January 2011 Archives

The Egyptian government has effectively turned off the Internet, shutting down free speech and the right to peacefully organize inside the country. Meanwhile, two leading Senators are re-introducing a bill, rejected last term, that would give President Obama the same unlimited power to shut down free speech in the U.S. on this and any other website, just by pulling the Internet plug. Moreover, if the new bill is identical to the bill considered last year, it will abridge our 7th Amendment right to hold cable, telecom, and internet services companies liable for mishandling the Internet, including, for example, allowing federal snooping into our private lives.

That bill provided extensive and unprecedented federal immunity that would override state law and protect those companies when they certify in writing that they have done complied with government-issued standards for cybersecurity. There is no basis for providing immunity from responsibility to owners and operators of critical cyber infrastructure, simply because they comply with federal legal requirements, and there's no logic to allowing companies to immunize their conduct through a process of self-certification. Recent events such as the Wall Street meltdown and the BP Gulf oilspill make clear that establishing federal liability limits in advance promotes a culture of non-compliance with law and encourages industry to take risks with the lives and property of U.S. citizens.

Today, Tea Party Nation, one of the leading umbrella groups of Tea Party activists in the country, and other conservative groups issued a strong condemnation of the bill and urged Congress to reject it" (registration required). They wrote, "Our First Amendment rights are too valuable to allow a national leader to repeal on because they are offended by political speech or news, Our founding fathers knew to limit the power given a leader who would be angered because that political speech or news was a threat to them. This bill gives too much unfettered power to one person. This is something our founding fathers feared. To our elected Senators, we say, 'Kill this bill!'"

I agree and hope our readers will tell Congress to stop this bill.

Last night in his State of the Union speech, President Obama indicated his support for some type of federal law limiting lawsuits for medical malpractice. And this week, House Republicans introduced H.R. 5, officially titled the "Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011," which is identical to a bill passed by the House GOP in 2005. The bill has three main features:

1) It contains a $250,000 cap on non-economic damages (more restrictive in its design than any cap enacted by any state) and stringent limits on attorney's fees;
2) It applies not only to medical malpractice claims, but also to drug and device cases, nursing home cases, and claims against the insurance industry; and
3) The bill preempts state laws that provide additional protections to patients.

I'm disapppointed that the President and the sponsors of H.R. 5 have targeted this sector of the Constitutionally protected civil justice system for a federal takeover. When Pres. Obama raised it during the SOTU, conservative commentator Ramesh Ponnuru immediately called it "one of the Republicans' crummiest ideas" and added, "There's no need for a federal takeover of medical-malpractice rules." EXACTLY. But apparently the President and senior members of the GOP (the party of "limited government") now aim to limit your 7th Amendment right by using a government mandate, exactly what the GOP opposes in ObamaCare. Bizarre.

Unfortunately, the bill breaks the House Republicans' promise to "stick with the Constitution": it enhances the power of the federal judiciary and Executive Branch over the rights of average Americans; it won't stop medical malpractice; and it attacks rising health care costs with the wrong solution. The bill provides a marker for the differences between the too-business-friendly Republican establishment (the "K Street Republicans" and "Blue Bloods") who dominate Washington, and the Tea Party-oriented, limited-government Americans of all parties (the "Main Street Republicans" and "Blue Collars") who swept the Republican Party into the House majority in the last election. Since last June, I have been posting here on the history and nature of our Constitutionally protected and unalienable right to file civil suits, and the dangers to our rights. More recently, I've written on the relationship between the 7th Amendment, its Constitutional "uncle," the 10th Amendment, and two clauses in the Constitution which are abused simultaneously by President Obama and anti-Obama, anti-7th Amendment Republicans. This bill is the first real test of the fidelity of the Republican Party and Tea Party groups to the Constitution's strict limits on federal power and to the promotion of individual and states' rights in the Bill of Rights.

