August 2010 Archives

It's one thing to build a mosque near Ground Zero - it's another altogether when the proponent of the mosque is an Imam who believes in imposing Shariah law inside the United States. And that's what Imam Feisal Abdul Rauf, chairman of the Cordoba Initiative, believes is his mission, and that's what he would pursue inside any completed "Ground Zero mosque." He already said so on the Huffington Post on April 24, 2009:

In America, we have a Constitution that created a three-branch form of government - legislative, executive and judiciary. The role of the judiciary is to ensure that the other two branches comply with the Constitution. What Muslims want is a judiciary that ensures that the laws are not in conflict with the Quran and the Hadith. Just as the Constitution has gone through interpretations, so does Shariah law.

And what does he mean by referring to "a judiciary that ensures that the laws are not in conflict with the Quran and the Hadith?" For starters, NO JURIES, EVER. A Shariah-trained lawyer for Aramco Oil wrote in 1966 about the complete control that a judge (the "Qadhi") has inside a Shariah court:

In a Shari'ah court the Qadhi is the central figure. In some instances there may be a Junior Qadhi assisting him, but there are no juries. As an American lawyer, I was at first surprised by the absolute control which the Qadhi maintains over the proceedings before him and by the large discretionary authority at his command. In marked contrast to the more neutral role that a United States trial judge plays, the Qadhi actively participates in the case. Since his role is not to arbitrate, but to actively seek the truth to procure justice, he questions both parties and all witnesses at will. He even concludes cases by convincing the parties to settle their differences by the honorable method of sulh, or compromise, usually on the basis he recommends, when he is in doubt as to which party is in the right.

And that lawyer made it clear that the Qadhi is much more than just a trial of fact and law, he is revered above all other citizenry and leads the community's religious life:

In the United States a judge is called "Your Honor." In Saudi Arabia he is called "Your Reverence" and the difference is significant. A judge--more properly, Qadhi--in Saudi Arabia is more than a judge. He is also a religious leader, who leads prayers in the mosque, delivers sermons, advises the Amir of his area on religious matters and hands down fatwas (legal opinions) on matters referred to him. This is at once logical and necessary since the law in Saudi Arabia is rooted in the religious teachings of the Prophet, Muhammad.

So in Imam Rauf's America, say goodbye to the 7th Amendment right to a jury trial for civil suits (and the 4th Amendment too, of course); farewell to the common law of each of the 50 states, now protected by the 10th Amendment; adios to the 795-year-old right to a jury trial written in blood into the Magna Carta. That's not my idea of an idea worth defending. Liberals and conservatives, Republicans and Democrats, can find common ground in our Constitution for opposing Imam Rauf's mission and his mosque.

"Americans don't want to be governed from the left or the right. They want, like the Founding Fathers, to largely govern themselves with Washington in a supporting--but not dominant--role."

Pollster Scott Rasmussen before the American Legislative Exchange Council, as quoted by John Fund in the Wall Street Journal, August 21, 2010

The Founding Fathers wanted Americans to be able to file civil suits in court and have their cases heard by a jury of their peers, and they didn't want the central government obstructing those rights. James Madison, Richard Henry Lee, and Thomas Paine wanted that; John Adams wanted that; Thomas Jefferson wanted that; and so did George Mason. Like them, the American people are, by nature, Constitutional conservatives, and that is emerging in this election cycle.

"There is no Declaration of any kind, for preserving the Liberty of the Press, or the Tryal by Jury in Civil Causes; nor against the Danger of standing Armys in time of Peace."

So wrote George Mason, a delegate from Virginia to the Constitutional Convention of 1787, when he publicly opposed the new U.S. Constitution as proposed to the states for ratification. Mason was an extraordinarily important patriot and Founding Father, and is described as a "political figure to be reckoned with, spoken of in the same breath with Virginians Washington, Jefferson, Madison, Patrick Henry, and Richard Henry Lee." He was the architect of the Virginia Declaration of Rights in 1776, which preceded the Declaration of Independence and served the cause of liberty from England throughout the Revolution. But at the Constitutional Convention, he objected so strongly to the omission of a Bill of Rights and other weaknesses in the new system of government that he refused to sign the Constitution. Only two other delegates, Elbridge Gerry and Edmund Randolph, agreed with Mason to that degree. It appeared that Mason's objection would go unheeded as state after state ratified the Constitution.

George Mason would not be deterred. In June 1788, he published a pamphlet, Objections to the Proposed Federal Constitution, laying out his points in detail, including the sentence above. Note that he equated the right to a jury trial in civil suits with freedom of the press, that beloved right ensconced in the 1st Amendment and so often defended by Americans of all political stripes. The pamphlet was enormously popular and eventually won over Thomas Jefferson, then minister to France, who wrote to his friend, James Madison, that he was alarmed by "the omission of a bill of rights." Madison saw the legal and political imperative of such an addition to the Constitution. After he was elected to Congress, Madison proposed 17 amendments to the Constitution, of which 10 were ratified by the states, including the 7th Amendment.

