A Democratic Senator and a Republican Congressman have demanded, in separate hearings with General Motors executives, that GM drop its claim in federal bankruptcy court of civil immunity for injuries suffered from defects prior to the filing. GM's lawyers have recently asserted that in its 2009 bankruptcy filing, the sale of its assets to the government-backed "New GM" results in protection from liability arising from safety defects occurring before the filing, a claim which would prevent victims from exercising their constitutional rights to compensation.

During a hearing on the GM defects issues of the Senate Commerce Committee on July 17, Sen. Richard Blumenthal (D-CT) asked GM General Counsel Michael Millikin whether GM would drop that claim. After trying to duck the question, Millikin replied, "We will not."

That follows the questioning of GM President Mary Barra by Rep. Morgan Griffith (R-VA) on June 18 during a hearing of the House Energy and Commerce Committee. You can see that segment of the hearing on Rep. Griffith's YouTube page. He asked, "Ms. Barra - why are your lawyers still trying to seek protection in the bankruptcy court?" She refused to agree to drop the claim of immunity filed in bankruptcy court.

After the hearing, Rep. Griffith issued a statement with this: "GM may be entitled to bankruptcy protection, but don't tell us that you are going to take care of victims while simultaneously seeking a shield from the bankruptcy court from those same victims and their families. If GM truly wants to fully and fairly compensate everyone that's been harmed as a result of safety defect issues, GM's lawyers ought to stop asking the bankruptcy court for protection, and let these matters work their way through the normal channels."

Sen. Blumenthal and Rep. Griffith were experienced attorneys prior to entering public service, and Sen. Blumenthal officially represented the people of Connecticut as the state Attorney General. Here we have bipartisan agreement, from a conservative Republican and liberal Democrat no less, that the Americans who suffered from GM's dangerously defective cars should be entitled to exercise their constitutional right to bring their claims before a jury without GM hiding behind a change in corporate form. These two men realize that the civil justice system designed by the Founding Fathers is the appropriate forum for GM's victims to seek compensation. Hats off to them.

Today is a special day in the history of democracy and jurisprudence, the 799th anniversary of the sealing of the Magna Carta by King John at Runnymede in England on June 15, 1215. The document required King John to proclaim certain individual liberties, and accept that his will was not arbitrary, for example by explicitly accepting that no "freeman" (in the sense of non-serf) could be punished except through the law of the land. The Wikipedia entry describes it as "the first document forced onto an English King by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their privileges." Constitutional scholar Rob Natelson of the Independence Institute was invited to write the entry on the Magna Carta for the limited-edition Encyclopedia of the U.S. Supreme Court. He told me that he considers the Magna Carta as "Probably the greatest Anglo-American legal document of all." It's certainly the charter for modern democracy, the basis for eight centuries of British and American law (copied around the world), and the foundation for the U.S. Constitution and the Bill of Rights. The colonies in Virginia, Massachusetts, and Maryland especially sought to reflect various points of the Magna Carta in their early charters and laws. In 1957, the American Bar Association acknowledged the debt that American law and constitutionalism owed to the Magna Carta by erecting a monument at Runnymede.

British jurist Sir William Blackstone organized the 1215 version into numbered articles. Article 39 of the Magna Carta can be translated as, No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. It is this article that establishes and protects the right to a trial by local jury in criminal and civil cases, to protect all other individual liberties from the power of centralized government. The Founding Fathers studied the Magna Carta and knew the many instances in which the British had deprived them of their right. John Adams referred to it as "that fundamental law" when opposing the Stamp Act of 1765, and the deprivation of jury trials was among the grievances listed in the Declaration of Independence. George Mason, who refused to sign the Constitution because it didn't explicitly protect individual rights and the prerogatives of states, drew upon it for his writings, which eventually led to the enactment of the Bill of Rights.

All those who live liberty and cherish individual rights should raise a toast and a prayer today to those good people of England who stood their ground against King John's army and established the basis for self-government.

There's a good discussion in conservative circles about defining a new "conservative vision" in time for the 2016 Presidential election (while there is almost no fresh intellectual output among progressives right now, especially about health care). Too many conservatives are still pining for the Reagan Days, which were fabulous (I came to Washington as a political appointee during the Reagan Administration), but it's time to move on and redefine conservatism for today's America. But one right explicitly protected in the Bill of Rights, and described by the Founders as "sacred," seems to be missing from the discussion.

For instance, Yuval Levin, editor of the quarterly National Affairs, wrote, "A Conservative Governing Vision," for National Review on May 28. He noted that what matters most to conservatives is the relationship of the individual and the state, and the "mediating institutions" between us and the state, such as families, churches, the local community, and the economy. In contrast, Levin says that progressives "have always viewed those mediating institutions that stand between the individual and the government with suspicion, seeing them as instruments of division, prejudice, and selfishness or as power centers lacking in democratic legitimacy." Progressives, in his mind, tend towards increasing the power of Washington to clear away those institutions and order our lives through compliance with public policy goals and directives. Levin sees conservatives as "empowering and incentivizing people nearest to the problems to find and apply solutions that work for them. This still involves a crucial and active role for government, but it is a much less intrusive and managerial role."

While I agree with most of Yuval Levin's piece, there's one major flaw in his Left v. Right analysis: the Left embraces the more democratic, more local means of settling civil disputes through a jury of peers - the "mediating institution" designed by the Founders based on centuries of Judeo-Christian and British-American tradition. It's the Left that protects and promotes the right to a civil jury trial that is protected by the Seventh Amendment to the Constitution. Meanwhile, the Right has increasingly accepted and proposed limits on that right through various types of "tort reform," such as centrally imposed caps on damages or a "Loser Pays" system that the Founders rejected (a.k.a. "fee-shifting").

It's the Left that is fighting mandatory clauses in consumer contracts that force us into a secret and unfair arbitration process with the rules dictated by the business. It's the Right, pushed by its corporate partners, that pushed for and won recent Supreme Court decisions that transformed one law, the Federal Arbitration Act of 1925, into the most powerful law governing our rights in everyday commerce.

It's the Left that's citing states' rights to protect the right of state legislatures, state Attorney Generals, and individual Americans to bring civil suits in state courts against businesses for defective products, from pacemakers that can electrocute you to foreign-made drywall that can poison you. It's the Right that has pushed the pre-emption of states' and individual rights through the protection of defective products through federal approval by the bureaucracies of the FDA and the CPSC.

Certainly the Left isn't pure in its proclamations on constitutional rights - too many progressives are stuck in their own time warp and hypocrisies, using the power of the EPA to overrun local land use authority and pushing the new Consumer Financial Protection Board to interfere in our financial affairs and our privacy. And many of them are still hopelessly against the Second Amendment. But when it comes to protecting the Seventh Amendment right to a civil jury trial, the Left is way ahead of the Right.

Sad to say, none of the superstars in conservative politics, media, or think tanks write or say anything about the nature, history or importance of the Seventh Amendment. Sen. Rand Paul has periodically spoken eloquently about the importance of jury trials in general, but no 2016 Republican Presidential contender has joined him (while Sen. Paul's father, former Rep. Ron Paul, actively opposed federal tort reform). No conservative politician in America has written of the Seventh Amendment right to a civil jury trial as clearly as liberal Democratic Sen. Sheldon Whitehouse did last year at a seminar. The only place in conservative America where you'll see any promotion of the right to civil jury trials is on websites and opinion pieces connected to the Tea Party. Judson Phillips of Tea Party Nation, whom I've quoted often, is clearly the conservative commentator who best understands and defends the Seventh Amendment.

Yet the right to a civil jury trial is centuries old, established in British law by the Magna Carta, sealed 799 years ago on the plains of Runnymede in England, when peasants and farmers forced King John to recognize their basic human rights. And the right to restitution for civil damages and to be judged by peers is as old as Moses - literally - codified in the Book of Exodus. Early state constitutions written by the Founders described the right to a civil jury trial as "sacred," and James Madison described it "as essential to secure the liberty of the people as any one of the pre-existent rights of nature." It was the Seventh Amendment, not the First or Second, that was unanimously adopted by all of the states in the new United States. John Adams, Thomas Jefferson and James Madison - three of our first four Presidents - were crystal clear in their respect for civil jury trials, long before the drafting of the Constitution.

Why do modern conservatives who draft "vision statements" ignore a concept that was so obvious to the Founding Fathers? It not only isn't rocket science, it isn't even political philosophy.

So in order to claim a consistent high ground, any "conservative governing vision" should stand on the shoulders of the Founders and proclaim, fearlessly and loudly, that the locally based mediating institution of the jury of our peers is the principle upon which civil disputes will be resolved. All artificial barriers to the free exercise of that right in the form of damage caps, pre-dispute mandatory arbitration clauses, and fee-shifting mandates should be opposed. That right should extend to all courts and cases, state and federal, through the incorporation of the Seventh Amendment to the states. The Founding Fathers designed a civil justice system for suits over all cases and causes, from trespass to defective products. As veteran Republican Rep. John Duncan said on radio two years ago, "I have faith in the people - I have faith in the jury system... In fact, I can tell you, you have better regulation by juries than you have by federal government regulators - it's more effective."

There are hints and whispers of an awakening to the necessity for consistent fidelity to each of the ten amendments in the Bill of Rights in the writings of constitutional experts such as Randy Barnett, Rob Natelson, Ilya Somin and others, and in comments by some Republican Attorneys General. Yuval Levin joined Republican healthcare expert James Capretta in proposing an Obamacare alternative without caps on damages, one of a number of GOP-side plans without tort reform. But those are still timid first steps toward the defense of the Seventh Amendment that you can already find in the writings of the civil justice movement of the Left.

It's time for the Right to step out and take the high ground of the Bill of Rights.

Any conference that puts conservatives such as James Glassman, Fred Smith of the Competitive Enterprise Institute, Pete Sepp of the National Taxpayers Union, and Judson Phillips of Tea Party Nation with Jim Hightower, Medea Benjamin of CODE PINK, and Lori Wallach of Global Trade Watch is worth paying attention to, if for no reason other than to see if a fight breaks out. But Ralph Nader is doing that for the serious purpose of forging an "unstoppable" coalition to end Crony Capitalism, the special favors dished out by the federal government to cooperative businesses, usually of the large and politically powerful variety. It's the subject of his latest book and a recent article in, of all places, The American Conservative.

The "Unstoppable Right/Left Convergence Event" will be held on Tuesday, May 27, at the Carnegie Institute in Washington. The speakers will address issues such as corporate welfare, international trade, the defense budget and civil liberties.

Some of these participants are already working together on issues of common concern. For instance, Lori Wallach and Judson Phillips have already collaborated in fighting the Trans-Pacific Partnership trade treaty that I refer to as "Obamatrade" because, like Obamacare, it would be a largely secret and huge law that would enable bureaucrats to crush states' and individual rights. Lori Wallach criticizes the TPP's impact on collective bargaining, while Judson Phillips hammers it for overriding constitutional government and our rights.

I was honored to be invited by Mr. Nader to participate, but have a conflict. I hope the May 27 conference will be the first in a series and I look forward to participating in the future. And I hope constitutional conservatives will commend Ralph Nader for engineering this conference and trying to forge a new coalition.

On Friday, March 21st, Regent University School of Law in Virginia Beach, VA, will hold what might be the first conference in years (if ever) to discuss the potential for the incorporation of the Seventh Amendment right to civil jury trials to the states as a fundamental right. The conference is under the direction of Regent Law Prof. David Wagner, who has had a long successful career in teaching and in Washington policy circles. The other panelists so far are Prof. Paul Finkelman of Albany University Law School, a nationally recognized expert on constitutional law and constitutional history, and Sean P. Tracey of the Tracey Law Firm in Houston. I've already highlighted some of Prof. Wagner's pro-Seventh work; he previously wrote the first pro-civil juries piece in years in a mainstream conservative magazine (for The Weekly Standard), and wrote blog posts last year opposing federal medical malpractice limits and the House-passed patent reform bill with "loser pays."

Gun-rights advocates fought for forty years for the Supreme Court to recognize the Second Amendment as a fundamental right, and that is where Seventh Amendment advocates must head. That is the only way to guarantee the God-given right that the Founder cherished so much in the Constitution and Bill of Rights, even over the right to vote. Whether it takes four, fourteen or forty years, we have to start someplace. That's why we need to hold events like the Unity Summit, which starts today, and the Regent University conference.

I hope readers in the Norfolk-Virginia Beach area will be able to attend the conference, which begins at 6 pm in Robertson Hall at Regent Law School.

7thAmndmntIncorporated.jpg

Readers in the Southeast, especially in or near Jackson, MS, have a special opportunity to learn more about our Seventh Amendment right to a civil jury trial and how the Seventh Amendment supports the First and Second Amendments. On March 13 and 14, lawyers and legislators from around U.S. will come together at "The Unity Summit" to inform and educate all citizens interested in understanding and protecting our God-given and constitutionally protected rights. The Unity Summit will focus on our First Amendment rights of free speech and free exercise of religion, Second Amendment right to own and bear arms, and Seventh Amendment right to a civil trial by jury. Nationally known speakers will present and debate current issues such as the impact of the Affordable Care Act and IRS scrutiny of nonprofit organizations on First Amendment rights; the debate over the Second Amendment rights of students on college campuses; and the erosion of Seventh Amendment rights due to compulsory arbitration clauses in cell phone, car and other consumer contracts. You'll hear the Founding Fathers' own quotes on the importance of the civil jury trial to the very existence of democracy and the current legal trends, many of them unpublicized by the Mainstream Media, that threaten Seventh Amendment rights. And you'll be inspired by the service and sacrifice of a Iraq War veteran in a special presentation.