Here are a set of reasons why Tea Partiers, Constitutional conservatives, Main Street Republicans and Blue Collars should vigorously oppose H.R. 5 and any federal law limiting medical malpractice lawsuits:

1. The Constitutional basis for medical malpractice tort reform is also the basis for ObamaCare, and both violate the 10th Amendment's protections of states' rights. When he introduced H.R. 5, Rep. Phil Gingrey cited the language of the Commerce Clause: of the Constitution. I wrote about the abuse of the Commerce Clause of the Constitution in separate posts on December 6, on December 14, and on January 4. Simply put, the pro-medmal-reform and pro-ObamaCare forces depend on the theory that the Commerce Clause trumps the protection of individual and states' rights in the Bill of Rights. That's a formula for a slide into dictatorship. And as I wrote on December 6, Founding Father George Mason foresaw the holes in the Constitution and argued against ratification of the Constitution without a Bill of Rights.

2. A better name for any such bill is the "Abortion Butchers & Sexual Abusers Civil Immunity Act of 2011." If enacted, doctors who kill babies and their mothers (see the Gosnell case) could leave jail after their sentence is up, then stop by the bank to pick up their blood money and start over. Why would a pro-lifer (like me) ever want to limit the amount of money an abortion victim could take from killers and butchers in a civil suit?! And it even protects doctors who commit intentional torts, such as sexual abuse! The broad scope of H.R. 5 also protects bad drug and device companies which have been criminally prosecuted.

3. The bill does nothing to stop medical malpractice, which kills up to 100,000 Americans annually and injures up to ten times that number. The bill doesn't improve hospital hygiene, medical records technology, or any other medical practice. Medical malpractice lawsuits can't exist if there's little or no medical malpractice.

4. We have a medical malpractice crisis, but not a medical liability crisis. The number of medical malpractice claims has been headed down - yes, DOWN - for years, down 15 percent from 1999 to 2008. The insurance industry's own data reveals that the amount they've paid out for malpractice claims dropped by over 40% between 2002 and 2008, when adjusted for inflation. H.R. 5 is like fixing a flat tire by emptying the radiator. It misses the point and attacks a non-problem.

5. This bill would increase government spending, because those unable to hold wrongdoers accountable will become dependent on Medicare and Medicaid for payment of their medical costs. The taxpayers will be forced to pay for incompetent doctors and for drugmakers' and medical device manufacturers' faulty products.

6. Why would the GOP immunize industry groups which endorsed ObamaCare and enabled its enactment? The AMA and Big Pharma gave us ObamaCare's unconstitutional mandate, budget-busting spending hikes, and huge tax increases. THANKS FOR NOTHING.

7. Medical malpractice today, religious liberty and gun rights tomorrow? There is no differentiation regarding medical malpractice lawsuits under the Constitution. This would be the same as capping damages in suits against schools firing Christian professors or limiting the size of gun clips.

8. The Founding Fathers were never for tort reform. Back in September, I offered to buy the best dinner in Washington to anyone to shows me just ONE pro-tort reform quote by any Founding Father. I've had no takers and I'm not worried, because none of them proposed limiting our 7th Amendment rights.

To the contrary, the Founding Fathers endorsed and protected the "unalienable right" that a citizen could bring civil claims to a local court of law, before a jury of peers. That right had been expressly recognized in British law for centuries, back to the signing of the Magna Carta in 1215. The posts linked in the right sidebar on this site's homepage provide ample proof that the Founding Fathers were for civil suits and for the lawyers who bring them, period.

The guarantees of the Seventh Amendment [right to civil jury trial] will prove burdensome in some instances; the civil jury surely was a burden to the English governors who, in its stead, substituted the vice-admiralty court. But, as with other provisions of the Bill of Rights, the onerous nature of the protection is no license for contracting the rights secured by the Amendment.

Chief Justice William Rehnquist, writing in Parklane Hosiery Co. Inc. v. Shore, 439 U.S. 322 (1979).

This afternoon, ABC News reported this horrendous story: "An abortion doctor in Philadelphia has been charged with eight murders, including seven babies who prosecutors say were born alive then killed with scissors. Dr. Kermit Gosnell, 69, and nine employees from his West Philadelphia Women's Medical Society were arrested Wednesday. He and his staff also are charged with killing a woman who was given a lethal dose of Demerol." The babies were born alive and then killed "by cutting into the back of the neck with scissors and severing their spinal cord." The grand jury presentment and report on the doctors are available in full from the Office of the District Attorney for the City of Philadelphia (WARNING: Graphic photos in report).