For his insistence on a Bill of Rights to accompany the new Constitution, George Mason rightfully shares the title of "Father of the Bill of Rights" with Madison.

Congratulations to trial lawyer - yes, t-r-i-a-l l-a-w-y-e-r - William Becker of Los Angeles and the Thomas More Law Center, which assisted Mr. Becker in winning an important victory for religious liberty. According to a press account, he won a federal court judgment on Thursday "against a California elementary school and three school officials, for violating the First, Fourth, and Fourteenth Amendment rights of a 6th grade student who wore a T-shirt opposing abortion" in April 2008. The school had claimed that the T-shirt was "disruptive" to the school environment, and the school's secretary forced her into the principal's office. Becker and the TMLC defended the girl, Tiffany Amador, filed a lawsuit and threatened a jury trial. Faced with that costly and unattractive possibility, the school caved, and the federal court entered a judgment on all claims.

As I discussed on July 22 when discussing the Howell and Sheldon religious liberty cases won by the Alliance Defense Fund, the 7th Amendment right to a jury trial for civil suits is the "sword and shield" for religious liberty (as well as for parental rights, gun owners' rights, and property rights). But defenders of religious liberty now face threats on three fronts, as I've discussed previously: First, the constant bashing of trial lawyers by the business community sours the American public on the only group of professionals who are licensed and prepared to defend their liberty in state and federal courts. Second, federal preemption by Congress and the federal courts of state statutory and common law, in areas such as the regulation of implanted medical devices and financial services, conditions the American public to surrender their 7th Amendment right to demand a jury trial for their claims. Third, the recent Supreme Court decisions in the Iqbal and Twombly cases are restricting our ability to bring any complaint into federal court, including lawsuits to defend our religious liberty.

FACT: Trial lawyers, not the business community or Congress, enabled Tiffany Amador to practice her Constitutional rights, just as in the Howell and Sheldon cases, by threatening a jury trial. Nothing else mattered.

Conservative politicians who bash trial lawyers as the focus of evil in America, and then also vote to cut off our access to the courts, have no idea of the long-term consequences. It's the role and responsibility of the average American, who is a Constitutional conservative by nature, to rise to the challenge and assert our 7th Amendment rights at all times and against all who threaten them.

In Downes v. Bidwell, 182 U.S. 244, 282-283 (1901), the Supreme Court equated the right to "free access to courts of justice" with the rights of freedom of expression, freedom to worship, and freedom from unreasonable searches and seizures and noted that all of them were "indispensable to a free government." Here's the full quote:

We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments; and to such other immunities as are indispensable to a free government.

Does the current Supreme Court so respect the 7th Amendment right to a jury trial for civil suits? See my previous post.

After almost two months of writing posts and Tweets, I'm more concerned than ever that our Constitutional right to jury trials for civil suits is in jeopardy. In my meetings with senior Congressional staff and opinion leaders in Washington, I find almost wholesale ignorance of the text, centuries-long history, and intent of the 7th Amendment to the Constitution. The war by the business community on trial lawyers has overshadowed the clear language of the 7th Amendment, its foundation in the Magna Carta, the obvious intent of the Founding Fathers, and the respect given to civil jury trials by Supreme Court Justices since the ratification of the Bill of Rights. I find little or no mention of the 7th Amendment on websites of political organizations on the left or right, including those of Tea Partiers and Constitutional conservatives. The march by Congress, the federal bureaucracy, and the federal judiciary towards federal preemption of state statutory and common law continues without regard to the impact on our Constitutional rights for local control and accountability through the decisions of a local jury. The essential right to file a complaint in federal court has been compromised by the Supreme Court's unilateral decisions in the Iqbal and Twombly cases, creating a confusing new standard for pleadings that will worsen with each interpretation by each of the appeals courts. Not just trial lawyers, but a conservative legal review editor, an accomplished attorney for American terrorism victims, and religious liberty advocates are realizing that their favorite causes are ultimately in jeopardy - just read my posts since opening.

The overwhelming majority of Americans don't know that we sign away our 7th Amendment rights every day in what seem to be normal decisions. If you've bought a cell phone, car, computer, digital camera, or high-def TV anytime in the past, say, five years, you've agreed to a clause forcing you to accept a mandatory arbitration process that's stacked against consumers, with no transcript or appeal rights. Our men and women in uniform who are fighting for our freedom automatically lose the 7th Amendment rights held by retired veterans and civilians even when acting in the same circumstances. For instance, a retired vet or civilian who suffers from medical malpractice at the hands of a military doctor on a base can sue the doctor. But a uniformed American - someone who has volunteered to go thousands of miles away to fight terrorism - is barred from filing such a suit, thanks to a 1950 Supreme Court decision. And good luck to any American trying to recover from negligence at the hands of a military contractor with billions of dollars in Defense contracts. Is that really what the Founding Fathers had in mind?