Every American of any political persuasion who cherishes the Constitution and Bill of Rights and wants a "deep dive" into current legal and political issues will benefit from attending the Unity Summit. You can register for it here. And please "Like" the Unity Summit Facebook page and send it and the website link to friends and followers.

I met this week with two of the top litigators in America for social conservative cases in federal and state courts. Both are involved in civil suits filed to fight the Obamacare contraception mandate and to defend state traditional marriage amendments. I discussed two bills recently passed in the U.S. House, and supported by Congressional Republicans, with a "Loser Pays" provision that forces the losing party in litigation to pay legal fees, which is used in courts in Europe to discourage litigation. The social conservative litigators are completely opposed to Loser Pays, and I urged them to take their objections public and to inform Republicans in Congress. Indeed, they told me that many of the Obamacare contraception cases they've filed - Hobby Lobby et al - would never have been filed if we had a national Loser Pays rule in American courts.

So why are they opposed to Loser Pays?

Loser Pays rules ensure that only the wealthiest plaintiffs can afford to undertake a civil action and also punishes individuals with serious and meritorious claims for seeking access to justice. Loser Pays rules fail to recognize that a person or a business can have a legitimate claim regarding fact and law, and yet still ultimately lose the case, sometimes on procedural grounds. In reality, for most individuals and small businesses, the financial risk of having to pay the other side's costs and legal fees is one too great to bear, no matter how meritorious the claim. Indeed, Loser Pays schemes create a chilling effect on plaintiffs with worthy, legitimate disputes, and hamper access to the courts.

Loser Pays rules overlook the fact that state and federal judges have full authority to issue sanctions, including awards of legal fees, if parties engage in wrongful conduct or waste judicial resources. Mandatory Loser Pays rules trample on this tradition of judicial discretion and would overturn states' rights to define their own civil justice rules.

From a purely political standpoint, Loser Pays hurts plaintiffs within the Republican base. Loser Pays rules hurt social conservative litigators, such as the Alliance Defending Freedom, ACLJ and the Becket Fund, as well as entrepreneurs who sometimes depend on the civil justice system. The Chamber of Commerce, which proposes Loser Pays laws in states across the country, and the business community don't represent those conservative groups and small businesses and won't protect them.

Of course, Loser Pays also hurts liberal nonprofit litigation groups, but many of those groups are already fighting Loser Pays bills in Congress and statehouses across the country. They need conservative groups to start warning Republicans, before the trend goes too far.

It's always great to find another Reagan Conservative who cherishes the Founders' ideal of civil jury trials, as protected by the 7th Amendment to the Constitution, and to see that support in a mainstream conservative publication. Like me, Prof. David Wagner of Regent University Law School was a political appointee in the Reagan Administration who later served as a counsel for House Republicans on a congressional committee. And Prof. Wagner, who teaches constitutional law and other subjects, knows the rich history of the 7th Amendment. He wrote about the importance of civil juries in the January 20 issue of The Weekly Standard in an article titled, "Who Loves a Jury? The Framers of the Constitution, that's who." It might be the first pro-civil jury piece in a mainstream conservative publication in many years. An excerpt:

"It seems the civil jury can't get no respect.

Although it's conservatives who most often make the case against civil justice excesses, the downgrading of juries in popular respect marks a huge, though almost unnoticed, divide between this generation and the Framers.

Ask most people today what is the most direct way they participate in government. They will probably say voting. And yes, the right to vote is in the constitutional text, although something of a latecomer, in various forms in the 14th, 15th, 19th, 23rd, and 26th Amendments.

But 81 years before the right to vote made its first appearance in the Constitution, the jury right in criminal cases was already included in the unamended Constitution (Article III, Section 2, paragraph 3), as it came from the Philadelphia Convention. But the convention declined to extend this right to civil cases. This alone lost the Constitution the votes of George Mason and Elbridge Gerry, and got the ball rolling on the movement for a Bill of Rights, either as a condition of ratification (constitutional opponents lost on that), or as a top item of business when the new government convened (they won on that; politicians kept promises in those days). And so a guarantee of jury trial in civil cases became the 7th Amendment.

In fact, 3 of the first 10 amendments mention juries: We have grand juries in the 5th, criminal petit juries in the 6th, and civil juries in the 7th. For comparison, the right to vote is nowhere mentioned in the Bill of Rights. A latecomer, as I said...

At first the Bill of Rights was binding only on the federal government, and to this day the 7th Amendment remains one of the provisions in the Bill of Rights that the Supreme Court has not fully applied to the states. The reason? No apparent need: The states themselves guarantee the civil jury right, and have done so since the Founding. Northwestern's Steven Calabresi and his fellow legal scholars have recently found that 12 of the original 13 states, representing about three-fourths of the population of the new United States of America, had civil jury provisions in their state constitutions at the time of the Founding, second only to provisions for the free exercise of religion."

Prof. Wagner has some concerns about flaws that he sees in the civil litigation process, but he warns against limiting the civil jury trial. "The civil litigation system is flawed along several fissures; juries are not the only ones, or the worst. Above all, they have countervailing, decisive civic, and constitutional benefits. At least our Framers, after debating the issue, came to that conclusion, and we are unwise to ignore their counsel." And he's criticized bills proposed in Congress to nationally limit medical malpractice damages.

Here's hoping more of my fellow conservatives realize the wisdom of the Founders and protect civil jury trials.

It would be hard to find the political positions on which conservatives such as former Congressman and retired Army Col. Allen West and Tea Party leader Judson Phillips agree with progressives such as Lori Wallach, director of the Global Trade Watch program at Public Citizen. So it's noteworthy that they agree that Pres. Obama's proposal for Congress to grant him fast-track authority to enact the Trans-Pacific Partnership mega-trade treaty could severely compromise our Constitutional rights to civil justice. Here are some quotes:

TPP would subject the U.S. to the jurisdiction of foreign tribunals under the authority of the World Bank and United Nations. These unelected, unaccountable panels would constitute a judicial authority higher than the U.S. Supreme Court. They would have the power to overrule federal court rulings and order payment of U.S. tax dollars to enforce the special privileges granted to foreign firms that would be exempt from EPA and other regulations that strangle American firms.

Former Congressman and LTC. Allen West (USA, Ret.), writing on the Breitbart website.

TPP sells out American sovereignty, making American laws inferior to rulings by the World Bank and other international bodies, such as the United Nations. Americans who do business with foreign corporations will find their 7th Amendment rights to a civil jury trial are abrogated; American law will not apply.

Tea Party leader Judson Phillips in his piece, Trans Pacific Partnership - Obamatrade - worse for US than Obamacare, in the Washington Times.

And, yes, once again Fast Track is the key: as the governments of the other TPP countries have come to realize that U.S. negotiators are at odds with Congress on many aspects of the deal, they are loath of make concessions that will expose them to political wrath at home. The only thing worse than trading away your population's access to affordable medicines, or submitting your nation to the authority of foreign tribunals that can demand unlimited payments from your national treasury, in exchange for the right to sell more dairy or sugar here is doing so and not getting your thirty pieces of silver.

Lori Wallach in Get Ready for the 2014 Trade Tsunami, on the Common Dreams website.

The Trans-Pacific Partnership trade agreement that Pres. Obama is pushing would override our constitutional rights to seek justice in our federal and state courts. This is international preemption of our laws - a real loss of sovereignty. It's the equivalent of a giant international forced arbitration process, with individual Americans' consumer rights crushed by a foreign tribunal. Constitutional conservatives and lawyers of all stripes should oppose this and tell Congress to resist it.

Col. West, Judson Phillips and Lori Wallach warn conservatives and progressives against first enacting fast-track trade authority, which would enable Pres. Obama to submit the TPP agreement to Congress for approval by a simple majority without amendment. All three understand the incredible impact that the TPP would have on American law and everyday life. Here's Col. West:

President Obama wants fast track power so he can conclude the Trans-Pacific Partnership (TPP), an expansive system of global governance that would deal a mortal blow to American sovereignty and our Constitution.

Fast track overrides the Constitution once -- the Trans-Pacific Partnership overrides it forever.

TPP is billed a free trade agreement, but it is actually protectionism for Wall Street bailout banks, insurance and drug companies profiting off Obamacare, and the corporatists pushing open borders and amnesty under the rubric of "immigration reform." The cronies with "access" in Washington are writing the deal while the rest of us are shut out.

Judson Phillips has another name for the entire process: Obamatrade. Fast-track and TPP are the Obamacare of trade treaties. Like Obamacare, the TPP has been drafted in secret with no Congressional debate, Congress would have to enact it for us to know everything it does, and it would override our constitutional rights.

But there's one big difference between Obamatrade and Obamacare: the Democratic Party is split over Obamatrade. Labor unions, environmental groups, and civil justice advocates on the left know their interests would be crushed by the TPP. They've pushed numerous Democratic Members of Congress into opposing, or at least not supporting, fast-track authority and the TPP.

As they say, politics makes strange bedfellows. It's time for conservatives to join with liberals to tell Obama to amend the TPP and submit it with full and open debate. Conservatives and progressives who cherish our independence and the Bill of Rights, including the 7th Amendment right to a civil jury trial, should heed warnings of these three experts and activists, contact Congress, and tell them to just say "NO!" to Obamatrade.

House Speaker John Boehner announced last week that House Republicans would decide on an Obamacare alternative health care plan to bring to the House floor for a vote. The Republican Establishment in D.C. is pushing a plan drafted by Republican doctors serving in the House, one section of which imposes federal medical malpractice limits to help... DOCTORS - not patients. Last year, the Republican doctors took over the task of drafting a health care plan for the House Republican Study Committee, a group of conservative Members that used to protect states' rights in its proposals and avoided proposals for a federal takeover of health care and state tort law. As I've written many times here, the legal experts who crafted the litigation strategy against Obamacare and advise House Republicans on the Constitution say that federal medmal limits of the type in the RSC bill are unconstitutional and accuse the GOP of being "FINOs - Federalists in Name Only." Rob Natelson, probably the chief legal expert in the growing movement for an Article V convention to reassert federalism principles, criticized the federal medmal caps section in the RSC bill in October. It's worth remembering that the Supreme Court agreed with Rob Natelson, Randy Barnett, and other anti-Obamacare experts in its 2012 decision on Obamacare that the law isn't a valid exercise of Congress' authority under the Commerce Clause.

Republican-side health care experts who accurately predicted Obamacare's failures and are advising House Republicans on an alternative don't favor federal medical malpractice limits either. Some recognize the conflict with the party's stated goal of protecting states' rights, and others know it really doesn't save much in health care costs (see my post here for examples). Here are some of the numerous plans - truly conservative, actually market-based alternatives - that House Republicans should consider to avoid the Cronyist, anti-federalism landmine in the RSC bill:

James Capretta & Kevin Dayaratna, Compelling evidence makes the case for a market-driven health care system on the AEI website;

Avik Roy, Obamacare - The End of the Beginning on National Review Online;

James Capretta and Yuval Levin, Unwinding Obamacare published in The Weekly Standard;

Thomas P. Miller, Conservative health care reform - A reality check and The end of Obamacare - Just the beginning of better health care both also on the AEI website;

The Heritage Foundation, After Repeal of Obamacare: Moving to Patient-Centered, Market-Based Health Care ; and

Rep. Paul Broun, M.D. (R-GA), H.R. 2900, the Patient OPTION Act

SEVEN conservative, market-based health care plans, all with great ideas, none with unconstitutional, hypocritical, cronyist federal medical malpractice limits. Let's hope House Republicans act according to principle.

Eminent legal scholar Rob Natelson, whose work on the inherent limitations of federal power has been cited often in recent Supreme Court decisions, "now writes that the Supreme Court's ruling last year on Obamacare renders a bill proposed by House Republicans to limit medical liability unconstitutional. To remind my regular readers, Rob Natelson is the Senior Fellow in Constitutional Jurisprudence for the libertarian-leaning Independence Institute in Colorado and an expert on the original meaning of the Constitution. He co-authored an important amicus brief on the "Necessary and Proper Clause" of the Constitution for the Obamacare case, which is cited by other anti-Obamacare legal experts. I've written often here on his work on the unconstitutionality of federal limits on damages in medical malpractice lawsuits. So his conclusion in his new work on the impact of the Obamacare decision on proposed federal medical liability limits should strike a serious blow to efforts to push the bill.

He analyzed Title V of H.R. 3121, the "American Health Reform Act" (hereinafter "AHRA"), and concludes that "for Congress to start micro-managing state courts and state juries should frighten anyone who cares about our American constitutional system." Natelson briefly describes the bill's key features: "The bill would rewrite personal injury law extensively--and not just in federal courts administering federal law. It would intrude on state courts applying state law. For example, the bill requires state judges and juries to adopt federal standards of proof, federal standards of guilt, federal damage rules, and federal deadlines. It imposes rules for attorneys' fees that override both state law and private contracts. It even mandates that some useful information be withheld from juries."