In cases such as this, there should be two outlets for use by victims in exposing the practices of a horrible doctor, before he and his staff are so bad that the criminal justice system takes over. Unfortunately, it looks like one of those, the state's regulatory system over doctors, completely failed according to the story: "(S)tate regulators ignored numerous complaints about Gosnell's clinic and his office hadn't been inspected since 1993." The second outlet, that of filing a civil malpractice suit, was apparently pursued - ABC News says the doctor was the subject of "at least 10 malpractice suits" - but none of them apparently reached a jury and the public exposure of the doctor's practices. For whatever reason, no local jury of the victims' peers was convened to provide some justice and hold the doctor accountable in accordance with the 7th Amendment to the Constitution.

Those Members of Congress who insist on "medmal reform" should remember this case! The Founding Fathers knew, from centuries of British experience, that citizens needed to have a forum within which they could present evidence to their neighbors of their civil claims. The Founders knew that a local jury is the best way to hold liars, cheaters and murderers accountable for their crimes and negligence, including for the most heinous acts. The Founders wrote about it, fought for it, killed for it and were willing to sacrifice "our lives, our fortunes and our sacred honor" for the unalienable right.

"Medmal reform" could result in more cases like the Philly House of Horrors, hidden from view until it's too late for innocent victims. Would Congress really try to cap the damages for victims of the Philly House of Horrors? Surely dead babies should not have their life valued at a predetermined amount.

As the ObamaCare repeal effort kicks into high gear in Washington, there's a new letter from 168 economists who say that ObamaCare will break the budget and kill jobs, in contrast to the CBO's analyses released last year and a couple of weeks ago. The economists signing the letter include two former CBO directors and four Federal Reserve economists, including a Nobel Laureate. Quoting from the letter (full text here):

The Patient Protection and Affordable Care Act contains expensive mandates and penalties that create major barriers to stronger job growth... The law also levies roughly $500 billion in new taxes that will enter the supply chain for medical services, raising the cost of medical services... At a minimum, it will add $1 trillion to government spending over the next decade. Assertions that these costs are paid for are based on omitted costs, budgetary gimmicks, shifted premiums from other entitlements, and unsustainable spending cuts and revenue increases. A more comprehensive and realistic projection suggests that the Affordable Care Act could potentially raise the federal budget deficit by more than $500 billion during the first ten years and by nearly $1.5 trillion in the following decade.

I already documented how millions of Americans know that the ObamaCare is a budget-buster and job-killer - they know that CBO's claims that repealing ObamaCare would increase the deficit is baloney - they know that CBO has been wrong time and time again on its budget estimates. And the top two House leaders don't believe the CBO's ObamaCare numbers either, accurately characterizing them as "risky guesswork."

So why will a GOP House committee chairman continue to rely on CBO's estimates to start an effort to kill our 7th Amendment rights through "medical malpractice reform?" Average Americans, his leaders, and top economists don't believe the CBO, why does Chairman Smith?

I posted yesterday and on January 6 about the Congressional Budget Office's long history of unbelievable budget forecasting errors. It's easy to think of the CBO's products as just "big numbers," but Congress might actually use CBO's projections as the basis for abridging our 7th Amendment rights by ordering us to not sue bad doctors. Last year, CBO projected that implementing some form of "medical malpractice reform" would save the federal government $54 billion over ten years.

It's bad enough that annual federal budgets and our taxes are based on such an erroneous set of forecasts. But worst of all, implementing CBO's projection of "savings" of $54 billion could actually result in more deaths and injuries. An analysis of the CBO's medmal projections by the Center for Justice and Democracy uncovered the shocking numbers. According to the CDT analysis, CBO admits that "imposing limits on [the right to sue for damages] might be expected to have a negative impact on health outcomes." Quoting from the CDT analysis: "CBO notes that one study finds such tort restrictions would lead to a .2 percent increase in the nation's overall death rate. If true, that would be an additional 4,853 Americans killed every year by medical malpractice, or 48,250 Americans over the ten-year period CBO examines." (Emphasis mine.) Moreover, according to the CDT analysis, "another 400,000 or more patients could be injured during the 10 years examined by CBO (given that one in ten injured patients die)." (Emphasis mine.)

