcore advocate of limiting the 7th Amendment right to a civil jury trial through limitations on plaintiffs' rights. He couldn't logically be both, since federal tort reform is completely incompatible with the concept of states' rights under the Constitution and Tenth Amendment. But Perry tried to be both, with no success. Perry suffered from the same malady as Michelle Bachmann, who falsely promoted herself as a "Constitutional conservative" while proposing federal medical malpractice laws (which would benefit the medical device industry located in her district). Republican primary voters were smart enough to see the blatant inconsistencies of the Perry and Bachmann campaigns, simultaneously calling to protect states' rights while they urge closing state courtroom doors under federal law. To his credit, Gov. Perry seemed to back off of federal tort reform in the fall and winter; it wasn't included in his "Cut, Balance and Grow" economic plan, and he stopped mentioning it in debates.

Gov. Perry ended his campaign today by endorsing Newt Gingrich. It's time to ask the same question about Newt Gingrich, still one of the frontrunners for the GOP nomination. Will we see a states' rights champion or an advocate for closing courtrooms and crushing constitutional rights?

I see Gingrich as evolving in his position during the past year or two. The "Old Newt" was a hardcore tort reformer with no respect for the right to a civil jury trial or states' rights. "Old Newt" developed a "Contract With America" in 1994 which propelled Republicans into a House majority and Gingrich into the Speaker's chair. It was blatantly pro-federal tort reform and didn't protect state authority for any purpose whatsoever. And an early version of a new "Contract," posted in early 2010 on the conservative Newsmax website, included a call for "Litigation Reform." But Gingrich has championed his support for states' rights in recent years, most notably in the books such as "Fed Up" (ironically co-authored with Rick Perry). As his Presidential campaign revived, he proposed enforcing the 10th Amendment "to return power back home" to the states, as part of the new "Contract With America."

So, you might ask, where is Newt now on this issue? Interestingly, Gingrich hasn't mentioned federal tort reform at all in the Presidential debates. When Virginia Attorney General Ken Cuccinelli called out Bachmann over her disrespect for state civil justice systems, Gingrich didn't respond either way. Although his campaign website proposes in one sentence to "Stop junk lawsuits that drive up the cost of medicine with medical malpractice reform," I'm not aware of any forum in which he's proposed it. When Rick Santorum, an unrepentant non-states'-righter, slammed Ron Paul over Paul's principled criticism of a national tort law, once again Gingrich didn't take the bait and didn't jump in on either side. It's fair to say that with the exception of that one sentence, Gingrich can claim that he's not for federal tort reform. Does he stand by that sentence or was it just an addition by a campaign staffer to make some contributors happy? If reports on the Internet about Gingrich and Perry building a pro-10th Amendment platform are true, we'll have a real means of judging Gingrich's fidelity to constitutional principle.

Will he recognize that the Founding Fathers unreservedly left authority over tort law out of the hands of the national government when they drafted the Constitution and Bill of Rights? Does he agree with conservatives such as VA AG Ken Cuccinelli, Sens. Tom Coburn and Mike Lee, Tea Party Nation founder Judson Phillips, Tea Party Patriots leader Mark Meckler, and top anti-Obamacare legal experts such as Randy Barnett and Walter Olson, all of whom said last year that federal tort reform is an unconstitutional abridgment of states' rights and that tort law isn't an enumerated power for Uncle Sam under the Constitution? Will he see the folly of rewarding the AMA and their associated medical groups, who want to use an unlimited Commerce Clause to justify national healthcare as well as special immunity from liability for harmful medical errors? Does he now realize that trial lawyers and civil suits had nothing to do with the Wall Street crash, the housing bubble and its collapse, the BP oilspill, and that those actors in those types of scandals need to be held accountable before local juries as the Founders intended?

Let's hope we see the "New Newt" standing for open courtrooms and state sovereignty, not the "Old Newt" who sought unconstitutional legal protection for selected sections of American business.

That was how GOP Presidential candidate Ron Paul described the impact of federal tort reform law, in the face of the Founding Fathers' clear mandate to protect each state's authority over its civil justice system. He was discussing the need to protect states' rights in all circumstances during the Fox News/WSJ Presidential debate in South Carolina. Rick Santorum defended his support for a nationwide ban on lawsuits against gun manfacturers, and attacked Ron Paul's vote against that ban. Ron Paul stood on the high ground of the Constitution and the Tenth Amendment and never relinquished it. Here is the full exchange, copied from the Fox News Insider website:

SANTORUM: I've been a strong -- again, lifetime A-plus record with the NRA, worked with them. They came to me repeatedly when I was in the Senate to help them and -- and -- and sponsor legislation and work toward making sure in ensuring gun rights. Contrast that with Congressman Paul. And one of the most important things that we did in -- in -- in protecting the Second Amendment -- and I provided a leadership role on it -- was the gun manufacturers' liability bill. There were a lot of lawyers out there who were trying to sue gun manufacturers and hold them liable for anybody who was harmed as a result of the gun properly functioning. And we -- we went forward and passed, with the NRA's backing, a bill that put a ban on those types of lawsuits. If that ban had not been passed, if that gun manufacturer's liability bill, removing them from liability from that, had that not been passed, there would have been no gun industry in this country and there would have de facto been no Second Amendment right. Congressman Paul voted against that bill. And -- and that's a very big difference between someone who actually works with the gun -- Second Amendment groups for -- for legislation that can protect that right and someone who says they're for Second Amendment, has attacked me on my Second Amendment issues, which you just referred to, and here's a man that would have wiped out the Second Amendment by -- if his vote would have been -- carried the day.

BAIER: Congressman Paul?

PAUL: Hardly would that wipe out the Second Amendment. But the jurisdiction is obviously with the state. Even when tort law is involved with medical malpractice, which is a real problem, now, our governor worked on and our state has done a little bit on medical liability. I think that's the way it should be handled. You don't have -- you don't have national tort law. That's not part of the process. That should be at the state level. So to argue the case that that does away with the Second Amendment, when I'm the one that offers all -- all the legislation to repeal the gun bans that have been going on (inaudible) everything else. (APPLAUSE) I mean, I've introduced legislation like that. So that's a bit -- a bit of an overstretch to -- to say that I've done away with the Second Amendment.

SANTORUM: No, I need to respond to that, because the fact is, if we did not have a national liability bill, then people would have been able to go to states like, say, Massachusetts or New York and sue gun manufacturers where they would not pass a gun liability bill. So unless you have a national standard to protect guns --manufacturers of guns, you would create the opportunity for the elimination of guns being manufactured in this country and de facto elimination of the right to bear arms. (APPLAUSE)

PAUL: Well, this is the way -- this is the way our Constitution disappears. It's nibbled away. You say, well, I can give up on this, and therefore, I'll give that, and so eventually there's nothing left. But, no, tort law should be a state function, not a federal function.

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

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

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

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

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

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

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

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

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

During the Huckabee Presidential Forum on Friday night, Virginia Attorney General Ken Cuccinelli challenged Rep. Michelle Bachmann on the constitutionality of federal tort reform legislation. Cuccinelli promised weeks ago that he would sue the federal government if the Senate version of a federal medmal limits bill was ever enacted. Bachmann refused to recognize each state's right to run local and state courtrooms. Afterwards, in referring to Bachmann's performance, Cuccinelli said on the Fox News Channel, "On tort reform, I was really surprised she departed from the 10th Amendment position. And I went back and gave her a chance to clean that up. She stuck to it. It was more important to her to have tort reform across the country than to leave it to the states." It's clear that Ken Cuccinelli represents the real pro-10th Amendment position.

You can see the short exchange starting at 4:44 on this clip:

On November 16, I posted here about the opposition to federal tort reform by Judson Phillips, the founder of the influential Tea Party Nation group, who defended the 7th Amendment right to a civil jury trial. Mr. Phillips repeated his defense of the 7th Amendment, as well as the 10th Amendment, in a new letter to the Speaker and Majority Leader of the House. He advised the House leaders to avoid adding limits on awards in health care and medmal lawsuits to any bill preventing cuts in Medicare payments to doctors (the ''doc fix'' bill). Mr. Phillips generously agreed to allow me to post the entire text of the letter below. I urge 7th and 10th Amendment advocates to send this letter to the local Congressman and Senator.

The Honorable John Boehner
Speaker
U.S. House of Representatives
Washington, DC 20515

The Honorable Eric Cantor
Majority Leader
U.S. House of Representatives
Washington, DC 20515

Dear Speaker Boehner and Majority Leader Cantor,

The Doc Fix bill, to prevent cuts in Medicare payments to doctors, will soon make its way through the Congress. One of the things that some medical groups, such as the American Medical Association, want to include in it is federal tort reform.

I strongly urge you, on behalf of myself and many others in the Tea Party movement, to keep that provision out of the Doc Fix bill.

The Tea Party strongly supports the Constitution and the Constitution is very clear on this. Not only does the Tenth Amendment reserve these kind of issues for the States, the Seventh Amendment protects the rights of Americans to a civil jury trial. The right to a jury trial was so important to our founding fathers, it was included in the Bill of Rights, not once, but twice.

