May 2011 Archives

"Impermissible." That's the word used last week by pro-tort-reformer Ted Frank on the Point of Law legal blog to describe the Constitutional status of H.R. 5, the "HEALTH Act," designed to pre-empt most health care-related lawsuits around the country. His post conceding that Congress should not "impermissibly federalize all medical malpractice litigation" capped a stunning week in which intellectual support for H.R. 5 evaporated.

As I wrote here earlier, on May 21, Prof. Randy Barnett, the GOP's favorite Constitutional scholar, wrote a scathing op-ed in the Washington Examiner and a Volokh Conspiracy blog post, both of which condemn H.R. 5 as a breach of states' rights (attached as Acrobat docs). He asked out loud if the House GOP are "fair-weather federalists." His op-ed was an intellectual and political earthquake; it was very widely distributed and the subject of an article in 'The Hill' on May 23. And note that Barnett's objections are NOT resolved by exempting state constitutions and courts from the reach of the bill, as Democrats tried to do during two committee markups.

On May 22, Prof. Ilya Somin of George Mason Law School, another Tea Party-side scholar, concurred with Prof. Barnett in a Volokh blog post, and he took his own shots at GOP supporters of H.R. 5. "Hopefully, at least some Republican conservatives will begin to see that you can't advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other."

On May 23, Ted Frank wrote his concession. Quote: "It's easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care. It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform." (Emphasis mine.)

That day, another noted legal expert on the pro-tort reform side, Walter Olson of the Cato Institute, also conceded that Barnett is right (attached in an Acrobat document). A short segment: "Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems. Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government's constitutionally prescribed powers is it acting? Even if it can identify such authority, it should also ask: is it a wise idea--consistent with what one might call a prudential federalism--to gather yet more power in Washington at the expense of the states? Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court's very expansive "substantial effects" doctrine..." (Emphasis mine.)

On May 24, conservative legal expert Jonathan Adler added his opinion while commenting on Olson's post: "Olson is anything but an opponent of tort reform generally. Indeed, he's been one of the litigation explosion's most prominent critics. But he recognizes that support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme." (Emphasis mine.)

On May 26, Prof. Randy Barnett was interviewed on the nationally syndicated 'What's Up' radio program by host Terry Lowry about how H.R. 5 violates the limitations on the powers granted to the federal government in the Constitution and Bill of Rights. You can listen to the first segment of his interview here and listen to the second segment of the interview here (MP3 audio files). Starting at 2:32 of the second segment, he said, "Congress doesn't really have the authority to do tort reform legislation because that has historically been within the province of the states..." He proceeded to reiterate the other points of his op-ed and that federal tort reform legislation is an abuse of the Commerce Clause, a point that Rep. Ted Poe made during consideration of H.R. 5 by the House Judiciary Committee.

Also recall that Constitutional conservative Rob Natelson of the Independence Institute in Colorado wrote a letter to the House Judiciary and Energy & Commerce Committees weeks ago to advise them that H.R. 5 is unconstitutional, with arguments very similar to those of Prof. Barnett. So that's six Constitutional experts against H.R. 5, from Natelson to Adler.

There's only one important question left for Republicans about H.R. 5, and it's purely political: WHY would the House GOP run over the Constitution to reward those medical associations which were the co-conspirators in the enactment of ObamaCare, thus shoving the unconstitutional individual mandate down our throats?!

Prof. Ilya Somin of the George Mason University School of Law is the Co-Editor of the Supreme Court Economic Review, one of the country's top-rated law and economics journals. His work has been published in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, Georgetown Law Journal, and numerous media outlets. He has been quoted or interviewed by the New York Times, Washington Post, BBC, and the Voice of America, among other media, and he testified at the Senate Judiciary Committee confirmation hearings for Supreme Court Justice Sonia Sotomayor. He's expressed conservative positions on ObamaCare, eminent domain abuse, property rights, and states' rights. Like Prof. Barnett, he's co-authored amicus briefs on behalf of plaintiffs seeking to declare ObamaCare unconstitutional. In other words, he's a Constitutional conservative, Tea Party-side legal expert, just like Rob Natelson and Randy Barnett.

And Prof. Somin is another of the growing group of the conservative legal experts now opposing any federally imposed tort reform law, starting with H.R. 5, the "HEALTH Act." Writing yesterday on the legal blog, the "Volokh Conspiracy," he commented favorably on Randy Barnett's post of Sunday. Wrote Prof. Somin:

I'm happy to see that his critique is having an impact. Hopefully, at least some Republican conservatives will begin to see that you can't advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other.

In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states' ability to regulate conduct outside their borders.

The previous post to which he referred was in February also on Volokh, and I admit that I missed it at the time. In that post, he wrote the following:

In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any "activity." Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward.