The House Judiciary Committee will probably hold its first hearing on the medical malpractice issue next Thursday. The committee chairman has cited the CBO cost savings as justification for imposing limits on whom we can sue when medical providers harm or kill through their negligence. I can't believe that the Congress would commit us additional deaths and injuries by throught he heavy heand of federal law which limits our Constitutional rights.

I've already written on the danger to our unalienable rights protected by the 7th and 10th Amendments from an abuse of the Commerce Clause in Article I, Section 8, Clause 3 of the Constitution. The clause states that the United States Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Too many conservative groups have looked on in silence as Congress and the courts have enabled federal preemption of state legislatures and state jury authority in favor of federal regulatory power, through the Commerce Clause in conjunction with the Supremacy Clause in Article VI. Even the libertarian Cato Institute has trumpeted the use of the Commerce Clause in federal preemption, with it's legal studies director proclaiming, "...if the Commerce Clause was meant for anything, it was meant to ensure the free flow of goods and services among the states, and jury trials can really make a mess of that if pharmaceutical companies, for example, have to have 50 different labels for warnings on their medications." The irony is that both ObamaCare and federal preemption rest, in large part, on an abuse of the Commerce Clause, which is lost on too many "experts" in Washington who attack the former (rightfully), but flip and defend the latter.

So it was interesting to see Supreme Court Justice Clarence Thomas issue a warning this week about the dangers of an unlimited Commerce Clause. Justice Thomas issued an unusually long dissent to the Court's denial of a request to hear a case in which the Commerce Clause was used as the basis to criminalize the purchase of body armor by those convicted of violent felonies. In the case of Alderman v. U.S. Justice Thomas disagreed with the lower court's ruling that the Supreme Court's 1977 decision in another Commerce Clause case, Scarborough v U.S., had enabled Congress to pass laws like the body armor ban. In criticizing the lower court, Thomas wrote, "That logic threatens the proper limits of Congress' commerce power and may allow Congress to exercise police powers that our Constitution reserves to the states."

With Justice Scalia in concurrence, Justice Thomas issued the following warning:

Further, the lower courts' reading of Scarborough... could very well remove any limit on the commerce power. The Ninth Circuit's interpretation of Scarborough seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw 'the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile onthe basis that the candy once traveled . . . to the store from Hershey, Pennsylvania.' United States v Bishop, 66 F. 3d 569, 596 (CA3 1995) (Becker, J., concurring in part and dissenting in part). The Government actually conceded at oral argument in the Ninth Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce. Such an expansion of federal authority would trespasson traditional state police powers.

Commentators are theorizing whether the majority of Justices were signaling their approval of ObamaCare through their refusal to take the Alderman case. Perhaps, and that would be bad enough, but my fear would extend way beyond ObamaCare to a number of provisions in the Bill of Rights. As I wrote on December 6, Founding Father George Mason warned of an unlimited federal government and a Congress which would "grant Monopolies in Trade & Commerce, constitute new Crimes, inflict unusual and severe Punishments, & extend their Powers as far as they shall think proper; so that the state Legislatures have no Security for their Powers now presumed to remain to them, or the People for their Rights." Might Congress interfere with the free exercise of religion, the right to free speech, or the right to bear arms by somehow tying the exercise of such rights to Congress' regulation of interstate commerce? How could the courts possibly balance Congress' unlimited discretion with our unalienable rights? What would stop Congress from exploiting an unlimited Commerce Clause to preempt even more fields of state commercial regulation, such as through the takeover of county health inspections by the FDA, with immunity for those businesses from local jury verdicts?

We've already seen Congresses of both parties take quick advantage of any authority to can establish under the Commerce Clause. When will the pendulum swing the other way?

Pollster Scott Rasmussen's latest release shows that, "Only 29% predict that repeal (of ObamaCare) will increase the federal budget deficit." In other words, the vast majority of Americans don't believe the Congressional Budget Office's preliminary estimate that repealing ObamaCare would add up to $230 billion to the deficit. Americans aren't stupid; we realize that interfering with market choices and adding layers of federal bureaucracy at HHS to run part or all of the health care system can never reduce the deficit. The poll finding comes a week after House Speaker John Boehner and Majority Leader Eric Cantor personally challenged CBO's guesstimates on the impact of ObamaCare.