Natelson first points out that the Founders always intended "that state civil justice systems and tort law would remain free of federal control," and assertions that the Commerce Clause can be used to justify federal limits on medical liability are not based on original intent. "In 2011, I investigated the issue thoroughly, and reported my findings in a detailed paper entitled The Roots of American Judicial Federalism, available at http://constitution.i2i.org/files/2011/11/Roots_Am_Federalism.pdf... That paper showed that (1) a core reason the Founders fought the American Revolution was to assure local control of courts, (2) the Constitution was structured to achieve the same goal, and (3) leading Founders specifically represented--not merely once or twice, but again and again--that state civil justice systems and tort law would remain free of federal control. Despite a few half-hearted assertions to the contrary, the paper's conclusions have never been seriously challenged."

Natelson then discusses why the Obamacare ruling further precludes federal medical liability limits. He reviews the history of the "the other component of the Commerce Power," the "Necessary and Proper Clause" in Article I, Section 8, Clause 18. He then describes the limits on Congressional power in two important rulings:

"The leading Supreme Court case on the Necessary and Proper Clause is McCulloch v. Maryland. In that case, Chief Justice John Marshall also explained that the Clause did not grant to Congress any 'great substantive and independent powers.' Moreover, in Gibbons v. Ogden (the first great Commerce Power case) Marshall added that 'health laws of every description' were outside the federal sphere and exclusively reserved to the states. In other words, under the view of the greatest chief justice in American history, both Title V and Obamacare are utterly unconstitutional."

Natelson then quotes from Chief Justice Roberts' ruling that the Obamacare individual mandate violates the Necessary and Proper Clause: The clause "'does not license the exercise of any "great substantive and independent power[s]' beyond those specifically enumerated. . . . Instead, the Clause is merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant. . . . [T]he individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms."

Natelson then applies Justice Roberts' reasoning to the proposed federal override in the AHRA of state tort law, concluding that proposal is unconstitutional:

"Is control of the state court systems a 'great substantive and independent power?' You bet it is. The Founders clearly considered the judiciary a very important aspect of government, and the Constitution addressed it in detail. But while prescribing the rules for the federal courts, the framers deliberately omitted any federal role in the state judiciary... The Founders obviously deemed judicial organization and procedure to be a 'great and independent' subject, worthy of much constitutional attention. Yet in all procedural and organizational particulars, they left state courts alone. They certainly granted Congress no power to micro-manage them. They left the 'great substantive and independent power' of operating the state courts to the states themselves. Under Justice Roberts' opinion, that's where it stays."

Natelson adds that Chief Justice Roberts' additional ruling that the forced Medicaid expansion in Obamacare violates state sovereignty "buttresses" his conclusion. "As in previous cases, the Court held that 'commandeering' infringes core state sovereignty. Infringing core state sovereignty violates the Necessary and Proper Clause because a federal law attacking core state sovereignty is not 'proper.' A federal statute dictating to state legislatures, judges, and juries how they manage lawsuits arising under their own state law is of that kind."

And what of the section in the AHRA titled, "State Flexibility and Protection of States' Rights?" Natelson dismisses the title as "misleading" and determines that, "In other words, a state may be 'flexible' if it does what Congress likes, but not what Congress doesn't like."

Robert Natelson joins fellow anti-Obamacare legal expert Prof. Randy Barnett, who said after the SCOTUS Obamacare ruling that, "I will help lead that challenge if ever enacted, and I think we would actually have an easier time defeating that than defeating the (Obamacare) mandate... In fact, this court would strike that down (referring to federal medmal limits)... I'll be involved in the lawsuit."

Republicans who oppose Obamacare and truly intend to uphold the original intent of the Constitution should heed Robert Natelson's warning that they would be supporting an equally unconstitutional exercise of federal power over the states, and they should oppose the bill.

N.B. In recent months, supporters of federal limits on medical liability have pointed to a November 2012 paper written by Paul Clement, who presented the case against Obamacare before the Supreme Court, as proof that the federal liability limits are allowable under the Commerce Clause. However, in his paper Mr. Clement never discussed the impact of the Obamacare opinion on the issue of federal medical liability limits.

Two more movement conservatives have examined the new healthcare bill proposed by some House Republicans and oppose the section mandating federal limits on medical liability.

Ramesh Ponnuru, respected conservative author and columnist at National Review, wrote about the bill on Bloomberg. While he approves of many of the proposals in the bill as a replacement for Obamacare, he opposes the federal medical malpractice limits in the bill.

"And medical malpractice reform, as popular as it is among Republicans, shouldn't be done at the federal level. Medical torts have traditionally been regulated by states, and states have the incentive to set their policies on it the right way -- because their residents will pay the price if they don't."

This isn't the first time Ponnuru has opposed federal medmal caps; he's a consistent federalist. After Pres. Obama mentioned the idea in the 2011 State of the Union speech, Ponnuru dismissed it in two sentences: "Great: President Obama is open to one of the Republicans' crummiest ideas. There's no need for a federal takeover of medical-malpractice rules." (Emphasis added.)

Judson Phillips, founder of Tea Party Nation, continued his consistent defense of Constitutional rights in a post about the bill. His comments:

"With great fanfare, the Republican Study Committee unveiled a new plan yesterday to repeal Obamacare with "The American Health Care Reform Act."  One of the sections of the bill is designed to kill the bill.

That section is Title V of the bill, which is called "Reforming Medical Liability Law."  Translating that into plain English, it is tort reform

Under this section, the Federal Government will take control of state court systems and tell states what limits are imposed on medical malpractice lawsuits.

This law is bad on a number of fronts.  First, it shreds the Seventh Amendment of the Constitution. The Tenth Amendment of the Constitution specifies that the powers not given to the Federal Government are reserved to the states.  Tort law has always been reserved to the states.  This is just another federal power grab, this time authored by Republicans

The bill repeats the old claim that lawsuits are driving up the cost of medical care.  Texas has thoroughly disproved that theory.  Texas imposed draconian medical malpractice reform and what happened?  Medical costs have not dropped but if a doctor commits malpractice on you, good luck getting a lawyer to sue.  It is now almost impossible to get a lawyer to take a medical malpractice case in Texas."

He discussed the issue on the Mark McCaig Show, broadcast on Houston radio station KNTH AM1070 - here is the link to the podcast.

Two highly respected health policy experts and a conservative legal expert who served in the Reagan Administration have joined with the many health policy and legal experts who doubt the utility or constitutionality of federally imposed limits on damages in medical liability lawsuits.

Amitabh Chandra is Professor of Public Policy and Director of Health Policy Research at the Harvard Kennedy School of Government, and is a member of CBO's Panel of Health Advisors. He has testified before Congress, his research has been featured in media around the country, and he has received prestigious awards for his research. Among his many affiliations, Dr. Chandra is a Visiting Scholar at the conservative American Enterprise Institute. He has written numerous pieces on the cost of medical liability litigation and the outcomes of medical malpractice litigation.

So it might have been a surprise to supporters of federal medmal limits that on September 16, Dr. Chandra tweeted the following:

Dr. Chandra knows that even the CBO's flawed methodology for estimating the ten-year costs of federal medmal limits produces a miniscule result that doesn't save the taxpayers any money. In response to his tweet, I tweeted:

In late August, Dr. Chandra described the assertion that federal tort reform is "vital" as a "train wreck" in this tweet:

Dr. Chandra sides with many Republican-side health policy expert who realize the uselessness of federal medmal caps, one of whom is Thomas Miller, also of AEI. A former senior health economist for the Joint Economic Committee (JEC), Mr. Miller is the co-author of Why ObamaCare Is Wrong For America (HarperCollins 2011) and heads AEI's "Beyond Repeal & Replace" health reform project. He has testified numerous times before Congress on health policy issues.

Mr. Miller recently wrote, "Conservative health care reform: A reality check," in which he discussed numerous conservative policy measures that Republicans could propose to replace Obamacare. Throughout that piece, he never even mentioned federal medmal caps as an option. That's nothing new for Mr. Miller, who has repeatedly shunned federal medmal caps as a useless and anti-states' rights vehicle proposed by Republicans who should know better. Other Republican-side health policy experts, such as Jim Capretta and Avik Roy, also eschew federal medmal caps for the same reasons.

Then there's Prof. David Wagner of Regent University Law School, who served as a political appointee in the Reagan Justice Department and as a Republican counsel on Capitol Hill, and his opinions on constitutional law have been published in numerous newspapers and journals. Prof. Wagner wrote last week that a new healthcare bill proposed by some House Republicans includes alternatives that are, "from a standpoint of principled federalism, a disheartening thing to watch." That bill, H.R. 3121, includes the old, tired cliches of federal medmal caps and a national salary structure for attorneys - stuff that's been panned by the Randy Barnetts & Rob Natelsons of America for years. Prof. Wagner even used Randy Barnett's favorite term to describe the Republicans who leave their allegiance to states' rights at the courthouse door: "In moving it forward, though, I hope this particular GOP House, which took over the majority in January 2011 with claims of unprecedented concern for constitutionality of legislation, will ask itself questions about 'fair-weather federalism.'"

Republicans who co-sponsor H.R. 3121 are just proving that they don't have serious, fresh, truly conservative ideas to replaces Obamacare, just the same old same old.

On the tenth anniversary of the enactment of "tort reform" in Texas that dramatically limited damages in medical malpractice lawsuits, Gov. Rick Perry was shocked that anyone could doubt the law's success. "I'm just continually surprised that some people still want to argue that tort reform didn't work." That's because Gov. Perry is only looking at the impact on doctors. He doesn't care about the impact on patients or the millions of other Texans

Doctors in Texas now have lower medmal insurance premiums to pay and face sharply reduced risks of being held accountable for their negligence. The doctors are doing just fine.

The patients? Not so good. The cap on damages and new expert-witness rules sharply reduced the ability of a law firm to handle a medmal case for years, fronting the costs of preparation and litigation, and to find an expert who would qualify as a witness in court. Lawyers are simply turning away many cases that might have been filed prior to 2003.

Moreover, the basic promises of the proponents of the medmal limits have never been met. They promised more access to health care, more doctors, and lower health care costs. But an objective study by respected academicians show no positive impact on the number of doctors. Even a leading critic of the plaintiffs' bar declared that he would no longer claim that the Texas law increased doctor supply.

And even the most fervent supporters of the Texas medmal law won't claim that it bent the healthcare cost curve. Their costs haven't stopped climbing at all. The doctors just pocketed the savings in insurance premiums.

And worst of all, the doctors' reduced risk of malpractice liability means Texans are at higher risk of suffering from deadly medical errors. Doctors moving into Texas didn't have to worry about extensive background checks, because the state licensing board didn't bother to conduct them for years.

All this led a nationwide Tea Party leader, Judson Phillips of Tea Party Nation, to slam the Texas tort reform myth and warn Americans that we risk losing precious rights protected by the 7th Amendment.

All this is lost on Rick Perry. But of course we already know that he's not very good and recognizing and remembering facts, don't we?

Jenny Beth Martin, President and Co-Founder of the powerful Tea Party Patriots group, is planning a massive anti-Obamacare rally on September 10 in Washington. She's trying to persuade House Republicans to defund Obamacare in any way possible, including in a debt ceiling bill or continuing resolution to fund the government. Speaker Boehner and House Republican leaders have another idea for health care "reform," and it would actually protect the doctors and other medical professionals whose lobbyists in DC fought for Obamacare and profit from it.

Speaker Boehner is still hellbent on enacting federal law to protect pro-Obamacare doctors, hospitals, drug and medical device companies and nursing homes from their negligence. Before the August recess, he told House Republicans that he wanted to spend time this fall on "GOP proposals to help end costly junk lawsuits and curb defensive medicine by enacting medical liability reform." That sounds like the caps on lawsuit damages that Boehner supported in a bill he pushed in 2011, when he combined it with an anti-Obamacare bill to ensure approval by the Republican conference.

But Jenny Beth Martin opposed Boehner's bill two years ago to protect pro-Obamacare doctors, because she knew that the bill was an unconstitutional infringement of states' rights.

In a blast email that she sent to followers and to Congress, Martin wrote the following:

The malpractice reform will affect not only federal law but also state law. It would take the authority to create tort law (i.e. medical malpractice) from the state and hand it over the federal government. This is an outright violation of the 10th Amendment...

The malpractice reform contains two components that are troubling. The first is that it is federal malpractice reform, even though tort law is supposed to be made at the state level. Second, not only will it affect federal law but, it goes a step further and overrides existing state law! This brings to light a new unconstitutional overreach by the federal government, violating our core value of constitutionally limited government.

Jenny Beth Martin stands with top libertarian and conservative legal experts such as Randy Barnett, Rob Natelson, John Baker, Ilya Somin and Carrie Severino, and with real Constitutional conservatives such as Reps. Ted Poe and Louis Gohmert and Sen. Mike Lee. She defends states' and individual rights against federal encroachment and Crony Capitalism.

I have no doubt that if Speaker Boehner demands that House Republicans vote again to crush state sovereignty in medical malpractice issues, Jenny Beth Martin will again oppose it.

House Majority Leader Eric Cantor supports his fellow Virginia Republican, state Attorney General Ken Cuccinelli, in the election to be the next Governor, and is headlining a fundraiser for Cuccinelli this week. But the two don't agree on the constitutional limits on Congress' power to override state tort law.