I wrote about this on my blog on the Tea Party Nation website a few days ago. I said:

"The civil jury system is a part of the free market. Our founding fathers thought enough of it to make it the 7th Amendment to the Constitution. Jury awards are a part of the free market. They do not exist in a vacuum. They not only compensate someone for an injury but like so many other parts of the free market, they act to deter bad behavior. If I am injured by a bad doctor or suffer some other type of injury or loss, I do not want the Federal Government telling me what my pain is worth. I want twelve citizens deciding justice for me. The right to a jury trial has a long and storied history in America and even further back in Britain."

Our founding fathers understood how well the free market worked. The free market is a fundamental part of liberty and freedom. To encroach on them through "tort reform" is an abuse of the Commerce Clause of the Constitution and clearly runs afoul of both the 7th and 10th Amendments to the Constitution.

"Tort reform" is simply a gift to a special interest group. The American Medical Association, which has been pushing tort reform, is not interested in the Constitution. They want to protect doctors. Of course, the AMA also supported Obamacare, which should tell us almost everything we need to know right there.

Health care in America is expensive, not because of Americans exercising their constitutional right to seek redress for injuries in court, but due to the destruction of the free market in the health care sector of the economy.

The AMA and the insurance companies have destroyed the free market. There is no competition among doctors. Without that competition, there is no market efficiency created. Just as you have in any other sector where there is no competition, prices are inflated and there is no pressure to bring them down. So after destroying the free market in health care, now they want us to listen to them on an issue that will have the net effect of stripping Americans of one of the constitutional rights our founding fathers thought were important enough to include in the Bill of Rights.

Americans are looking to the Republicans in Congress for leadership, not for capitulation to special interests.

Federal tort reform is a bad idea and it should not be included in the Doc Fix bill. It is unconstitutional and it is a bad idea. As with so many bad ideas brought up by liberal groups, it will not achieve its goal.

Sincerely,

Judson Phillips,
Founder, Tea Party Nation

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!

A second leader of a national and influential Tea Party group has joined the chorus of conservatives against any federal tort reform law. Judson Phillips, founder of Tea Party Nation, posted on the website yesterday that the jury system is part of the free market, and to interfere with the jury system violates the 7th Amendment to the Constitution. The website requires registration to read the post, but Judson generously allowed me to post a segment of his article.

"The free market is a wonderful system. It produces amazing efficiencies and amazing wealth. The free market system has delivered more prosperity to more people than any other system. There is another beauty to the free market system that many people do not think about. The free market system punishes bad behavior. If I open a business and decide to sell something that is a really bad product, people do not come to my business. I have the incentive to produce a really good product because that way people will want to come to my business.

The civil jury system is a part of the free market. Our founding fathers thought enough of it to make it the 7 th Amendment to the Constitution. Jury awards are a part of the free market. They do not exist in a vacuum. They not only compensate someone for an injury but like so many other parts of the free market, they act to deter bad behavior.

If I am injured by a bad doctor or suffer some other type of injury or loss, I do not want the Federal Government telling me what my pain is worth. I want twelve citizens deciding justice for me.

The right to a jury trial has a long and storied history in America and even further back in Britain.

Much as the Federal Government is overstepping its bounds by ordering Americans to buy health insurance, the government is also overstepping its bounds by telling citizens and states how much they can award in law suites and also telling lawyers how much they can be paid. (sic)

The free market is an amazing thing. It needs almost no intervention to achieve the right result, and the civil jury trial is an important part of the free market.

Take a moment to tell your Senators and Congressmen we do not need the federal government telling states what to do and trampling on another one of our constitutional rights."

This spring, Tea Party Patriots co-founder and national coordinator Mark Meckler voiced his opposition to federal tort reform on the grounds that it violates states' rights. "Most folks in the tea party movement would say those things should be dealt with at the state level," Meckler said. "It's not for the federal government to be adjusting the legal system of individual states."

It's great to see these two leaders of the popular movement to restore the primacy of our Constitutional rights forcefully reject the attempt to override state and individual rights. We need to bring these statements to the attention of every Member of Congress, especially the Republicans under pressure to enact federal tort reform.

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.

On October 31, I posted about the promise by Virginia Attorney General Ken Cuccinelli to veto a federal tort reform bill that is now included in the Senate GOP jobs bill. Attorney General Cuccinelli joined a long line of conservative legal experts in opposing federal tort reform as a violation of states' rights. In addition to violating states' rights, the Senate GOP jobs bill establishes federal wage controls on attorneys. Sec. 3206 of the bill, S. 1720, states:

"(B) LIMITATION- The total of all contingent fees for representing all claimants in a health care lawsuit shall not exceed the following limits:

(i) Forty percent of the first $50,000 recovered by the claimant(s).