So why is the House Judiciary Committee Chairman, Rep. Lamar Smith, still citing CBO's estimate that limiting our 7th Amendment rights to sue for medical malpractice will magically produce $54 billion in deficit reduction? Doesn't he realize that CBO has a long history of being WRONG in its deficit estimates for much of the past twenty years? For instance: In 1993, CBO forecast that the deficit in fiscal year 2002 would be $579 billion. Two years later, they reduced the FY2002 forecast to $349 billion, Two years later, they reduced it again, to $188 billion. By 2001, they had figured that the budget would be IN SURPLUS by $176 billion.

Why should any American, and especially a House committee chairman, trust any forecast that is so wrong and can change by so much? If CBO can't even consistently forecast whenther we'll have a federal deficit or a surplus a few years from now, how can Congress count on it as the basis for possibly abridging our unalienable right to a civil jury trial?

(I posted the following on Tea Party Nation yesterday, summarizing several original posts here, but TPN restricts reading to registered members, so here it is.)

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Who will stand up to protect our unalienable right to a jury trial for civil suits, which is supposed to be protected under the 7th Amendment to the Constitution? That was a right fought for by English peasants on the plains at Runymede in 1215, and protected by Article 39 of the Magna Carta, the charter for English law and then American constitutional democracy. The Founding Fathers wrote early and often, explicitly supporting our right to bring our civil claims before a jury of our peers. Some quotes:

"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

But today the right to a civil jury trial is under constant attack, steadily eroding our ability to protect our rights and hold others accountable for their actions. Conservatives and Tea Partiers should support the civil justice system for all kinds of reasons, such as to protect religious liberty, gun rights and the unborn; punish terrorist financiers; limit the power of bureaucrats, and ensure local control.

And who will uphold the 10th Amendment and ensure that state laws and jury decisions aren't overruled by federal law through pre-emption? The 7th and 10th Amendments are joined at the hip; pre-emption of state jury decisions erodes both amendments and enhances federal agencies' power at the expense of average Americans.

Tea Partiers might be surprised to find out that there's one profession in America that depends completely on the exercise of rights protected by the 7th and 10th Amendments. It's the trial lawyers, who depend on the access to civil justice at the state and federal level to defend our rights through civil suits. And it's not just those who work in law firms filing lawsuits over product liability or personal injury. Trial lawyers working for non-profit groups sue to protect believers who want to practice their faith; they protect property owners from land-grabbing municipalities. Gibson Vance, the President of the American Association for Justice, the largest trial lawyers' association in the world, spoke at the National Convention of the Federalist Society on November 20. Mr. Vance discussed the history of the right to civil jury trials, as protected in the 7th Amendment of the Constitution, and the current dangers to our rights through mechanisms such as federal preemption of state jury decisions.

Last week, Mr. Vance reiterated many of those points in an article posted on the Huffington Post, titled "Constitutional Conservatives and the 7th Amendment." He urged newly elected Congressmen from the ranks of Constitutional conservatives and Tea Party members to protect our 7th Amendment rights in future votes. You can read the entire article there, and here are some excerpts:

The constitutional conservatives' stated commitment to our country's founding principles is at this point widely known. But what is not widely known is where this group will come down regarding "tort reform" - or limiting people's 7th Amendment right to trial by jury.

The right to a trial by jury for civil suits dates back almost 800 years, to the signing of the Magna Carta. Article 39 of the Magna Carta specifically guaranteed the right to a jury trial for civil suits and criminal cases.

Our Founding Fathers also agreed with the importance of a trial by jury. In the words of James Madison, "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."

Votes on tort reform will be one of the first true tests of newly-elected Constitutional Conservatives. In fact, the House will vote on Wednesday to repeal the health care reform law and take steps toward creating an alternative plan that would include limiting the legal rights of patients. These members should consider how this idea conflicts with the limited government they promote.