But what we hear in the normal political discourse is that a civil suit and an attempt to move it towards a jury decision is a social evil, a net economic cost or a waste of precious judicial resources. No mention of the Constitution in any of that screed. Well, go search your American history - the Founders had no use for a socio-economic test for the God-given "unalienable rights" enunciated in the Bill of Rights. None. Of course, there's a cost attached to the 1st Amendment (lousy and biased reporting) and the 2nd Amendment (accidental shootings), but plenty of Americans defend the absolute guarantee of those and other of the Bill of Rights. Not so the 7th Amendment - it's the "lost amendment."

A conservative leader told me a few weeks ago that "the 7th Amendment is complex." Well, no it isn't tough, it's just a matter of trust. The Founders trusted local juries over judges, bureaucrats, and even elected politicians. What too many Americans, in and out of Washington, have lost is that trust.

John Adams is rightfully celebrated as one of the most influential and intellectually powerful of our Founding Fathers, with achievements range far beyond serving as the second U.S. President, to assisting in the drafting of the Declaration of Independence and personally drafting the Massachusetts state constitution; negotiating the peace treaty with Great Britain to end the War of Independence; and nominating George Washington to be the first President and John Marshall to be the Chief Justice of the Supreme Court. More recently, he was the subject of historian David McCullough's outstanding book and the terrific HBO mini-series. Adams became especially noteworthy in leading opposition to the Stamp Act of 1765, which the Crown unilaterally imposed as a tax on the American colonies. In a letter to the people of his hometown, Instructions of the Town of Braintree to Their Representative, Adams wrote of the inequity of the tax as a violation of the right to a jury trial: We shall confine ourselves, however, chiefly to the act of Parliament, commonly called the Stamp Act, by which a very burthensome, and, in our opinion, unconstitutional tax, is to be laid upon us all; and we subjected to numerous and enormous penalties, to be prosecuted, sued for, and recovered, at the option of an informer, in a court of admiralty, without a jury.

Two years later, Adams wrote a long letter to the Boston Evening Post, under the nom de plume of "the Earl of Clarendon," in which he replied to a letter published three months earlier in a London newspaper. That letter purported to inform the American colonists that the British Parliament could overturn any of the personal liberties enjoyed by the Americans. Adams reminded the British of their centuries-old commitment, in the Magna Carta and British law, to "a grand division of constitutional powers" between the king and the people, the latter of whom are delegated powers including the following:

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

Conservatives who celebrate the life and contribution of John Adams should remember his dedication to the right, enumerated in the 7th Amendment, to a jury trial for civil suits, without any qualification or limit.

On July 19th, independent journalist Dahr Jamail reported that Gulf Coast fishermen had been told that BP and the $20 billion Feinberg-managed fund would subtract money they earn while working on the cleanup effort from any future damages claims, breaking an express promise by BP made to fishermens' attorneys. He quoted from a letter sent on May 3 to an Interim Liaison Counsel for the BP cases in which A.T. Chenault, a lawyer representing BP, promised, "Lastly, we confirm that BP will not offset payments to vessel owners or other volunteers against claims they might have." I can report that as of this afternoon, those fishermen are still being told that their cleanup earnings will offset their claims filed against BP for lost business earnings. Obviously, Ken Feinberg's firm, which is being paid by BP as he establishes the fund, has done nothing to force BP to keep the promise less than two weeks after the disaster by its attorney to families of the victims. And it's important to remember that BP still hasn't signed any legally binding agreement to pay anything to anybody for any damages.

Meanwhile, the U.S. House is now on its August recess, and the Senate will join it later this week, after it votes to confirm Elena Kagan as the next Supreme Court Justice. The latest Senate bill introduced to deal with maritime liability limits is really weak compared to the House-passed SPILL Act; it not only doesn't give the workers in commercial fishing industry, the most dangerous most dangerous in America, their 7th Amendment right to ask a jury to hold a fishing company accountable for negligence, but it fails to even do the minimum needed for the families of the 11 men who died onboard the Deepwater Horizon in the rig explosion. Incredibly, the bill language leaves open the potential that the families will receive no compensation, because it doesn't repeal the Limitation on Liability Act, not even for personal injuries and wrongful deaths. Senators supporting the commercial fishing and shipping industries have successfully cut the SPILL Act in half. But it won't really matter what that language says, because the half-loaf maritime liability bill is buried inside an energy bill that, on its own, has virtually no chance of enactment.