Two years ago Attorney General Cuccinelli publicly opposed any attempt to enact federal limits on damages in medical liability lawsuits. He was reacting to a bill proposed by Senate Republican leaders that mirrored a House bill backed by Speaker Boehner, Majority Leader Cantor, and some other House Republicans.

"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."

Cuccinelli wrote that the Commerce Clause doesn't enable Congress to enact either Obamacare or federal medical liability damage caps.

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?"

And Cuccinelli warned that he would quickly go to federal court to try to block the Senate, or Cantor's, federal law capping damages. "This legislation expands federal power, tramples the states and violates the Constitution. 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)."

Cantor is still pushing that bill, and Speaker Boehner told House Republicans last month that he still wants to do something about "medical liability reform." So when Cantor uses the fundraiser to laud Cuccinelli's effort to fight Obamacare, maybe the Attorney General will take the opportunity to remind Cantor not to push for an equally unconstitutional bill to override state authority.

Yesterday, the American Freedom Law Center (AFLC) filed a new lawsuit on behalf of several Catholic organizations in federal court, challenging the final regulations enforcing the Obamacare contraceptive services mandate against religious organizations. Last year, I discussed in numerous posts the lawsuits filed by religious organizations seeking to overturn the regulations prior to their final release. Faith-based groups and their allies across America are protesting the Obamacare-based mandate to force the provision of abortion-inducing drugs and devices through health insurance policies. If successful, the mandate would serve as the template for Uncle Sam to define any religious organization as it sees fit, and to dictate hiring, financial, and all organizational decisions.

AFLC is one of the groups I informally call the "Trial Lawyers For Religious Liberty," along with the Alliance Defending Freedom, Becket Fund for Religious Liberty, the American Center for Law and Justice, and Liberty Counsel. These groups, usually allied with social conservative activists and politicians, file civil suits to defend religious liberty and other freedoms protected in the Bill of Rights.

And they often request jury trials for their lawsuits, as is their prerogative under the 7th Amendment. When over 40 Catholic organizations sued to block the mandate, they cited Federal Rule of Civil Procedure 38: "Pursuant to Rule 38 of the Federal Rules of Civil Procedure, the Plaintiffs hereby demand a trial by jury of all issues so triable." That rule begins as follows:

"(a) RIGHT PRESERVED. The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate."

Some of these cases await a ruling to proceed, while others were dismissed over procedural issues. Personally, I would love to see a jury of Americans hear these cases and decide on the merits.

The Founding Fathers designed a civil justice system, rooted in the right to a jury trial for civil suits, for all cases and causes. Whether for religious liberty, property rights and free speech rights, or for medical malpractice and products liability claims, all civil claims are treated equally under the Founders' grand design. They would never have supported a "tort reform" movement that seeks to protect doctors and hospitals from deadly negligence, because they knew that abridging Constitutional rights for some endangers the rights of all Americans.

Lots of Congressional Republicans profess allegiance to federalism and the protection of states' rights enunciated under the Tenth Amendment, as well as to protecting First and Second Amendment rights. But when industry associations look for special deals so they don't have to be held accountable, too many Republicans catch "immunity disease," support bills that violate states' rights, immunize whole industries from civil litigation, crush our Seventh Amendment rights and expand the federal government's power over our lives. These Republicans morph before your eyes from Federalists into Crony Capitalists. Two examples tell the story.

1. S. 1009, the "Chemical Safety Improvement Act"

S. 1009, the "Chemical Safety Improvement Act," is a proposal to supposedly "modernize" and "update" the Toxic Substances Control Act (TSCA), the federal law governing the regulation of toxic substances such as formaldehyde, asbestos and lead. But this 127-page bill gives new and frightful powers to the EPA and the chemical industry to strangle the constitutional rights of average Americans. It's actually the result of a combo of Crony Capitalism and Enviro-Wackoism, mixed in with Democrats' sympathy for a dead colleague. It's the late Sen. Frank Lautenberg's last bill, and some Democrats signed onto it just out of respect, without actually reading it - I know this for a fact. But some pro-industry Republicans are lining up for it without concern for states' or individual rights.

The bill gives broad new powers to the EPA Administrator to "promote innovation and sustain a globally competitive chemical industry in the United States." Have Republicans forgotten EPA's "Cross-State Air Pollution Rule" that threatened power plants, or EPA's attempts to shut down boilers and cement plants? Why would Republicans now think that the Obama EPA will "promote competition?"

Under Section 4, the EPA will force industry to provide business-sensitive data and information through the use of what the bill calls "voluntary agreements." Does Uncle Sam ever make us do anything "voluntarily?!" If a company doesn't "volunteer," will they get raided like Gibson Guitar, or see the Obama IRS knocking at their doorstep? Haven't we had enough snooping?

The EPA would have the sole authority to define what constitutes the "best evidence" and a "safety standard" that would then be forced upon any dissenting state, company or individual in a local agency or court case. Right now, state legislatures and courts can use studies from different sources to regulate the toxic substances covered by this bill. That will end under S. 1009; the states would be forced into accepting the EPA's decisions. So much for the Tenth Amendment.

That led the nonpartisan National Conference of State Legislators to object to the chairman and top Republican of the Senate committee with jurisdiction over the bill. "However, NCSL cannot support any reform of TSCA that preempts state regulations in this area. Section 15 of the bill entitled "Preemption" is a broad state preemption provision that adversely impacts states' abilities to protect their citizens."

Finally, if the EPA takes any action on any chemical under this bill, American consumers injured or killed by a toxic chemical would be effectively banned from suing the company based on state tort law. Section 15 of the bill states that no state may create a new, or continue to enforce an existing, restriction on the manufacture, processing, distribution, or use of a chemical after EPA completes a safety determination for that chemical. When the EPA completes a safety determination for a high-priority substance under Section 6, that safety determination becomes: 1) admissible in state and federal courts, and 2) "determinative of whether the substance meets the safety standard under the conditions of use addressed in the safety determination." Not only does this provision strip away the power of state judges to determine relevant evidence in their own courtrooms, it would grant total immunity from state tort law claims for any chemical that the EPA has determined to be "safe." Even when the EPA doesn't act on a specific chemical, the presumption will be that the chemical is safe.

Instead of overriding state law, Congress should retain state-law based causes of action and ensure that injured parties can be compensated by negligent chemical manufacturers for their injuries. Moreover, if state tort law is preempted, chemical companies will not have the same incentives to ensure their products are safe.

Too many Republican Senators who claim to be "Constitutional conservatives" are co-sponsors of S. 1009. Even Sen. Mike Crapo, who normally acts to protect Seventh and Tenth Amendment Rights, signed up for this bill. Fortunately, it appears that the House GOP is in no mood right now to expand the power of the EPA, override states and endanger our rights in this area.

That doesn't mean the House GOP has rid itself of the "immunity disease."

2. H.R. 2300, the "Empowering Patients First Act of 2013"

Republican Rep. Tom Price, M.D. has proposed H.R. 2300, the "Empowering Patients First Act of 2013," as an alternative to Obamacare. In previous Obamacare alternatives, Dr. Price has proposed unconstitutional federal limits on damages in medical malpractice lawsuits, but those are not in this bill. While it's encouraging to see that he doesn't propose federal caps on medical malpractice damages in the bill, there are still Seventh and Tenth Amendment issues in at least two sections in the bill.

Section 502 would authorize the HHS Secretary to award grants to States "for the development, implementation, and evaluation of administrative health care tribunals," a new set of courts devoted solely to resolving health care disputes. And the section stipulates the qualifications of the members of the tribunals and interferes with the decisions of state judges now operating under state law. Is Dr. Price seeking to immunize medical professionals from negligence by substituting "expert opinion" for the decision of a jury of the plaintiff's peers, the system the Founding Fathers protected? What section in the Constitution gives Congress the authority to create these courts and dictate their makeup? Why should Republicans encourage the creation of another court system in each state and then tell the states who can serve on the court? Why would we Republicans use federal law to take the authority to decide these cases out of the hands of local juries? Since when do Republicans turn disappointment over "unjust" jury verdicts into federal law overriding state law and courts? And why do health care professionals deserve their own set of courts when they're sued? Why not teachers or first responders or some other special profession?

Section 503 states orders that certain payments in excess of $50,000 "in any health care lawsuit" should be made in accordance with the Uniform Periodic Payment of Judgments Act promulgated by the National Conference of Commissioners on Uniform State Laws. Again, which section of the Constitution authorizes Congress to so order payments in a state court case to be made that way? And why would Republicans ignore each state's established procedure for payments and a jury's damages determination in court decisions? And again, why do "health care lawsuits" deserve special treatment over lawsuits over other decisions?

Again, some Republicans who pride themselves on protecting states' rights, such as Rep. Rob Bishop, have mysteriously co-sponsored this bill, perhaps thinking that a bill without federal caps honors federalism and individual rights.

These and other bills expand federal authority in ways the Founding Fathers never envisioned. And for some reason, some Republicans (not all) still don't realize that by overriding state law and courts, they invite Democrats to do the same for their agenda - Republicans play right into Democrats' hands. Republican arguments for preemption of state law, based on Commerce Clause rulings by the Supreme Court starting with Wickard v. Filburn, led eventually to the enactment and defense of Obamacare.

Republicans have to reject the "immunity disease" that leads to Crony Capitalism and a bigger federal government.

Sen. Mike Lee (R-Utah) has consistently asserted that Congress has no constitutional authority to enact national limits on damages awarded in medical malpractice lawsuits. In November 2011, he was the only Senate Republican to not vote for a Republican "jobs bill," and he explained his stance at the national convention of the Federalist Society (video here). Here is a transcript of his remarks:

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.

In March, Sen. Lee again stood for state sovereignty over medmal lawsuits when he voted against a proposal by Sen. Rob Portman (R-OH) to enact federal medmal limits within the Senate budget resolution.

And now Sen. Lee has put it in writing this summer. He recently released a book about the Supreme Court's ruling in the Obamacare decision, in which he writes, "Although most healthcare-related policy issues -- everything from laws governing the licensing and regulation of doctors, nurses, hospitals, and clinics to laws governing medical-malpractice suits -- reside properly with the states, there are things that Congress could do, consistent with principles of federalism and limited government, to make healthcare more accessible and affordable throughout America."

Sen. Lee is a Real Federalist, not a phony, hypocritical "FINO," or Federalist In Name Only, as Prof. Randy Barnett calls those self-proclaimed "constitutional conservatives" who trample on states' rights for special protection for the pro-Obamacare medical professionals. Sen. Lee stands with Prof. Barnett, Ken Cuccinelli, Sen. Coburn, Rob Natelson, Carrie Severino and other legal experts against FINOs such as Michele Bachmann and House GOP leaders, and Sen. Lee deserves our support and admiration.

A new decision by a federal judge in a medical malpractice case raises the specter that many state caps on civil tort damages protect abortion butchers like Dr. Kermit Gosnell from full accountability before a local jury. A better name for many state caps on civil damages, and any federal cap, would be "The Dr. Gosnell Abortion Butchers Civil Protection Act."

Here's the case on point from Mississippi, in which a federal judge reluctantly upheld state medmal caps in the case of a mother and her unborn child killed by malpractice. The judge took the opportunity to sharply condemn the state-imposed cap on civil damages. Quoting from the story:

The ruling came in a wrongful death lawsuit filed by the family of a woman and her unborn baby who died after being denied potential lifesaving treatment at a hospital on the Choctaw Reservation in Neshoba County.

U.S. District Judge Carlton Reeves applied the caps in the case, finding that his hands were tied and the Mississippi Supreme Court would likely find the caps constitutional.

But Reeves found fault with the caps and what he perceived as their unfairness.

"All grief is not equal. All pain cannot be reduced to a one-size-fits-all sum. In Mississippi, though, one's suffering at the hands of a health care provider is worth no more than half a million dollars, no matter how egregious, and no matter if your suffering leads to your death, your unborn child's death, and leaves your children orphans. This is offensive," Reeves wrote on June 13 in upholding the limits.

The case was decided in federal court because the alleged malpractice took place at the Choctaw Health Center, on the reservation of the Mississippi Band of Choctaw Indians. The Choctaw Health Center operates under rules of the U.S. Department of Health and Human Services and the Indian Health Service, so the suit was filed by the family against the U.S. government. But the federal rules require that the judge apply state law, so the judge had to enforce the Mississippi cap on damages.

The case proves that in states with caps on damages, medical malpractice suits brought by families against other abortion butchers, as well as against other dangerously incompetent doctors and medical professionals, could be severely limited in impact. The Dr. Gosnells of America would be allowed to keep much of the "blood money."

So it's time to tell those professed pro-life politicians in state legislatures, Governors' mansions, and Congress to start peeling back laws capping civil damages, at least in cases involving the unborn and their mothers, and to resist any calls for a new federally imposed mandate to cap civil damages.

It's time to repeal the "Dr. Gosnell Abortion Butcher Civil Protection Acts" around the country and time to protect the unborn and mothers, and all patients, from deadly medical malpractice.

Haven't we had enough snooping into our private records by the government and its agents in the private sector? If you live in Florida, there could be more on the way.