(ii) Thirty-three and one-third percent of the next $50,000 recovered by the claimant(s).

(iii) Twenty-five percent of the next $500,000 recovered by the claimant(s).

(iv) Fifteen percent of any amount by which the recovery by the claimant(s) is in excess of $600,000."

Is this really the precedent that the Senate GOP wants to set while it complains about the unconstitutionality of ObamaCare, the excessive regulation of American industry by EPA, and the high tax burden faced by our corporations? Who wants to see the headline, "Senate GOP Talks Free Markets, Votes For Communism?" Were Democrats right after all when they wanted to enact laws against excessive compensation for Wall Street executives?

By the way, why would the Senate GOP reward "Big Medicine," which pushed ObamaCare and continues to back it against the GOP's efforts to repeal it? Whatever you think of the trial lawyers, they didn't work to enact the individual mandate - the AMA, AHIP, and PhRMA did. Why reward them with special federal immunity?

The Senate GOP should delete the entire tort reform section from their jobs bill before any floor vote.

In a Washington Post op-ed posted October 28, Virginia Attorney General Ken Cuccinelli promised to file suit in federal court against a federal tort reform bill should it become law. "And if it were ever signed into law -- by a Republican or Democratic president -- I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later)."

Attorney General Cuccinelli strongly objected to S. 197, a bill sponsored in the U.S. Senate by eight Republicans, which would impose caps on awards in health care-related lawsuits and install a federal wage scale for contingent fee attorneys involved in such suits. The bill was slipped into a Senate Republican "jobs bill" in October by Republican leadership without the knowledge or approval of numerous Republican Senators, just to appease the AMA and other medical groups clamoring for special federal protection from civil liability. Attorney General Cuccinelli, a rising star in the conservative community for his lawsuit against ObamaCare and assertive defense of conservative legal positions, emphasized the constitutional right of each state to protect and run its local civil justice system:

"With Senate Bill 197 -- legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award -- several Republican senators have reminded us that federal impositions on states that run contrary to the U.S. Constitution and to the spirit of federalism have never been the sole prerogative of just Democrats. As a state attorney general struggling to hold back a flood of impositions by the Obama administration that violate federal law, the Constitution or both, it is disappointing to see so many Republicans making the same types of mistakes that President Obama and his allies have made...

Senate Bill 197 takes an approach that implies "Washington knows best" while trampling states' authority and the 10th Amendment. The legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia's) against the individual mandate of the 2010 federal health-care law. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits. How does this sort of constitutional disconnect happen?"

Attorney General Cuccinelli's promise to sue is the most forceful of a series of conservative and Tea Party-side condemnations of the Senate bill and of federal tort reform legislation in general. The libertarian Cato Institute recently announced that caps on medical malpractice lawsuit awards would endanger patients and wouldn't reduce health care costs. The attorney who wrote the Senate Republicans' court brief against ObamaCare, Carrie Severino, publicly urged Republicans to remove S. 197 from the jobs bill before introduction, but they ignored her. Professor Randy Barnett, one of the counsels arguing the key anti-ObamaCare lawsuit in federal court, accused S. 197 backers of being "FINOs" ("Federalists in Name Only"). In May, Professor Barnett accused House Republicans who backed a bill similar to S. 197 of being "fair-weather federalists." Six conservative legal experts, including two who regularly criticize trial lawyers, joined Professor Barnett at that time in characterizing bills to federalize medical malpractice lawsuits as an unconstitutional violation of states' rights. The non-partisan National Conference of State Legislators joined them in a letter to House Republicans against the House bill.

The AMA and its allies in the medical profession have pushed the federal tort reform bills, just as they have backed ObamaCare with its equally unconstitutional individual mandate. For 30 years, they've used their political muscle inside the Beltway, and millions of dollars in political contributions across America, as the way to persuade Congress, especially Republicans, to enact special immunity from civil liability, regardless of the constitutional implications. Republicans will have to ignore the medical profession's misshapen view of Washington as the center of political power in order to protect our constitutional rights. Attorney General Cuccinelli's forceful warning might be the nail in the coffin of the AMA's dreams.

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.

Writing in National Review Online's "Bench Memos" today, conservative activist Carrie Severino criticized the Senate GOP leadership for including S. 197, the "MCAP Act," in the Senate GOP jobs plan, and urged them to drop it. "The law's own justification for its constitutional authority should be chilling to anyone committed to limited federal power... As Georgetown law professor Randy Barnett explains here, in a piece criticizing Republicans for their fair-weather federalism, '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.'.. I hope Senate Republicans will consider replacing or removing S.197 from their jobs bill."

