Federal Preemption & Immunity Statutes Empower "Elites," Not the "Country"


So the conservative media is expressing alarm about the new Politico.com poll showing the stark, night-and-day difference between the Washington "elites" and average Americans, the "country" folk who live through loyalty to their faith, their Constitution, and their family. This isn't the first commentary on the cultural divide between Washington and the rest of the country. And I agree with the conservative media wholeheartedly - a Washington elite that isn't connected with and to the average American has no business over-governing and over-taxing us.

So why doesn't the conservative media see that federal laws that preempt state law and provide immunity to one or another group, from financial services to a proposed cybersecurity law, rip through the fabric of our Constitution and Bill of Rights? Why the obsequious bow to the crowd that demands a virtual end to the 7th Amendment right to jury trials for civil suits in the name of economic efficiency or market share? The Founding Fathers declared all Constitutional rights to be "unalienable" and therefore beyond subjection to a cost-benefit test (that didn't work for the gun control crowd against the Second Amendment, did it?). Solid, thoughtful conservatives, from the American Spectator to Rush Limbaugh and Liberty Central, reacted to the Politico poll by commenting on the tendency for mainstream Republicans to sometimes follow along blindly with the elitist mentality. But I doubt that even those conservatives realize the extent to which federal legislation which preempts state statutory and common law, and thereby immunizes corporations from accountability for their actions, routinely attracts numbers of self-described "conservative" Congressmen.

Ken Connor, longtime conservative activist, 7th Amendment defender, and Chairman of the Center for a Just Society, made several relevant points in a post on the CJS site yesterday:

The tort system promotes local control. Through the jury system, people at the local level decide what is reasonable behavior within their own communities. Ordinary citizens, applying a common sense standard of reasonable care, making decisions about acceptable and unacceptable conduct within their community - that is the essence of local government. And, as a result of those decisions, suppliers of goods and services within the marketplace will often modify their own behaviors (i.e., improve health care standards, place guards on dangerous products, protect against discharge of toxic pollutants) without the necessity of yet another costly and intrusive governmental bureaucracy...

With regard to other questions constitutional, conservatives (and libertarians, for that matter) argue that an exception should not be allowed to undo the rule. We shouldn't revoke the 2nd amendment just because some individuals commit crimes with guns. We shouldn't axe the 1st amendment just because some choose to exercise their free speech in a hateful manner. And we shouldn't do away with the 7th amendment just because some tort lawyers and their clients make frivolous claims in court.

Conservatives need to trust the Founders' wisdom and their trust in juries to rightly judge civil suits. Preemption and immunity turns over the authority to the elites. As I wrote on June 24, there's nothing "conservative" about giving some unelected, anonymous bureaucrat thousands of miles from an American hometown the authority to rule over what is safe, instead of letting a jury of 12 good Americans decide it.

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This page contains a single entry by Andrew Cochran published on July 20, 2010 5:21 PM.

BP Still Not Legally Obligated to Pay Claims - First Senate Committee Action on Liability Limits This Week was the previous entry in this blog.

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