A new Florida law invites snooping into private medical records. The law, enacted as S.B. 1792 and designated as Chapter 2013-108 of the Laws of Florida, went into effect yesterday, July 1. It enables defendants in medical malpractice cases in Florida to contact the health care providers of the victims and demand the unlimited release of personal health information, and all without the victims' consent. So if you want to file a malpractice lawsuit in Florida and you have any embarrassing information in your medical past, you better be prepared to see it released to the public in an open courtroom.

The geniuses in the Florida legislature and Governor's Mansion who thought this up apparently want to protect bad doctors, hospitals, clinics, and nurses from the consequences of their negligence.

One little problem for them: their special protection scheme might violate federal law.

Do the initials "HIPAA" mean anything to you? Unless you haven't been in a doctor's office or hospital anytime in the past decade, you've heard of it. It stands for the "Health Insurance Portability and Accountability Act," and that law requires medical providers to protect patient information and use that information only for treatment, payment, and healthcare tasks. Under HIPAA, your medical providers cannot disclose your private medical records unless they're subpoenaed, demanded through a discovery request in a civil suit, or through some other judicial order. HIPAA expressly overrides state law, unless the state law grants even more privacy protection than HIPAA.

The Florida law doesn't provide for any judicial order and doesn't mandate a subpoena - it just allows the lawyer for the medical provider to harass the victim's medical provider into turning over the victim's private records.

Five lawsuits have been filed in state and federal courts in Florida to declare that law invalid. Here's one of the lawsuits, filed in federal court in West Palm Beach.

And remember that the Founding Fathers designed the civil justice system, in part, to protect us from a government that oversteps its boundaries, violates our rights, and gives special favors to a few at the expense of the rest of us. There's no reason for Florida to give the defendants in medical malpractice cases a key to open the door to some of our most sensitive personal information.

If you live in Florida, call your state representative and senator and demand that they repeal S.B. 1792 NOW.

What could a libertarian, anti-Obamacare Tea Party-type Senator like Rand Paul have in common with a liberal, pro-Obamacare ACLU-type Senator like Sheldon Whitehouse? At least now we know one thing: they know and cherish the fact that the Founding Fathers designed the civil justice system, rooted in the 7th Amendment right to a civil jury system, for the powerless to challenge the Bigs of America.

Sen. Paul wants to file a class action lawsuit to protect millions of average Verizon customers and various internet users against Big Brother over the NSA spying regime (legal activist Larry Klayman has already done so). I guess Sen. Paul would now oppose any effort by the "tort reform" movement to stifle our ability to file class action lawsuits.

And Sen. Whitehouse wrote an outstanding piece this week on "The Dwindling Civil Jury," much of which could have written by Sen. Paul as well. He summarized the development of our right to a civil jury trial and the modern challenges to that right, especially those decided in favor of Big Business. Here's a segment:

The jury is more than just a means of dispute resolution, just a fact-finding appendage to the court. It is a structural element of our system of separated powers. Alexis de Tocqueville described the civil jury as an "institution of government" and a "form of the sovereignty of the people." The civil jury, according to William Blackstone, "preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens."

The earliest American settlers established juries by 1624 in Virginia, 1628 in Massachusetts, 1677 in New Jersey and 1682 in Pennsylvania. Civil juries provided a means of self-government to early Americans as they chafed under colonial rule, and efforts to deny that right helped foment the American Revolution. Americans sounded the alarm when the original Constitution was silent on the civil jury, and the Seventh Amendment -- which protects the civil jury -- was ultimately sent to the states with the Bill of Rights.

The civil jury remains an important political institution. It provides a forum in which all citizens stand equal. It further distributes power in our divided government, vesting citizens with the authority to resolve disputes among themselves. It is a bulwark against judicial autocracy, thus providing what Alexander Hamilton called a "security against corruption." It fosters civic engagement and education, serving as what de Tocqueville called "a free school which is always open and in which each juror learns his rights." It is immune from the traditional exercises of political influence. Finally, it strengthens the fabric of our democracy by bringing Americans together to deliberate on questions that are important to the well-being of our communities.

We can learn much from these two Senators who defend the basic principles of civil justice and God-given rights protected by the Founders, such as John Adams, Thomas Jefferson, James Madison and George Mason. We need more of this type of bipartisanship in Washington.

Like many of you, I come from a family in which someone has proudly served our country in war, so I take veterans' health and civil justice issues very seriously. On Memorial Day, we'll honor vets in our families and across the country with parades, special ceremonies and prayers in thanksgiving for their sacrifice. So it really bothers me when I see Congress and state legislatures across the country dishonor veterans by diluting their right to compensation for injuries endured while serving, or by compromising their medical privacy. Yet that's what's happening in Washington and across the country to the veterans who suffer from asbestos-induced disease such as mesothelioma. Veterans groups are just now beginning to realize the potentially lethal result, and they're getting organized in opposition.

The asbestos issue is important to veterans because although they comprise only 8% of the US population, they account for nearly 30% of all mesothelioma deaths nationally. If you served in the U.S. Navy before the mid-1970's, you were likely exposed to asbestos aboard a ship. During and after World War II, asbestos use in Navy ships and other armed forces applications greatly expanded as the asbestos manufacturing companies began producing more products and infrastructure for the U.S. Navy and the building of its ships. This caused hundreds of thousands of workers and sailors to be unknowingly exposed to dangerous asbestos dust in the cutting and manipulation of insulation products. As a result, many of those men and women contracted an asbestos-related disease decades later.

As early as the 1950's, the asbestos industry knew asbestos exposure was killing workers and their families and failed to issue warnings or proper protection. In 1994 Congress recognized the enormous damage caused by asbestos and enabled the creation of privately funded trusts, funded by the asbestos companies, for the benefit of asbestos victims now and into the future. But the asbestos industry continues to fight to minimize their liability, with the ultimate goal of avoiding accountability until the victim dies, leaving grieving families and taxpayers with astronomical medical bills, and decreasing compensation to victims.

In Congress and in state legislatures, the asbestos industry and those who generally want to limit our 7th Amendment rights are pushing bills to delay compensation or raise legal barriers to full payment. On Tuesday, the House Judiciary Committee approved the so-called "Furthering Asbestos Claim Transparency (FACT) Act of 2013," while in states such as Wisconsin, FACT Act-like bills are being enacted or considered. Veterans are waking up to the possibility that they might suffer as a result.

The FACT Act would do three things not currently required: 1) it would require the trusts to publicly disclose extensive, individual and personal claim information; 2) it would allow asbestos defendants to demand any additional information from the trusts at any time and for virtually any reason; and 3) it would apply retroactively to the initial creation of the trust, forcing the trusts to look back to every claim ever filed and paid. Under the bill, many victims could die before their case resolves.

The FACT Act violates federalism principles by overriding state tort law and state law governing the release of personally identifiable information, while hypocritically allowing defendants to maintain confidentiality. Veterans could face the public disclosure of their private work history, asbestos exposure information, the last four digits of of their Social Security numbers, and even the personal information of their children. They've done nothing to deserve their private information being splashed all over the Internet! Sadly, proposals by Reps. Bobby Scott and Hank Johnson to protect veterans' claims and their medical privacy from the FACT Act were rejected by the Republican majority. Rep. Ted Poe of Texas was the only Republican to vote with veterans by opposing the bill.

In Wisconsin, a bill similar to the FACT Act was introduced in the Wisconsin State Legislature due to pressure from asbestos companies. Wisconsin is home to a high number of asbestos-diseased vets; from 1999 to 2005, the state ranked 14th in the nation in the number of mesothelioma and asbestos-related deaths.

Wisconsin veterans' groups are up in arms about the bill. The state chapters of the Military Order of the Purple Heart, the Veterans of Foreign Wars and the American Legion all came out in strong opposition. Nevertheless, the bill continues to proceed towards enactment, with proposals to protect veterans defeated there.

The national headquarters of these organizations are aware of the FACT Act, but haven't yet weighed in publicly to warn Congress against delaying the right to compensation or compromising medical privacy. This Memorial Day, let's honor our veterans by calling the MOPH, VFW and American Legion to urge them to oppose these bills nationwide, and let's tell Congress to keep their hands off our veterans' injury claims and privacy.

Every day, American consumers are vulnerable to injury or death from dangerous foreign products manufactured abroad. We've read and seen numerous stories about poisonous drywall and toys manufactured overseas, with no compliance with our consumer products standards. While U.S. manufacturers must comply with our laws, safety regulations, and judicial system, foreign manufacturers can skimp on safety in order to rush a product to market, knowing there is little to no threat of legal recourse for an unsafe product sold in the United States.

American businesses have an incentive to produce quality goods because they will be held liable by our civil justice system. Foreign companies, on the other hand, have no such incentive because it is often difficult or impossible to subject them to the jurisdiction of U.S. courts. These manufacturers are able to avoid accountability to U.S. consumers while continuing to line their pockets with profits and export billions of dollars worth of merchandise to all 50 states.

Foreign manufacturers should have to play by the same rules as American manufacturers and not be able to escape responsibility because they are beyond the reach of our judicial system. There's a new push by Congress to change the status quo and hold foreign manufacturers accountable.

The "Foreign Manufacturers Legal Accountability Act" was introduced today by Congressmen Matt Cartwright (D-PA) and Mike Turner (R-OH), with Rep. Walter Jones (R-NC) as an original cosponsor. This bill is similar to bills introduced in previous sessions, and I hope a bipartisan majority of Congressmen and Senators support it.

The bill would make it easier for an injured consumer to serve the foreign manufacturer with notice of pending claims, so the consumer can proceed with a lawsuit. Foreign manufacturers or producers of covered products would be required to register an agent, located in a state where the company does business, who would be able to accept service of process for civil and regulatory claims. By registering the agent, the foreign manufacturer or producer also consents to state and federal jurisdiction for civil and regulatory claims. Covered products include drugs, devices, cosmetics, biological products, consumer products, chemical substances, and pesticides manufactured or produced outside of the United States.

The bill is good for U.S. businesses and consumers. Our companies should not be forced to unfairly compete against foreign businesses that can easily skirt the law. As in the case of toxic drywall, U.S. businesses also end up shouldering monetary losses when they cannot hold foreign suppliers accountable for dangerous products. The bill would make it easier for U.S. consumers injured in the United States to hold foreign manufacturers accountable for the injuries they cause. Why should a consumer have to travel to China to serve the defendant when the defendant does business in the U.S. and has an agent-importer located here? Why should Chinese law apply to a U.S. consumer injured in their own home?

The "Foreign Manufacturers Legal Accountability Act" addresses those problems.km Call your Congressman and ask him to support the bill.

The Constitution & Civil Justice subcommittee of the House Judiciary Committee held a hearing today on a proposed Constitutional amendment to give victims of crime additional rights during and after the prosecution of the criminal. Some states allow the victims to participate in the sentencing or plea settlement process or in other ways, and some do not in any part of criminal proceedings. The bipartisan "Victims' Rights Amendment," or VRA, was first proposed by President Reagan and has been championed by Members of both parties in Congress and Presidents of both parties.

One of the provisions in the VRA would entitle victims of crime "to restitution." That's great - I'm all for it - with no argument at all. But Committee Members should remember that the Founding Fathers already recognized that right by fashioning a civil justice system based in the God-given right to have civil claims heard before a local jury. The 7th Amendment was the only amendment in the Bill of Rights unanimously adopted by all of the original states. It reflects the centuries-old recognition of the right to civil jury trials in British law, back to the Magna Carta in 1215, and the Biblical recognition of that right in various texts in the Old Testament. The Founders described that right as "sacred" and "a valuable safeguard to liberty."

Many victims of crime have, over the decades, exercised that right to pursue the assets of the criminal after the prosecution is completed. The successful civil suit against O.J. Simpson by the family of Ronald Goldman, who was killed in the attack, comes to mind.

And American victims of terrorism have had the specific right, added to federal law in the 1990s, to pursue restitution against state sponsors of terrorism. I've assisted victims of the 9-11 attacks, Qaddafi s reign of terror, and Iran-sponsored terrorism to obtain a measure of justice through legislation and administrative action. Last year, Congress enacted a special section in an Iran sanctions act to enable several groups of American victims to enforce a judgment against Iran in federal court. Recently, the first judicial ruling after that bill's enactment was favorable to the victims, a promising development.

Members of Congress should remember that Founding Fathers didn't consider the right to restitution to be exclusive to victims of crime or of any other specific act. They created ONE civil justice system, grounded in the unalienable right to a civil jury trial, for civil claims of all types and all origins. Victims of medical malpractice and product liability have an equal right in the eyes of God to seek restitution as victims of crime and international terrorism, and Congress shouldn't seek to abridge those rights through "tort reform" or artificial caps on civil damages. Congress should spend its energy upholding 7th Amendment rights for all Americans in all circumstances.

The Justice Department has charged Dzhokhar Tsarnaev with using a weapon of mass destruction against persons and property at the Boston Marathon. Read the affidavit HERE.

Having assisted American victims of terrorism for eight years in their quest to take terrorists' money, I'm pretty sure that what the victims of the Boston Marathon bombings most of all is The Answers and The Truth. To a person, terrorism victims have told me that they care more about finding the whole truth about the attacks that killed or injured their loved ones than obtaining compensation for the attacks. The Boston bombing victims deserve no less. They want to know what the feds at the CIA, FBI, DOJ and State Department knew about the Tsarnaev brothers and what they missed. They want to know to whom they might have confided in any mosque in Boston; why the FBI didn't follow up on the 2011 review of Tamerlan Tsarnaev; why they didn't recognize him immediately when pictures and videos of the bombing became available; and what the feds knew or missed about his trip to Russia last year, including who paid for it. They want to know if he was part of a larger group, with potential "sleeper" cells waiting to pounce elsewhere in the U.S.