The concept of tort reform is an assault on states' rights and individual freedom. Though politics may try to disguise our commonalities, constitutional conservatives claim adherence to very similar principles as do trial attorneys: preserving and promoting individual liberty, responsibility and the rule of law.

Our founding fathers had no intention of making the 2nd Amendment more or less important than the 7th, or any other part of the Bill of Rights. We cannot pick and choose which parts of the Constitution to follow or to ignore.

Any Congress, whether run by Democrats or Republicans, which tries to impose "tort reform" or "medical malpractice reform" to limit our right to seek trial by jury for our civil suits, is actually acting against the express desires of the Founding Fathers and subverting our Constitution. If we're going to oppose ObamaCare, which would tell us which doctors we can and cannot use, we should also oppose federal tort reform, under which Uncle Sam could tell us which doctors we can't sue when they screw up.

On Thursday, the new leaders of the House, Speaker John Boehner and Majority Leader Eric Cantor, criticized the Congressional Budget Office for a preliminary analysis that repealing ObamaCare would cost $145 billion through the end of the decade, and $230 billion by 2021. Last week, Mr. Cantor even accused the CBO of outright "budget gimmickry" in its calculations last year on the supposed "savings" that would result from ObamaCare.

Speaker Boehner and Majority Leader Cantor are right to doubt CBO's analyses of ObamaCare's budgetary impacts. The Congressional Budget Office has a long, inglorious history of large-scale, massive errors in its scoring of budget proposals. In August 2001, economist Alan Reynolds wrote with details of CBO's many blunders in estimating deficits and surpluses - an excerpt:

In 1993, the CBO predicted that the deficit would soar to $653 billion in 2003. This week, they said that same budget will be in surplus by $172 billion. Little of that $825 billion revision can be explained by legislation or luck. Nearly all of it reflects the magnitude of past forecasting blunders...

Past forecasts often overstated deficits by huge amounts even for the current year -- by $78 billion in 1992 and $102 billion in 1997. In early 1998, the CBO thought the next year's surplus would be $2 billion, but it turned out to be $125 billion. Looking further ahead, CBO errors have been staggering. Next year's budget, now estimated to be in surplus by $176 billion, had once been expected to show deficits of $579 billion (per the CBO's 1993 forecast), $349 billion (1995 forecast), and $188 billion (1997 forecast).

CBO's comedy of errors extended throughout the decade just ended. Liberals complained back in 2001 about CBO's "risky" and "guesswork" projections as the basis for the Bush tax cuts. A more recent analysis of CBO's budget projections and the actual results shows how inaccurate the CBO has been throught the past decade. Last August, the CBO tried to please both sides in the tax cut debate, predicting that extending tax cuts would provide a short-term boost in GDP, then flipped-flopped and predicted extension would "reduce long-term economic growth." These guys are truly unbelievable!

So it's inconceivable that a new House Republican committee chairman would (1) ignore the history of CBO's enormous mistakes, (2) defy his own leadership, and (3) depend on a risky CBO analysis as the basis for abridging our 7th Amendment rights. Yet Judiciary Committee Chairman Rep. Lamar Smith is doing just that, announcing that he'll try to stop Americans from filing lawsuits in state courts over medical malpractice. And he's aiming for achieving a CBO estimate of $54 billion of "savings" in health care costs. How the CBO reached its estimate is another example in a long line of mistaken assumptions and miscalculations that we've seen from CBO over the years. I'll discuss that estimate in another post in the near future.

Meanwhile, there's no question that the House Judiciary Committee Chairman is using CBO's risky guesswork, thoroughly discredited by history and disowned by the Chaiman's own leadership, to enact federal law which would impose limits on our Constitutional right to take our malpractice claims before a local jury of peers. It would also violate any notion he might have of promoting and protecting the sanctity of state courts from federal interference.

Chairman Smith's announcement is in open defiance of House leadership and a repudiation of their criticism of CBO's methodology. Will Speaker Boehner and Majority Leader Cantor let their committee chairmen set policy based on CBO's "budget gimmickry" while selectively condemning it? If so, they will look like hypocrites, lose the ObamaCare debate and also the high ground in battling the deficit.