So Congress will be on vacation while (1) Feinberg lets BP lie to the fishermen who clean up its mess and cut their damage claims; (2) BP gets away with the "Exxon Valdez" modus operandi of ducking a legal commitment to paying all the damages; and (3) the families of the victims, including widows and orphans, still lack a clear roadmap to either recovering for the full amount needed to continue to live or to even exercising their Constitutional rights to pursue BP and its partners in court. BP will have no incentive, let alone legislated requirement, to do anything but stretch out its recovery responsibilities over a 20-year period, as Exxon did.

The Founding Fathers would not be impressed.

ANSWER: Both are subjects of important federal court rulings that federal law preempts state law. Proponents of the Arizona immigration law should recognize that they're just the latest victims of an anti-7th Amendment federal preemption movement that has already spread into many sectors of American life, thanks to Congress, the federal courts, and federal bureaucrats.

As noted by legal scholars (here and here), the decision last week by District Court Judge Bolton to block key sections of the Arizona immigration law was based in standard federal preemption theory, not the unconstitutionality of the law or each section in it. After ruling that a severability clause in the Arizona law was sufficient to block federal preemption of the law in its entirety, Judge Bolton proceeded to analyze each section of the Arizona law for what she termed "the constitutionality of the individual provisions," but in reality she judged each provision against current federal law, and determined the likelihood that the United States would ultimately succeed in blocking each such section (see page 13 of the attached ruling). For instance, when blocking the section of the Arizona law which forbids illegal aliens from working, Judge Bolton wrote,

The provision limiting the use of attestation forms and the civil penalties outlined for document fraud in Title 8 and the robust sanctions for employers who hire, continue to employ, or refer unauthorized workers convince the Court that Congress has comprehensively regulated in the field of employment of unauthorized aliens. These 'extant actions,' in combination with an absence of regulation for the particular violation of working without authorization, lead to the conclusion that Congress intended not to penalize this action, other than the specific sanctions outlined above. See P.R. Dep't of Consumer Affairs, 485 U.S. at 503-04. Thus, the Court finds that Plaintiff is likely to succeed on its claim that Arizona's new crime for working without authorization, set forth in Section 5 C of S.B. 1070, conflicts with a comprehensive federal scheme and is preempted. (See page 27 of the ruling.)

Conservative commentators were upset/outraged at the ruling, see Michelle Malkin's website and Rush Limbaugh's and Glenn Beck's.

Although I agree with most of their political views, none of them know widespread the "federal preemption disease" is in Washington. One of Rush Limbaugh's first statements was, "This, to me, is big because normally federal courts do not side with the federal government against states like this. I could be wrong about this, but I don't think that's standard." Advocates of 7th Amendment rights know that federal preemption of state law by federal courts, bureaucrats, and Congress certainly has been the "standard" in the past decade. Just as an example, thousands of victims of defective implantable medical devices (classified as "Class III" under FDA regulations) know all about federal preemption the hard way. They thought they had a case against the manufacturer of their device (e.g., a pacemaker or artifical limb) in state courts under the Medical Device Amendments of 1976 to the Food, Drug and Cosmetic Act. Users of a defective pacemaker sold by Medtronic suffered internal electrocution inside their body, as the wire from the battery loosened from the pacemaker and sent jolt after jolt through their chest. As I wrote on June 24, the Supreme Court ended their hopes of receovery in the Riegel v. Medtronic decision, when the Court changed 30 years of legal practice by ruling that the 1976 MDA preempted state common law suits. Thousands of potential cases have either been summarily dismissed or not filed. A bill to reverse the Riegel decision is hung up in Congress, the victim of pressure brought by the medical device companies and the business community.

Conservatives just haven't been watching, as the federal preemption octopus has spread its tentacles from Washington into all parts of our lives. I wrote on June 24 that the 7th Amendment is being repeatedly challenged by federal preemption through aggressive regulatory decisions by unelected bureaucrats in Washington. "Federal preemption abrogates 7th Amendment rights by immunizing the affected industry from civil suits, with no accountability for negligence; it leaves injured consumers with no means of seeking recovery for injuries caused by the product or service. Federal bureaucrats love expanding their power and ensuring their permanency by preempting state law, and in recent years they've certainly exercised that power. Bureaucrats in the Food & Drug Administration (FDA), National Highway Traffic Safety Administration (NHTSA), Consumer Product Safety Commission (CPSC), Department of Homeland Security, Pipeline and Hazardous Materials Safety Administration, Transportation Safety Administration and Federal Railroad Administration have all joined in writing federal preemption into regulations."

As I wrote on July 20, the federal preemption wave turns over the authority over our lives to the elites and away from the country. If conservatives are going to complain about the court ruling in the Arizona case, they're going to have start being more attentive to the ever-increasing domination by Washington of our lives, as state statutory laws and our 7th Amendment right to civil justice are preempted by Congress, the bureaucracy, or the judiciary.

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