Too many of us were dissatisfied into the "investigation" into the Benghazi attacks, especially the victims' families. The Obama Administration's lack of disclosure of the events surrounding the deaths of our diplomats and their security personnel stands in stark contrast to the 9-11 Commission's thorough and mostly open investigation of the events leading up to the attacks on September 11, 2001. It wasn't perfect, but it that is the standard we should set in the review of the Boston Marathon bombings. Nothing less will renew our sense of trust in the federal anti-terrorism effort, shaken after the Marathon bombings.

We can't have a Benghazi on American soil. Congress should subpoena every possible document, interview every official involved, and hold as many hearings as possible to forge a single, complete narrative of the brothers' radicalization, their training in explosives, and their plans to bomb the Marathon and possibly other targets.

Let the subpoenas fly and the hearings begin.

Some Members of Congress continued to pursue federal medical liability limits this spring, notably Republican leadership in both houses; Reps. Paul Ryan, Marsha Blackburn and Renee Ellmers; and Sen. Rob. Portman. They ignore the warnings from experts in constitutional law cited often by Republicans, such as Prof. Randy Barnett, Virginia AG Ken Cuccinelli, Prof. Ilya Somin, Rob Natelson, Ted Frank and Walter Olson. The protestations of states' rights advocates such as the National Council of State Legislators; Sens. Tom Coburn and Mike Lee; Reps. Ted Poe and Louis Gohmert; and the leaders of Tea Party Patriots and Tea Party Nation go ignored. Republican experts on health care policy, such as Tom Miller, Jim Capretta and Avik Roy, advised Republicans to pursue measures other than liability limits to improve health care quality or reduce the cost, but the Republicans named above ignored that advice.

All these experts and 10th Amendment advocates have opined that a federal medical liability limit is an excessive use of federal power and now has little chance of surviving scrutiny by the Supreme Court under its rulings on the Commerce Clause and the Necessary & Proper Clause in the Obamacare decision. Nevertheless, Republican House and Senate leaders forced a medical liability limit provision into their budget plans, and did so without committee debate.

A better name for any federal medical liability limit would be the "Dr. Gosnell & Abortion Butchers Civil Protection Act." Almost every such proposal would have the impact of protecting abortion butchers like Dr. Gosnell, now on trial for murder in Philadelphia, from full accountability before a local jury.

Medical malpractice suits brought by families against other abortion butchers, as well as against other dangerously incompetent doctors and medical professionals, could be severely limited in impact, and the Gosnells of America would be allowed to keep much of the "blood money," if federal limits are imposed. Most medical liability limit proposals would sharply limit non-economic and punitive damages, so butchers such as Gosnell wouldn't feel the full sting of a jury verdict on his assets. And they even protect doctors who commit intentional torts, such as sexual abuse! All this is lost on the politicians who ignorantly repeat whatever the medical lobbies put in front of them.

For John Boehner, Rob Portman and Paul Ryan, medical liability limits are an article of faith to beat trial lawyers over the head. Even though these Republicans are vocally protective of the right to life, they don't stop to think that liability limits are a blank check for butchers like Gosnell.

But I'm really surprised that Republican women in Congress, such as Reps. Blackburn and Ellmers, so thoughtlessly ignore the impact of federal liability limits on women's health. Didn't they read the horrific accounts of the deaths of the born babies and 41-year-old Karnamaya Mongar, who died at Gosnell's hands? Don't they realize the danger of their insensitivity? Why don't they see the value of the civil justice system that the Founders designed, grounded in the 7th Amendment right to a civil jury trial, as a means of punishing dangerously negligent doctors?

If Republican women politicians and their leaders want to avoid being accused of waging a "war on women," they should start by ensuring that deadly doctors, hospitals, nursing homes, and drugs and devices don't receive legal protection from civil liability in federal law.

Here we go again. Today the House Permanent Select Committee on Intelligence voted to recommend H.R. 624, the "Cyber Intelligence Sharing and Protection Act of 2013," or CISPA, to the entire House for approval. The bill supposedly enables only a "sharing" of "anonymous cyber threat information between the government and the private sector so they can protect their networks and their customers' private information." But it's basically the same bill as last year's, when groups from all points of view, from Tea Party groups to the ACLU, objected to the lack of protection for personally identifiable information and other violations of our internet privacy.

The Electronic Frontier Foundation recently released a laundry list of problems with the bill. Here are the highlights:

(1) The bill supposedly limits exposure to only "cyber threat information." But the definition of that term doesn't exclude personally identifiable information. Social Security numbers are "cyber threat information" in the wrong hands. Private emails are too - is that what you want your cable company to turn over to the Feds? If you tell your relatives that Obama is a socialist, will Comcast or Verizon turn it over to the FBI? You up for that?

(2) The bill doesn't define "cybersecurity systems" either. Companies can use a "cybersecurity system" to "identify or obtain" information about a potential threat, but the term isn't limited to security software or intrusion systems; the term "system" is never defined. No privacy protection there.

(3) CISPA encourages companies to conduct their own surveillance on their networks and turn over whatever they deem "cyber threat information" to the government, with a promise of total immunity from civil or criminal lawsuits. So it strips the utilities, internet and telecom companies of any accountability and allows them to create a private spying program. CISPA strips us of our constitutional right to hold those companies accountable for turning over our personal information, whether by design or error.

House GOP leaders went through this exercise last year, only to find The People standing in the way. But they haven't learned. They're about to let the same wild-and-crazy gun-control liberals, like Obama, Pelosi and Dianne Feinstein, effective control over our private data and emails. DiFi has her own CISPA ready to go. WHAT ARE BOEHNER AND CANTOR THINKING?

Tell your Congressman and Senator NO, TODAY, and that YOU will personally hold THEM accountable for messing with our internet and our privacy. Tell them to give up on this year's version of CISPA.

In 2011, the U.S. Supreme Court ruled in Pliva v. Mensing that a generic drug maker has no responsibility to update its warning label with new or undisclosed risks, because under federal law the drug must follow the brand label. The Court reasoned that under FDA regulations only brand drug manufacturers can automatically update their labels, and generic manufacturers must accept that label. As such, state claims against a generic manufacturer based on the content of inadequate warning labels must be preempted.

As a result, courts have dismissed hundreds of cases of patients that have been injured by dangerous generic drugs, including cases involving generic Darvocet, Reglan, Phenergan, and Ambien, citing Mensing. Pharmaceutical companies, including those making generic drugs, get a free ride because they're not required to update the warning labels and/or disclose new findings of potential harm to the public.

The Court recognized that its ruling "makes little sense" in the context of its other preemption decisions; for instance, in a previous decision involving federal preemption of state suits over defective drugs, the Court stated:

State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come forward with information. Failure-to-warn actions, in particular, lend force to the FDCA's premise that manufacturers, not the FDA, bear primary responsibility for their drug labeling at all times. Thus, the FDA long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulation.

Wyeth v Levine, 555 U.S. 555 (2009), pp. 579-80

The Mensing ruling was another blow to the states' right to administer civil justice in an area where state authority had been upheld for decades. But it wasn't the first such decision by the Court. In Riegel v. Medtronic, Inc. (2008), the Court found that in certain circumstances, a person's ability to bring a medical-device claim under state law is preempted by federal law. The Court ruled that for only "Class III" medical devices approved by the FDA under the pre-market approval process, no state law cause of action would be allowed to go forward. That case resulted in the dismissal of hundreds of cases involving defective heart pacemakers and artificial joints. The Court recently heard case involving defective generic drugs, Mutual Pharmaceutical v. Bartlett, that will decide whether generic makers face any responsibility for the overall design of the drugs they produce.

Whether the Court continues to preempt state civil suits or not, we know that the FDA cannot guarantee the safety of generic drugs. Attorney Keith Jensen recently discussed the FDA's failure to protect our health, in an interview on the "What's Up" radio program in Houston, hosted by Terry Lowry. As Mr. Jensen explained, pharmaceutical companies send trucks filled with boxes of data to the FDA with a simple letter stating that their new drug is safe and should be approved for sale. The FDA, without its own labs, reviews the company's mountain of data but cannot conduct an independent verification. Without evidence to the contrary, the FDA rubber stamps the pharmaceutical's request for sale. You can download Segment One of the interview here, then Segment Two, and then Segment Three.

We need to protect the Founding Father's vision of a vibrant civil justice system, based in the 7th Amendment right to a jury trial for civil suits, to serve as a truly effective accountability mechanism.

This is an issue in which Congress should enact a law to restore our lost rights. Please tell your Congressman and Senator to level the playing field and restore states' rights and accountability for defective generics.

Here's why real conservatives should oppose the Ryan budget:

1. It maintains the federal leviathan working to control our lives. FACTS: The Ryan budget won't result in the single closure of any sizable federal agency and explicitly avoids layoffs of federal workers. As Roll Call newspaper put it, "Ryan's budget eliminates the deficit in 2023 not because of large new spending cuts relative to his past budgets, but because he's keeping hundreds of billions of dollars a year of President Barack Obama's own budget policies in place." There's nothing "conservative" about using Obama's phony budgeting.

2. The Ryan budget also maintains the Obamacare and fiscal cliff taxes needed to fund Big Uncle Sam. Again, quoting Roll Call, "Ryan's budget also would not balance without the $600 billion-plus increase in taxes extracted by the president in the fiscal cliff deal." What's "conservative" about backing Obama's tax increase?

3. The result of the Ryan spending and tax decisions is that he sacrifices the conservative principle of reducing the role of the federal government for a goal of a balanced budget, which is a numbers exercise (albeit an important one). And that is exactly what happened in the Reagan budgets (I was there) and during the Gingrich era in the 1990s, when we achieved a budget surplus but didn't get Big Uncle Sam out of our lives. Is that what conservatives want?

4. The Ryan budget violates the 10th Amendment and restricts the 7th Amendment right to civil jury trials. It unconstitutionally crushes each state's right to maintain its own civil justice system, by mandating federal limits on damages available in healthcare-related lawsuits. The plan ignores the opinions of the most respected Republican-side and libertarian legal experts and officials who have repeatedly written that Congress has no authority to enact federal caps on medical malpractice lawsuits, especially under the majority opinion in the Supreme Court's Obamacare opinion. These experts include Prof. Randy Barnett; Virginia AG Ken Cuccinelli; legal experts Rob Natelson, John Baker and Carrie Severino; and Reps. Ted Poe, Louie Gohmert and Lee Terry, and Senators Tom Coburn and Mike Lee. The National Conference of State Legislators has always protested federal caps as a violation of the states' right to operate their civil justice systems without federal interference. Tea party leaders such as Judson Phillips and the Tea Party Patriots criticized the passage of caps by the Republican House in the last session of Congress.

5. The same caps do nothing to raise the quality of health care in the U.S., which is why Republican-side healthcare experts don't support federal caps on such lawsuits (e.g., Avik Roy, Jim Capretta and Tom Miller). A recent study by respected academics punctures five myths of medical malpractice, but these realities are ignored by Rep. Ryan and House leadership.

6. The combination of the continued federal presence in the regulatory agencies and the proposed civil immunity for the entire medical community, from doctors to insurance companies to nursing homes, make the Ryan budget a perfect vehicle for Crony Capitalism. Federal bureaucrats will feel free to preempt state laws and restrict individual freedom in all types of settings. There's no effective "STOP" sign on Uncle Sam in the Ryan budget.

Conservatives and Tea Partiers should oppose the Ryan budget. It doesn't promote the conservative vision of a reduced role for the federal government in our lives. It continues to "feed the beast." It infringes on states' and individual rights. It's not a conservative or Tea Party manifesto and should not excite or inspire any conservative, Tea Partier or libertarian. It doesn't project the Founding Fathers' vision for the nation or for a limited government. There's no reason to spill any political blood over it.

On Sunday, Rep. Paul Ryan promised, "No more crony politics" in his budget during TV interview. That promise lasted two days. Today, he released his budget, which would reward the pro-Obamacare (and pro-abortion) AMA and associated medical groups by capping what victims of healthcare malpractice can collect in lawsuits filed in state courts. Here's the text on page 40 of Rep. Ryan's draft budget for FY 2014:

"• Reform the medical liability system.
This budget also advances common-sense curbs on abusive and frivolous lawsuits. Medical lawsuits and excessive verdicts increase health-care costs and result in reduced access to care. When mistakes happen, patients have a right to fair representation and fair compensation. But the current tort litigation system too often serves the interests of lawyers while driving up costs. The budget supports several changes to laws governing medical liability, including limits on noneconomic and punitive damages."

The plan ignores the opinions of the most respected Republican-side and libertarian legal experts who have repeatedly written that Congress has no authority to enact federal caps on medical malpractice lawsuits, especially under the majority opinion in the Supreme Court's Obamacare opinion. Such a measure crushes states' and individual rights and is an invalid exercise of the Commerce Clause.