In November I wrote on the remarks by Gibson Vance, President of the American Association for Justice, the largest trial lawyers' association in the world, at the National Convention of the Federalist Society on November 20. Mr. Vance discussed the history of the right to civil jury trials, as protected in the 7th Amendment of the Constitution, and the current dangers to our rights through mechanisms such as federal preemption of state jury decisions.

Today, Mr. Vance reiterated many of those points in an article posted on the Huffington Post, titled "Constitutional Conservatives and the 7th Amendment." He urged newly elected Congressmen from the ranks of Constitutional conservatives and Tea Party members to protect our 7th Amendment rights in future votes. You can read the entire article there, and here are some excerpts:

The constitutional conservatives' stated commitment to our country's founding principles is at this point widely known. But what is not widely known is where this group will come down regarding "tort reform" - or limiting people's 7th Amendment right to trial by jury.

The right to a trial by jury for civil suits dates back almost 800 years, to the signing of the Magna Carta. Article 39 of the Magna Carta specifically guaranteed the right to a jury trial for civil suits and criminal cases.

Our Founding Fathers also agreed with the importance of a trial by jury. In the words of James Madison, "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."

Votes on tort reform will be one of the first true tests of newly-elected Constitutional Conservatives. In fact, the House will vote on Wednesday to repeal the health care reform law and take steps toward creating an alternative plan that would include limiting the legal rights of patients. These members should consider how this idea conflicts with the limited government they promote.

The concept of tort reform is an assault on states' rights and individual freedom. Though politics may try to disguise our commonalities, constitutional conservatives claim adherence to very similar principles as do trial attorneys: preserving and promoting individual liberty, responsibility and the rule of law.

Our founding fathers had no intention of making the 2nd Amendment more or less important than the 7th, or any other part of the Bill of Rights. We cannot pick and choose which parts of the Constitution to follow or to ignore.

The new House GOP Majority is set to repeal ObamaCare, which is fine with me, and try to save health care spending through some amorphous medical malpractice "reform." Here is the short bill that the House will pass on Friday to instruct House committees to look for those "savings." BUT WAIT, on December 17, they also promised to cite a "Constitutional authority" for each bill, and advised the Members to seek help from certain named think tanks, including some top conservative groups. But where will they find the authority for medmal reform, which abrogates the 7th Amendment right to civil jury trials and the states' rights protected by the 10th Amendment?

It's a good guess that the "conservative" organizations cited in the December 17 memo will point to the Supremacy and Commerce Clauses as their source for federal medmal reform of any kind. I wrote on December 6 that two top Republican legal experts, including one at the Cato Institute, cited those two clauses at a Federalist Society panel as rationale for the federal preemption of state jury decisions in medical device and drug cases. But they can't hide their inconsistency. As I wrote on December 14, the ObamaCare decision exposed the Cato Institute as hopelessly inconsistent to the point of absolute hypocrisy. One Cato legal expert condemns the use of the Commerce Clause as a basis for the ObamaCare takeover of health care, while another Cato legal expert defends the Commerce Clause as the basis for tort reform through federal preemption of state jury decisions in drug and medical device cases. Is that really the type of guidance that House leaders want to give their new committee chairmen?

Other organizations cited in the December 17 memo are no better; on October 6, I documented the compromise of many conservative groups on Constitutionally protected rights. None of the mainstream conservative groups are willing to defend the 7th Amendment, and they also don't appreciate how federal preemption of state jury decisions neuters the 10th Amendment, as well as the 7th Amendment.

As I wrote on December 14, the co-"Father of the Bill of Rights," George Mason, knew 222 years ago that some group would eventually try to jam Supremacy Clause-driven federal law down our throats, and he insisted that the ultimate power of the Supremacy Clause be limited by the Bill of Rights. Will Tea Partiers accept the rollover of the 7th and 10th Amendments by the new majority, or will it speak up? Will they realize that compromising the right to sue for medical malpractice would also compromise the right to sue to protect religious liberty; protect the unborn and womens' health; fight bureaucratic power; and promote other conservative causes. WE THE PEOPLE cannot allow any Congress to use the Supremacy and Commerce Clauses to gut our unalienable rights.

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