Severino's conservative credentials are impeccable; she's a former clerk for Supreme Court Justice Clarence Thomas and appellate Judge David B. Sentelle, another conservative jurist. Her piece will have clout on Capitol Hill and reflects growing unease among Republican activists and legal experts over that section in the Senate GOP jobs plan. Hopefully the leaders will listen to her advice.

Sen. Chuck Grassley, ranking Republican of the Senate Judiciary Committee, wrote to the deficit reduction "Supercommittee" last week to recommend a number of measures for inclusion in its recommendations to Congress. On page 15 of his letter, he recommended inclusion of S. 197, which would mandate caps on certain health care-related damages awarded in any court in American, and create the first federal wage scale for attorneys in the history of the U.S. That bill was included in the Senate GOP jobs plan and inexplicably endorsed by self-proclaimed "states' rights advocates," even though it would wipe out all state-based civil litigation over health care disputes. As I wrote when analyzing the jobs plan and in my letter to the Supercommittee, such a bill is inconsistent with Republican opposition to ObamaCare and violates constitutional protections for states' and individual rights.

Sen. Grassley's support for S. 197 is also hopelessly inconsistent with his previously stated support for Americans to "have their day in court" when their rights are threatened. He challenged Supreme Court Justice Sonya Sotomayor on this point during her confirmation hearing over an eminent domain case, as follows:

Let me move on to the Didden case v. the Village of Port Chester. It raised serious concerns about whether you understand the protection provided by the Constitution for individual property rights. In this case, Mr. Didden alleged that his local village government violated his Fifth Amendment rights when it took his property to build a national chain drugstore.

At the meeting with the government agency, another developer, Mr. Didden was told that he could give the developer $800,000 or a 50 percent interest in his pharmacy project. And if Mr. Didden did not accept either condition, the government would simply take his property.

Two days after Mr. Didden refused to comply with these demands, the government began proceeding to take his land. The district court denied Mr. Didden his day in court, and your panel affirmed that decision in a five-paragraph opinion. Why did you deny Mr. Didden his day in court? How can these facts, in essence, allegations of extortion at least not warrant the opportunity to call witnesses to see if Mr. Didden was telling an accurate story?

Sen. Grassley also championed the rights of African American farmers who were discriminated against to have their claims heard. When a major farm bill was enacted in 2008, Sen. Grassley issued the following statement:

Senator Chuck Grassley, the original author of the Pigford Claims Remedy Act, today praised passage of the farm bill which includes funding to help African American farmers who were denied entry into the Pigford v. Glickman settlement. The farm bill will now be sent to the President.

"This is a tremendous step forward in our efforts to give black farmers and ranchers, who were unjustly discriminated against while trying to secure farm loans, an opportunity to have their claims heard," Grassley said. "We're putting in place a process where tens of thousands of African American farmers will be able to plea their case based on the merits. Not based on bureaucratic procedure and mumbo-jumbo."

What happened to that guy? Where is he now?

I agree with Sen. Grassley that every American should have his day in court to protect private property rights. One of the points of my work is to emphasize that the Founding Fathers created our civil litigation system to protect victims of infringement upon private property rights, gun owners' rights, and free speech rights - AND - medical malpractice victims and defective product victims. The Founders loved civil suits and never limited our access to civil justice - and I'll bet anyone the best dinner in DC on that point.

So why has Sen. Grassley flip-flopped on our rights and abandoned victims of health care negligence? No part of the Constitution, Bill of Rights, or the Founders' writings justify his turning his back on a medmal victim's day in court. What part of the founding documents of our democracy does Sen. Grassley not understand?

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've delivered a nine-page letter to the office of each of the 12 members of Congress who sit on the Joint Select Committee on Deficit Reduction, known as the "Super Committee" or "supercommittee." The Super Committee was formed through the debt ceiling deal reached in early August as the vehicle to identify at least $1.5 trillion in deficit reduction measures over the next ten years. The Super Committee is supposed to propose recommendations by November 23, and Congress will have a month to hold a straight up-or-down vote on its recommendations. If the Super Committee fails to reach an agreement, then under the debt ceiling deal, we'll see $1.2 trillion in automatic, across-the-board cuts.