The panoply of experts include Prof. Randy Barnett; Virginia AG Ken Cuccinelli; legal experts Rob Natelson, John Baker and Carrie Severino; and Reps. Ted Poe, Louie Gohmert and Lee Terry, and Senators Tom Coburn and Mike Lee. The National Conference of State Legislators has always protested federal caps as a violation of the states' right to operate their civil justice systems without federal interference. Tea party leaders such as Judson Phillips and the Tea Party Patriots criticized the passage of caps by the Republican House in the last session of Congress.

And federal caps on medmal damages are not supported by leading Republican-side healthcare experts. Avik Roy, Jim Capretta and Tom Miller don't include it in any of their recent proposals. They know federal caps on medmal lawsuits do nothing to help improve the quality of medical care.

The Ryan budget is nothing more than a sop to doctors, insurance companies, drug and device companies, and nursing homes, ALL of whom supported the enactment of Obamacare and approval by the Supreme Court. The lust for campaign dollars ignores the Constitution and realities in the healthcare marketplace.

Republicans should reject Ryan's Crony Politics and vote with the Founding Fathers.

Crony Capitalists (CCs) never quit trying to entice federal officials into giving them special access or favors and shutting millions of the rest of us out of court, so they have no accountability to a local jury for negligence or shoddy service. They've enlisted scores of Members of Congress, many of them self-proclaimed backers of states' rights, in an effort to to override the Founding Fathers' clear guidance that Congress doesn't have authority over state tort law, specifically with respect to lawsuits over healthcare negligence. True Federalists have had some recent success in persuading conservatives to not accede to the CCs' demands, but the CCs never quit. And while we fight that one big battle, CCs have opened up another front, with enormous success thanks to another arm of an all-powerful Uncle Sam.

Under the nose of the vast majority of Americans, Crony Capitalists have been moving to shut out millions of us from exercising our 7th Amendment rights over bad products or services, based on one rarely read paragraph in consumer contracts. That paragraph, in everything from cell phone and car contracts to employment agreements, requires us to submit to binding arbitration, and to not file a lawsuit, as a condition of even buying the product or service. Forced arbitration clauses eliminate the ability to hold wrongdoers accountable, even in the most egregious cases involving the abuse of children and the elderly, intentional wrongdoing, and gross violations of law.

These clauses force us to give up our God-given, constitutionally protected right to go to court in favor of being relegated into a system of secret arbitration, where the arbitrators and the rules are chosen by the very company against whom the individual has a grievance. There are no due process standards, no guarantees that the applicable laws will be upheld, and no public records of the proceedings.

Let me stress that there's nothing wrong with voluntary arbitration in which both sides have an equal chance before an impartial arbitrator in an open process. That's not what happens in the current arbitration environment. The little guy has almost no shot whatsoever. And the mainstream press never touches the subject.

It's been trending this way for years, but Crony Capitalists have received a huge boost from the supposedly-conservative Supreme Court in the quest to shut courthouse doors over forced arbitration clauses. The Court's recent decisions have turned an almost-80-year-old law, the Federal Arbitration Act, into a giant club with which to crush states' and individual rights. Two Texas state judges summarized the state of forced arbitration and recently wrote the following:

Our Seventh Amendment right to a jury trial is vanishing before our very eyes thanks in large part to an increased reliance upon alternate dispute resolution and mandatory arbitration. While a sound argument can be made for the utility of arbitration in arms-length commercial transactions, the consequences are particularly dire in situations involving consumers and employment consequences... AT&T and Rent-A-Center pushed the FAA's scope to new limits. Courts are now unlikely to find contracts with arbitration provisions unconscionable no matter what state law provides. It is obvious that the application of the FAA has expanded beyond its drafters' intent and in the face of apparent deficiencies.

Last week, a federal securities regulator gave preliminary approval to a plan by the discount brokerage firm Charles Schwab to require all 8+ million accountholders to agree to forced arbitration, even if Schwab violates securities law. POOF! There goes the constitutional rights for over 8 million people. Betcha every stock brokerage firm copies Schwab, basically enabling Wall Street, which already liquidated billions in pension accounts, to throw ethics out the window again and take investors into another financial crash without penalty.

Tomorrow we'll see if the Supreme Court will take forced arbitration another step further and force small businesses with American Express accounts to submit to forced arbitration procedures designed and run by AMEX. If the Supremes are consistent, every small business with a Gold Card will know how individuals feel when the phone company tells us to go to arbitration or enjoy our crummy phone.

WHAT'S NEXT?! Will we see a sign on the grocery store door and on receipts, telling us that the purchase of food there constitutes an agreement to not sue it for spoiled, poorly stored food that makes us sick? Will we see a little paragraph on our car mechanic's bill, telling us that we can't sue for a dangerously negligent care repair, even if we're killed?

When will Congress start taking this seriously and change the Federal Arbitration Act so we can exercise our rights in state courts, as the Founders said we should?

UPDATE, March 4: I Discussed this issue on the What's Up radio program, hosted by Terry Lowry and broadcast on 100.7 FM KKHT, the Word Live stream at www.KKHT.com in Houston, TX, and on KBXD-AM 1480 in Dallas. You can download and listen to the interview in three segments:
Segment One
Segment Two
Segment Three

Two families of students killed in the 2007 mass shooting at Virginia Tech are in court today, asking a three-judge panel of the Virginia Supreme Court to allow them to appeal a judge's decision on the negligence case they successfully pursued against the university. The families of Erin Peterson and Julia Pryde sued the university for negligence, and the jury agreed and awarded $4 million to each to the families. But a state appellate judge reduced the awards to $100,000 under a state law capping non-economic damages. The families want to reinstate the university president as a defendant, but I object to the reduction in the damages award.

That reduction begs the following questions: Why don't we trust the same jurors who hear all of the facts, listen to all of the testimony, and determine legal liability to determine the amount of damages? What makes a judge, or any small group of judges, so special that they should have the power to override a jury's decision? Why do we allow state legislators to arbitrarily set a rigid cap on non-economic damages? Can't state law at least enable a jury to "bust the cap" as it sees fit in unique circumstances? Where in the Founding Documents of the United States is there any support by the Founding Fathers for the idea of overriding a jury's decision on damages through an inflexible state statute or an arbitrary decision by a judge?

The jury in the Virginia Tech shootings case found that the university's senior officials were negligent in not warning students that a homicidal maniac had already killed students and was on the loose. The jury consciously decided that the university officials were so grossly negligent that the they had to award millions of dollars in damages to the families. That decision by twelve honorable Virginians should have been honored in state law and by state judges.

I hope the Virginia Governor and General Assembly will consider that their fellow Virginians Thomas Jefferson, James Madison and George Mason honored and protected the jury's right to determine civil liability and never, ever, proposed limiting a jury's discretion to award damages. It was Madison who described trial by jury in civil cases "as essential to secure the liberty of the people as any one of the pre-existent rights of nature" and who protected it in the Seventh Amendment. Mason refused to sign the Constitution because of the absence of a Bill of Rights, and he specifically demanded trial by jury in civil cases. To arbitrarily cap a jury's award, without even the ability of a single jury to override a statutory cap in special circumstances, ignores the unique place granted to civil jury trials by Founders such as Jefferson, Madison and Mason and dilutes the power of a jury to hold a defendant fully liable for gross negligence.

Yesterday was the 102nd birthday of Ronald Reagan, the greatest President of my lifetime, to whom I owe personal and professional thanks for my marriage (to one of his White House secretaries) and my Washington career (beginning as a Reagan Administration political appointee). His personally autographed photo congratulating us on our marriage is one of our most cherished possessions.

Almost two years ago, I researched all of his speeches and writings available on the internet to determine whether he would be considered a "constitutional conservative" by today's standards, meaning fidelity to the Bill of Rights, or whether he would stand with today's "Crony Capitalists" who lobby in Washington for special protection in federal law through the preemption of state law or, worse yet, immunity through federal tort reform. Too many politicians who pass themselves off as constitutional conservatives ditch the 7th Amendment right to civil jury trials and side with Crony Capitalists to protect companies they represent.

I then wrote a special post titled, "What Ronald Reagan REALLY Said About Tort Reform," which I re-posted in January of last year. The conclusion of my research is crystal clear.

Ronald Reagan was never for federal tort reform. He never proposed a federal tort reform bill in his State of the Union speeches, budget proposals, nomination acceptance speeches, or major addresses on the economy.

Reagan's silence in the issue is due primarily to his strong belief in the rights of the states and individual, as protected in the Bill of Rights. Reagan understood, better than almost any political figure of our times, the limitations on central power built into the Constitution and fortified by the Bill of Rights. He highlighted his fidelity to federalism in his first Inaugural Address in 1981:

All of us need to be reminded that the federal government did not create the states; the states created the federal government.

And before that, in his 1979 speech announcing his candidacy:

The federal government has taken on functions it was never intended to perform and which it does not perform well. There should be a planned, orderly transfer of such functions to states and communities and a transfer with them of the sources of taxation to pay for them.

That sounds like a constitutional conservative, not a Crony Capitalist. And I remember that Reagan was the presidential candidate for "Main Street Republicans," including the social conservative movement, while John Connolly of Texas was the guy backed by the "Wall Street Republicans."

In the decades in which he addressed public policy issues as a commentator, Governor and President, he addressed the issue of federal tort reform apparently only once, near the end of his Presidency. In remarks he gave in Washington in April 1986, he remained true to his roots, saying, "To be sure, much tort law would remain to be reformed by the 50 States, not the Federal Government. And in our Federal system of government this is only right." That's a man who knows that Uncle Sam's authority is limited to the powers enumerated in the Constitution. Unlike many on the left and right today, Reagan would have had no inconsistency between his opinion on Obamacare and his thoughts on federal tort reform. He would have found both unconstitutional.

Reagan would feel right at home with the Tea Party base of the Republican Party that recognizes and honors the 7th Amendment right to a jury trial for civil suits. He would have stood with legal scholars Randy Barnett and Rob Natelson; Senators Tom Coburn and Mike Lee; and Virginia Attorney General Ken Cuccinelli against the takeover of state tort law by the feds. I have to believe that anyone proposing sweeping preemption of the states' rights to protect citizens and manage courtrooms would've drawn severe skepticism or outright opposition by President Reagan.

So thank you, Ronald Reagan, for your vigorous defense of personal and states' rights, and for so much more.

Before he was a President and Founding Father, John Adams was a famous trial lawyer. In the case that made him famous, he represented the British soldiers who participated in the Boston Massacre, in which he actually persuaded a Boston jury to dismiss the murder claims. His closing statement began with the words, "Facts are hard things," a now-famous proverb we hear thrown about often, on issues from the deficit to gun control.

Some of the "hard facts" about medical malpractice are addressed in a new study published in the January 2013 issue of "CHEST," the official journal of the American College of Chest Physicians." Titled, "Five Myths of Medical Malpractice," the study lists five famous myths, then debunks them with real facts. The study is summarized on the CHEST website, but is copyrighted and thus available in full only to subscribers. Here is the authors' summary open to all:

"We identify five myths of medical malpractice that have wide currency in medical circles. The myths are as follows: (1) Malpractice crises are caused by spikes in medical malpractice litigation (ie, sudden rises in payouts and claim frequency), (2) the tort system delivers "jackpot justice," (3) physicians are one malpractice verdict away from bankruptcy, (4) physicians move to states that adopt damages caps, and (5) tort reform will lower health-care spending dramatically. We test each assertion against the available empirical evidence on the subject and conclude by identifying various nonmythical problems with the medical malpractice system."

The authors are David A. Hyman, MD, JD, and Charles Silver, JD, two expert researchers who have already punched holes in the major claims made about the benefits to Texans from state-imposed caps on damages in medical malpractice lawsuits. I've written extensively about their study of Texas medmal caps, which they cite in the new study.

For policy purposes, I'll note here simply that the last paragraph of the new study reports that mandated caps on medmal damages "do little to improve the malpractice system... they do not make health-care safer, reduce health-care spending, compensate those who are negligently injured, or make the liability system work better." Hyman and Silver say that the best reforms in medicine are "patient safety initiatives that reduce the frequency and severity of medical mistakes."

That's the type of fact-based conclusion that should be easy to swallow. If you want to limit medmal lawsuits, end the medmal!

Conservatives love the 2nd Amendment. The 7th Amendment? Not so much. But the funny thing is, the 7th Amendment could be what saves the 2nd Amendment... If seven million gun owners each individually filed lawsuits along with a request for a restraining order keeping the Obama Regime from imposing whatever gun control it has in mind, numbers alone dictate that some of these lawsuits will land in front of judges that support the 2nd Amendment.

Judson Phillips, Tea Party Nation, January 12

Judson Phillips, the Founder of the Tea Party Nation group, knows and defends each amendment in the Bill of Rights. He knows that the Founding Fathers based the civil justice system on an "inviolate" right to a jury trial for civil suits in order to place real power in the hands of local jurors, not the sovereign. The Founders created one civil justice system and protected civil jury trials under the 7th Amendment for all causes and cases, from the protection of gun rights (2nd Amendment) and religious liberty (1st Amendment) and property rights from an activist central government, to the defense of economic rights exploited in the free market, through lawsuits for defective products and medical malpractice.

Real conservatives need to defend each and every God-given right enumerated in the Bill of Rights, and fight to maintain the limits on central power inherent in the Constitution. The Supreme Court ruling in the Obamacare decision made it clear that the Commerce Clause doesn't authorize federal encroachment into local health care decisions, a ruling clearly applicable to most civil justice issues and tort law.

I discussed these issues recently on the syndicated What's Up radio show, hosted by Christian conservative Terry Lowry and broadcast on various radio stations around the country. You can download the podcast of my interview from the What's Up website at this link (mp3 file). I noted that the Bill of Rights is not a menu that we can just pick and choose from, like we do at a restaurant. Liberals who love civil jury trials for their causes need to protect our right to bear arms, and conservatives need to protect the right to civil jury trials from crony capitalists who would abridge our right to a civil jury trial through "tort reform." I added that neither God nor the Founding Fathers makes anyone in the healthcare industry so special as to be worthy of immunity from civil suits and accountability for their negligence.

It wasn't difficult to see liberals standing on the Mall in Washington, bundled in warm clothing and loudly cheering President Obama's Inaugural Address, with the promise of larger and more activist central government deployed to implement a "progressive" agenda. But I saw another group smiling softly deep in the background. It was the Crony Capitalists, watching from warm, comfortable Fortune 100 boardrooms across America and on Wall Street, and their K Street lobbyists in DC, all nodding their heads at the opportunity to transform that vision into new laws and regulations that would benefit their own interests. That's the way it works in Washington, and the rest of us are the cream in the Oreo cookie, stuck in the middle and crushed by both sides.

Liberals, especially those dedicated to the cause of civil justice, should be careful what they wish for in the next four years. An Uncle Sam unleashed from the limits on centralized power designed into the Constitution and Bill of Rights could hinder or even crush the individual right to have civil suits heard before a local jury and the right of state governments to enforce local laws benefitting the consumer. In the hands of Big Government Liberals and Crony Capitalists working behind closed doors in smoke-filled rooms, phrases of Obama's speech such as "collective action" and "common effort" could result in budget "compromises" and "Grand Bargains" that leave us with ugly surprises, such as federal caps on damages in medical malpractice lawsuits filed in state and county courts; preemption of state consumer protection laws; and limits on the authority of state Attorneys General. Is that what liberals signed up for when they cheered President Obama?

Civil justice activists of all stripes should heed and cite the majority decision by the Supreme Court in the Obamacare ruling. Thankfully, the Court expressed the need for the Executive Branch and Congress to recognize and follow constitutional limits on their authority under the Commerce Clause and the Necessary and Proper Clause. Constitutional experts whose theories were adopted by the majority, such as Randy Barnett and Rob Natelson, have already made it clear that the Roberts decision imposed new limits on the unbridled ambition to override state governments and individual rights. Randy Barnett promises to lead any legal challenge to an enacted federal cap on medmal damages, and both experts predict such a law would be struck down by the current Court. As long as that opinion isn't overruled through the appointment of justices who believe in an unlimited Commerce Clause, as promoted in Justice Ginsberg's minority opinion, the Founding Fathers' vision of a civil justice system dominated by local juries, and not bureaucrats in Washington, will remain alive.

Ironic, isn't it? Civil justice advocates on the left need libertarians and constitutional conservative thinkers such as Randy Barnett and Rob Natelson; conservative Republicans such as Ted Poe, Louis Gohmert, Tom Coburn, Mike Lee and Ken Cuccinelli; and wise Tea Party activists such as Judson Phillips, to keep the promise of equality under law. Let's hope civil justice liberals realize it.

Politicians in the state of New York want to cap the number of bullets in a clip or magazine, by law, from 10 to 7. Such a law would immediately transform all sorts of legally owned handguns into illegal firearms, and the owners into felons. Think the criminals will care about that cap, or will they just use an illegally modified clip to ensure they have enough to shoot as many innocent people as they want? How's that cap going to stop criminals? And what clause in the Constitution and Bill of Rights gives politicians the power to do that to us?

It's as unworkable an idea as mandating a cap on the number and type of words a blogger or journalist can use in a post or article. As one attorney put it recently, "Would you have the right of freedom of speech if that speech were limited to a certain vocabulary - say 500 words? Or even 350,000 words?.. If one is artificially limited in the words you can speak, then how does one have true freedom of speech?"

Too many Americans who claim to base their political decisions on the Constitution and Bill of Rights fold like a paper airplane when push comes to shove. Too many of us pick our founding documents apart to choose which of the limits on power in the Constitution, or which of the ten amendments in the Bill of Rights, we back at any given moment.

On no issue is that conflict more obvious than proposals to cap civil damages for medical malpractice or for broader health care-related lawsuits. First and Second Amendment absolutists ignore the right to a jury trial for civil suits, protected under the Seventh Amendment, at a moment's notice. Some politicians are so inconsistent that they back civil suits for all types of causes, such as excessive eminent domain actions or to protect religious liberty, but flip on a dime to close courthouse doors to Americans injured or killed by medical negligence.

Who made doctors, hospitals, drug companies, nursing homes and insurance companies so special? Certainly not the Founding Fathers. Not many Supreme Court Justices, or state Supreme Court justices, or modern constitutional conservatives and libertarians.

But some Missouri Republicans don't get it. Even though their own state Constitution makes the right to a civil jury trial "inviolate," a term used in many state constitutions, some there want to reinstate caps after the state Supreme Court ruled a Missouri cap law unconstitutional. Apparently, "inviolate" means one thing when it comes to freedom of religion and the right to bear arms, and something less when it comes to jury trials in Missouri.

Pro-cap legislators claim that only caps will prevent increases in health care costs. But the state caps haven't stopped health care costs from rising in Missouri, any more than caps in Texas have held down costs there. According to the Center for Medicare Services at H.H.S., health care spending per capita rose at an average of 5.1 percent each year from 2004 through 2009, during which caps were in effect.

First and Second Amendment advocates who want to strip us of the right to a civil jury trial should remember that a jury of peers is the Founding Fathers' way of protecting those other cherished rights. Or, as Judson Phillips of Tea Party Nation puts it, we need to use the Seventh Amendment to save the Second Amendment.

At the end of the last session of Congress, members of both parties finally came together to enact the Strengthening Medicare And Repaying Taxpayers Act, or "SMART Act," and enacted it into law after a three-year effort. This bill helps to replenish the Medicare Trust Fund, make Medicare work for seniors instead of the other way around, and reduces paperwork burdens for businesses. Led by Rep. Tim Murphy, M.D., a Republican from Pennsylvania, a group of Members of Congress dedicated to resolving inefficiencies in one special part of the Medicare program pushed the bill through Congress as part of H.R. 1845, the "Medicare IVIG Access and Strengthening Medicare and Repaying Taxpayers Act of 2012," which also authorizes Medicare payments for intravenous immune globin (IVIG) for the treatment of immune deficiency diseases.

Here's the issue dealt with in the SMART Act: Under federal law, Medicare pays the medical bills while a recipient is injured and sues the other party, acting as the "secondary payer" for the bills pending the outcome of any legal action. Federal law requires the injured person's attorney to repay Medicare upon a judgment or settlement, before any funds are given to the injured senior. But the federal agency running Medicare hinders the repayment process, so it can take years to finally pay off even the smallest claim, and the senior doesn't see a dime of the settlement until that payoff. Moreover, the feds impose ridiculous reporting burdens and penalties on businesses under the same secondary payer law. The SMART Act streamlines the process, establishes real deadlines for the federal agency, and enables businesses to meet CMS reporting requirements while maintaining data security.

The leading sponsor in the House was Rep. Murphy, a career psychologist serving his district for over ten years. I first met and worked with him while he was on the House Financial Services Committee, where I was the senior Republican oversight counsel from 2001 through 2003. Rep. Murphy has always reached out to work with Members on both sides of the aisle, while maintaining core conservative beliefs about limiting the size and scope of the federal government. He was the perfect Congressman to lead the most bipartisan Medicare bill in Congress, with 140 House co-sponsors from Reps. Ron Paul and Allen West on the right to Reps. Diana DeGette and Tammy Baldwin on the left. And the effort was supported by the U.S. Chamber and trial lawyers, and by companies as large as Lowes, WalMart, BestBuy, Marriott International, and Disney, as well as by some of the largest insurance companies in America

A year ago, Rep. Murphy discussed the bill on a nationally syndicated radio show. "Now it's interesting: defense lawyers, plaintiffs' lawyers,, retailers, stores, restaurants, everybody wants to fix this problem, except Medicare. And so there are hundreds of millions of dollars that sit out there that take forever for the bureaucracy to try and claim, and some of the sad news about this is that sometimes what Medicare does, they will sue some elderly person or ask for the money to come back from the elderly person, and say that if you don't pay us back, we're going to take it out of your Social Security... So we're trying to correct this..."

And correct it he did. Congrats and thanks to Rep. Murphy, and thanks to other Members of Congress who championed this bill: Rep. Ron Kind (D-WI), the lead House Democrat on the bill; and Senators Ron Wyden (D-OR) and Rob Portman (R-OH), the lead Senators for the Senate version.

So asked a friend of mine while we were talking about the range of lawsuits filed by parties ranging from religious institutions, protesting infringements on their liberty, to individual Americans hurt by medical negligence. Good question, I said - and here are the persons who set up all those lawsuits:

(1) The Founding Fathers of the United States. One of the primary themes of my work is that the Founders were crystal-clear, from long before the Revolutionary War through the ratification of the Bill of Rights, that Americans had a God-given right to present their claims before a jury of neighbors. They reflected their beliefs in the Declaration of Independence, the Constitution, and the 7th Amendment. Here are just a few representative samples:

"The civil jury trial is preferable to any other and ought to be held sacred." --Virginia Declaration of Rights, 1776

"In civil suits the parties have a right to trial by jury and this method of procedure shall be held sacred." -- Massachusetts Constitution, 1780

"Trial by jury in civil causes,... trial by jury in criminal causes, [and] the benefits of the writ of habeas corpus... all stand on the same footing; they are the common rights of Americans." -- Richard Henry Lee

"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." -- Thomas Jefferson to Thomas Paine

"By a declaration of rights I mean one which shall stipulate freedom of religion, freedom of the press, trial by juries in all cases..." -- Thomas Jefferson to Alexander Donald

"The civil jury is a valuable safeguard to liberty." -- Alexander Hamilton

"In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." -- James Madison

"In suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people." -- Virginia Bill of Rights, 1788

But the Founders weren't original thinkers; they stood on the shoulders of their philosophical ancestors over centuries of human experience.

(2) The British ancestors of the Founding Fathers. On June 15, 1215, British farmers forced King John into the sealing of the Magna Carta at Runnymede in England. The document required King John to proclaim certain individual liberties, and accept that his will was not arbitrary, for example by explicitly accepting that no "freeman" (in the sense of non-serf) could be punished except through the law of the land. It's certainly the charter for modern democracy, the basis for eight centuries of British and American law (copied around the world), and the foundation for the U.S. Constitution and the Bill of Rights. The colonies in Virginia, Massachusetts, and Maryland especially sought to reflect various points of the Magna Carta in their early charters and laws. Article 39 of the Magna Carta can be translated as, No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. It is this article that establishes and protects the right to a trial by local jury in criminal and civil cases, to protect all other individual liberties from the power of centralized government. The Founding Fathers studied the Magna Carta and knew the many instances in which the British had deprived them of their rights. John Adams referred to it as "that fundamental law" when opposing the Stamp Act of 1765, and the deprivation of jury trials was among the grievances listed in the Declaration of Independence. George Mason, who refused to sign the Constitution because it didn't explicitly protect individual rights and the prerogatives of states, drew upon the Magna Carta for his writings, which eventually led to the enactment of the Bill of Rights.

(3) Last but not least, G-O-D. Yes, God Almighty decreed that humans, his creation, have the right to hold each other accountable at law. Attorney Thomas Methvin of the Beasley Allen firm in Montgomery, Alabama published a comprehensive paper, Trial Lawyers And The Biblical Basis For What We Do, and he discussed it on the air on April 21. As Mr. Methvin wrote, the Bible speaks early and often about the duties to avoid committing negligence, paying damages for harm to property, and even paying punitive damages. For instance:

And if a man shall open a pit, or if a man shall dig a pit, and not cover it, and an ox or an ass fall therein; The owner of the pit shall make it good, and give money unto the owner of them; and the dead beast shall be his. (Exodus 21:33-34)

For all manner of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing, which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbour. (Exodus 22:9)

If a man shall cause a field or vineyard to be eaten, and shall put in his beast, and shall feed in another man's field; of the best of his own field, and of the best of his own vineyard, shall he make restitution. (Exodus 22:5)

Do not deny justice to your poor people in their lawsuits. (Exodus 23:6)

The Lord takes his place in court. He is the great prosecuting attorney, presenting his case against his people! The leaders and the princes will be the first to feel the Lord's judgment. (Isaiah 3:13-15)

Seek justice, encourage the oppressed. Defend the cause of the fatherless, plead the case of the widow. (Isaiah 1:17)

Mr. Methvin's paper presents more details on the civil justice system established for the Israelites in the law of Moses. He also sets out a Biblical basis for the professional trial lawyer, for instance in Psalm 106:3, Blessed are they who maintain justice, who constantly do what is right.

So the next time you hear someone crack on civil suits and trial lawyers, remind them that there are three pretty good sources for those suits, and we should pay attention.

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