I wrote my letter in response to a proposal submitted to the Super Committee by the AMA and other medical groups. They've urged the Super Committee to include a federal tort reform law similar to H.R. 5, the "HEALTH Act" introduced to sharply limit lawsuits against doctors, hospitals, drug and device manufacturers, health insurance companies, and nursing homes. "Big Medicine" continues to seek partial immunity from negligence and deadly errors through federal law, just as they sought to expand their patient base by pushing for ObamaCare. As I've written here many times, ObamaCare and federal tort reform laws suffer from the same deficiency: both are an unconstitutional abridgment of states' and individual rights, based on an dangerous interpretation of the Commerce Clause that would enable Uncle Sam to run our lives. Additionally, imposing federal limits on health care-related lawsuits won't make a dent in the federal budget deficit. Here are selections from the opening paragraphs in the letter:

I want to express strong objections to any proposal to include severe limits on health care-related lawsuits in your deficit reduction recommendations. First, such a proposal is unconstitutional as an abuse of the limited powers enumerated for the federal government in the Constitution. Federally imposed lawsuit limits would violate the right of each state to run its civil litigation system. Second, estimates by the Congressional Budget Office of "savings" as a result of the imposition of such limits are highly suspect and therefore should be ignored.

This year, a clear consensus has developed against federally imposed limits on health care-related lawsuits on constitutional grounds, as expressed by respected conservative legal experts such as Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Tom Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country. A lengthy discussion of the development of this consensus is instructive.

I then discussed the writings of all of those individuals and groups, all of which I have already posted here in my posts, Conservative Legal Experts Oppose 'Federal Tort Reform' and Even Tort Reform Proponents Oppose National Texas-Style Law.

I also discussed four deficiencies in the Congressional Budget Office's estimate of the budget savings that would result from federal limits on medical malpractice and other health care-related lawsuits. I posted about those deficiencies here in my post, Debt Reduction 'Supercommittee' Should Ignore CBO's Guesswork on 'Tort Reform'. CBO estimated savings of about $60 billion over ten years, which is less than 1/2 of 1 percent of the $1.5 trillion in the intended deficit reduction. In conclusion, I wrote, "Anyone betting on federal lawsuit limits to help us 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."

You can download my letter to the Super Committee here.

Nina Shea, longtime advocate for religious freedom worldwide, has an important revelation today about the nature of the new Libyan government: it's biased against Jews. That's not a surprise to anyone who's watched Libyan politics over decades and witnessed the anti-Semitism of the Qaddafi regime. But this group of Libyan "rebels" was supposed to be "different," maybe even "democratic." Uh, NOT:

"Yesterday, Libya failed a critical litmus test on freedom when it blocked exiled Libyan Jew David Gerbi in his attempt to reopen Tripoli's synagogue and forced him to flee the country... Libya's quest for freedom this Arab Spring does not apparently extend to religious freedom or even mere tolerance of Jews. The reason lies in the state-supported anti-Semitism that became a dominant national ideology in post-independence Libya and was institutionalized under Qaddafi... Virulent anti-Semitism may be the one constant in revolutionary Libya. It remains deeply entrenched even within the rebel forces."

So much for Springtime in Tripoli. Nevertheless, the Obama Administration is still apparently hellbent to turn over all $30+ billion in frozen Libyan assets to the Libyan Jew-hating terrorists, while upwards of 200 American victims of Qaddafi's decades of terrorism - people with serious, lifetime injuries - get the shaft from their own government. They were promised in law that they would receive a certain amount of compensation from Libyan assets, their claims have been officially adjudicated as valid by the Justice Department, and now they're getting letters from the Treasury Department - OUR Treasury Department - saying that they'll receive 20% and leaving the remaining 80% out there somewhere in space. Wonderful. Numerous Congressmen and Senators have written letter after letter urging the President and Secretary of State Clinton to "fix this," but no one in Foggy Bottom wants to upset the asset freeze deal with our beloved European allies, let alone open their eyes to the reality of the Libyan rebel-terrorists, over the valid claims of a few dozen of our own citizens screwed by the same people who insisted that the victims' compensation fund would solve everyone's problems.

Sooner or later Congress will have to do its normal job of putting Americans ahead of Europeans and Libyans, and enact a bill that transfers enough of the frozen Libyan assets to the fund to pay all valid claims. On July 19, I posted about the precedent for doing that in a bill enacted in 2000 , and I attached this legislative proposal for anyone in Congress who can take the ball and run with it. I hope it gets done sooner rather than later.

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.

An article in today's "Roll Call" newspaper, which covers Congress, discusses the extensive influence that Sen. Tom Coburn has over members of the debt reduction "supercommittee" charged with finding over $1 trillion in federal budget cuts ovr a ten-year period. It appears that Sen. Coburn's own "Back to Black" deficit reduction plan, which he released in July, is the basis for many pollicy proposals under consideration by the supercommittee.

That could be a positive development in the fight to protect each state's right under the 10th Amendment to the Constitution to run their own civil justice systems and each American's right under the 7th Amendment to seek a jury trial for civil suits, including medical malpractice lawsuits. Sen. Coburn's "Back to Black" plan doesn't call for unconstitutional federal tort reform in any way. Instead it relies on the states to manage their own legal systems, and specifically enables any injured patient to take a medical malpractice case to state court. Sen. Coburn also recognizes the terrible toll on patients as a result of deadly medical errors.

Sen. Coburn recommends that the federal government fund expert panels and health courts to resolve medical disputes, ideas implemented in some states and which do not, in practice, always protect a patient's rights. But it preserves the patient's right to access the state court system at any point; the state panels and health courts aren't a mandatory step. The Senator disagreed with federal tort reform solutions on constitutional grounds in an interview posted on June 30, and this plan is consistent with his objection. I'm not endorsing the plan, but at least it protects our constitutional rights from federal "tort reform" efforts.

In contrast, the American Medical Association and numerous medical groups are asking the supercommittee to squash our constitutional rights and grant total immunity to medical professionals from their errors. They sent a letter to the supercommittee that ignores the clear consensus against federal tort reform by respected conservative legal experts such as Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country. Rolling over the Constitution and Bill of Rights is nothing new for the AMA and most of their fellow medical lobbying groups, the co-conspirators in the enactment of ObamaCare, with its equally unconstitutional individual mandate to buy health insurance.

The Founding Fathers' insistence on individual liberty and state sovereignty over their legal systems means nothing to "Big Medicine." They're the walking definition of "Crony Capitalism" for continuously lobbying for national health care with total civil immunity. Limits in the Constitution on the enumerated powers for the federal government, and the 7th and 10th Amendments, are mere bumps in the road for the AMA and their cronies, which wants to interfere in local health care and tort law decisions so they can shape and manage our lives. There's nothing "constitutionally conservative" about federal "tort reform" laws which would ignore the Founding Fathers, shut down local juries, and deprive Americans of our unalienable rights. The supercommittee should reject these blatant attempts by Big Medicine, and instead seek real reductions in the federal deficit.

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.

Two important Republican leaders sent signs in the past week that they finally recognize that federal tort reform laws are an unconstitutional abridgement of the right to a civil jury trial and each state's right to run their own civil justice systems.

Rep. Paul Ryan gave an important speech recently at the Hoover Institution on his suggestions for reforming health care. I was pleasantly surprised to see him step back from his previous proposals for federal tort reform. In his Hoover Institution speech, he didn't mention limits on medical malpractice lawsuits or tort reform at all. Contrast this to Ryan's "Path to Prosperity," the basis of the House Republican budget resolution, which included caps on noneconomic damages from health care-related incidents. That proposal, the long-time centerpiece of the federal tort reform agenda, was condemned as "fair-weather federalism" by conservative legal experts, such as top anti-ObamaCare counsel Randy Barnett, and opposed even by two proponents of lawsuit limits, Walter Olson and Ted Frank.

Then former House Speaker and Republican presidential candidate Newt Gingrich released his new "21st Century Contract With America," with pages of new ideas for consideration by Republican voters. Early in his discussion of his legislative proposals, he states that replacing ObamaCare requires "lawsuit reform to stop the frivolous lawsuits that drive up the cost of medicine," repeating the myths perpetrated by medical groups to hide the cost of their own deadly errors and wasteful practices. But beyond that, he has no specific proposal, such as the unconstitutional "caps on noneconomic damages" cited by so many politicians. For Gingrich, who has been a longtime advocate of federal interference in state tort law, this is progress; it reduces the mention of "lawsuit reform" to the status of a throwaway line.

Too many wise conservatives who say they value the Constitution and Bill of Rights remain ignorant of the facts that (a) neither health care nor tort law are among the enumerated powers in the Constitution and (b) the Founders added the 7th and 10th Amendments as reinforcements against unlimited federal power. Maybe the silence of Rep. Ryan and Speaker Gingrich in their recent pronouncements are evidence that the facts are finally sinking in among Republican leaders out there on the campaign trail.

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.

Peter Orszag, President Obama's first director of the Office of Management and Budget, was one of the key figures in the enactment of ObamaCare, with its unconstitutional individual mandate and new government bureaucracy designed to order doctors to not cure us as they see fit. He must love the idea of sitting behind the Big Desk himself, signing off sweeping Executive Orders at a rapid-fire place, ordering Americans to do this and not do that. How else do you explain his bizarre penchant for writing that the panacea for the messiness of democracy is... less democracy? He wrote exactly this in an article titled, Too Much of a Good Thing for The New Republic:

To solve the serious problems facing our country, we need to minimize the harm from legislative inertia by relying more on automatic policies and depoliticized commissions for certain policy decisions. In other words, radical as it sounds, we need to counter the gridlock of our political institutions by making them a bit less democratic... But we need to confront the fact that a polarized, gridlocked government is doing real harm to our country. And we have to find some way around it.

Orszag attributes this polarization to the common, average American who has decided to not trust the mainstream media, and becomes "more radical" when meeting people "with similar opinions." And it's not the fault of "the elites," because according to some of his favorite political scientists, "polarization is not primarily an elite-driven phenomenon... Polarized politics are partly here, so to speak, by popular demand." No, the hatred for ObamaCare out there in fly-over land isn't Orszag's fault, it's just us "little people" who don't grasp the genius of all this "managed" health care.

Orszag is yet another ELITIST who blames AMERICANS for our political disagreements. He hides his hatred for Tea Partiers who revolt with his arrogant disdain for constitutional democracy behind the utterances of some equally arrogant, poli-sci psycho-babblers. During the Reagan years, we called people like this "Blame America Firsters."

And Orszag's prescription for ripping up our God-given rights and the Founding Fathers' vision of limited government? Hold on to your seat:

To solve the serious problems facing our country, we need to minimize the harm from legislative inertia by relying more on automatic policies and depoliticized commissions for certain policy decisions... we need to jettison the Civics 101 fairy tale about pure representative democracy and instead begin to build a new set of rules and institutions that would make legislative inertia less detrimental to our nation's long-term health...

Yeah, take it out of our hands, and build some bureaucratic dictatorial mechanisms. He wants "automatic stabilizers," like a progressive tax system and more unemployment insurance; and "more backup rules," like automatic spending triggers" when Congress doesn't do its job and pass appropriations bills on time (and note that the GOP House has been doing its job this year). Classic high-taxing big government by fiat.

And we need more "independent institutions" - you know, independent of the PEOPLE who would be ordered to do something - like that ObamaCare bureaucracy he created to dictate our health care decisions. And what about accountability to us? He sweeps that away by quoting another poli-sci "expert" who analogizes the New Bureaucratic Order to the unaccountability of Supreme Court Justices who decided on their own to legalize abortion. And we're supposed to accept MORE of that?!

Trashing the Constitution and Bill of Rights is a regular practice for Peter Orszag. Not only does he want Uncle Sammy to decide which health care we can receive and pay form and which we cannot, he wants to dictate which medical malpractice lawsuits we can file, and thus take over entire state court systems. He wrote an op-ed last year in the New York Times in which he wrote, "Lawmakers missed an important opportunity to shield from malpractice liability any doctors who followed evidence-based guidelines in treating their patients." Tort reform proponents slobbered all over it, trumpeting the Obama Administration's "conversion" to their hope for new federal powers over local juries, local judges, and local health care decisions.

Those fans of Orszag's tort reform proposal forgot, or purposefully ignored, the common thread between his ObamaCare and his medmal lawsuit limits: It would be the ORSZAGS of America who would make all the key decisions in both cases! The Orszag Elitists sitting in Washington will decide who gets the health care through ObamaCare, and the Orszag Elitists would also decide which "evidence-based guidelines" would be imposed to immunize doctors from their deadly negligence. Both are defended in lofty legalese under the Commerce Clause of the Article I of the Constitution, but patriots should know better.

Both ObamaCare and federal medical malpractice bills are based on the lust for federal power to override our decisions, made in the course of everyday life, including the judgment of twelve common, average Americans sitting in a jury box. When those decisions are made in the marbled halls of Washington, the lobbyists for the most powerful can sway a Congress, an Executive Branch, and a bureaucracy, and the people be damned.

Our Founding Fathers knew this and designed a federal government with limited enumerated powers precisely to avoid the Orszag Elitists from running our lives through ObamaCare or federal tort reform. This year, five conservative, anti-ObamaCare legal experts and two other experts who make a living criticizing trial lawyers agree that a federal medical malpractice law lies outside constitutional boundaries and is an unconstitutional violation of states' and individual rights.

Peter Orszag hasn't considered any of that and couldn't care less. He loves to play The Man Behind the Curtain, spinning the dials and twisting the institutions of American life. Our basic rights and our authority to run our own government are "harming Washington's ability to do the basic, necessary work of governing" and should be plowed under.

Remember the common danger between Orszag's ObamaCare and Orszag's tort reform: that lust for federal power.

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.