Federal reform is also largely unnecessary to solve the problem of excessive tort awards. Interstate competition can be just as effective as federal mandates, often more so. If a state allows excessive tort suits, many businesses will refuse to operate there or charge higher prices. This in turn reduces state tax revenue, forcing state legislatures to curb their courts.

So now we have three real Constitutional conservatives on our side: Rob Natelson of the Independence Institute, GOP & Tea Party legal rockstar Prof. Randy Barnett, and George Mason Law Prof. Ilya Somin are all telling the Republicans that H.R. 5 and federal tort reform bills are unconstitutional. AND I'm sure there will be more. AND we have a bipartisan letter from the leadership of the National Conference of State Legislators saying the same thing.

To date, NOT ONE real Constitutional conservative, Tea Party-side legal expert will opine in favor of the constitutionality of H.R. 5. And I'd be shocked to see one do so, since that's an intellectually dishonest position.

Prof. Randy Barnett of Georgetown University Law Center is arguably the GOP's favorite Constitutional scholar. He co-authored an amicus brief for the National Federation of Independent Business in the 11th Circuit review of the State of Florida's anti-ObamaCare case; he has written often about and testified to the unconstitutionality of ObamaCare before the House Judiciary Committee and the Senate Judiciary Committee; and he's among the leading experts on the original intent of the Founding Fathers' writings, including the Constitution and Bill of Rights. Just last week, he appeared with Congressional Republicans to announce the introduction of the Repeal Amendment, which would allow states to repeal federal laws under certain conditions.

So it's stunning that Prof. Barnett has written two pieces today on the unconstitutionality of any federally enacted tort reform, beginning with H.R. 5, the Republican-sponsored "HEALTH Act," which would severely limit all health care-related lawsuits. In an op-ed appearing in the Sunday edition of the Washington Examiner, Prof. Barnett wrote:

Congress is now considering the "Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011." This bill alters state medical malpractice rules by, for example, placing caps on noneconomic damages. But tort law -- the body of rules by which persons seek damages for injuries to their person and property -- has always been regulated by states, not the federal government. Tort law is at the heart of what is called the "police power" of states... Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits. Constitutional law professors have long cynically ridiculed a "fair-weather federalism" that is abandoned whenever it is inconvenient to someone's policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers "reserved to the states" as affirmed by the Tenth Amendment, they will prove my colleagues right.

And in a piece on his blog hosted on the pages of the "Volokh Conspiracy," he added to his objections as follows:

When I first heard that the House was planning on pursuing tort reform, I was skeptical that there was a constitutional basis for this effort at the federal level, but thought maybe there is some legitimate federal power that, if cleverly deployed, could influence tort law at the state level. So I was disappointed when I read the law firm report on which the sponsors of the bill relied for 'constitutional authority.' The report justified the bill under the 'substantial effects doctrine.' Not only does this post-New Deal doctrine extend Congress's power well beyond the regulation of interstate commerce, it does so, not by independently determining whether the activity being regulated actually has a substantial affect on interstate commerce, but instead on whether Congress had a 'rational basis' for believing that it did. Thus does the Court defer to Congress, while the House Republicans -- just like Congressional Democrats -- defer to the Court's assessment of constitutionality. This 'double deference' is one of the secret (to the general public) tricks by which the branches of the federal government can claim to be adhering to the Constitution while actually ignoring it. It is one of the ways important passages of the Constitution's text became 'lost.'

But the 'findings' of the bill are even worse:

"EFFECT ON INTERSTATE COMMERCE"

"Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers."

These 'findings' are based on the effects on interstate commerce, not only of the 'health care and insurance industries,' but also of 'health care liability litigation systems throughout the United States' -- that is, on the affects on interstate commerce of state courts themselves! So Congress has the power to regulate tort law because state courts affect interstate commerce. By this principle, Congress has a general police power over any matter not adjudicated by state common law courts.

Prof. Barnett's logic is irrefutable, if you believe in restoring the original intent of the Constitution and Bill of Rights. If, instead, you adhere to the position that the post-Wickard line of Supreme Court decisions justifies H.R. 5, then... get ready for ObamaCare.

This is an intellectual earthquake. Prof. Barnett's two pieces and the posts and letter by Constitutional conservative Rob Natelson of the Independence Institute trump the theories behind the business community's long war to pre-empt all state laws and courts and deprive us of our Constitutional rights. Now the battle in Congress is fully joined. It's the Founding Fathers vs. the U.S. Chamber. It's the original intent of the Constitution and Bill of Rights to limit Uncle Sam's power vs. new judge-made doctrines expanding Uncle Sam's power. It's the moral authority of principle and conscience vs. the naked power of business-side PAC dollars and scores of lobbyists. If GOP Congressmen and Senators vote their conscience, it'll be no contest. Call your Congressman and tell him to save the Constitution and Bill of Rights by opposing H.R. 5.

On April 5, I posted on the letter written by Constitutional scholar Rob Natelson to Congress, that "H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments." That bill would place new federal limits on lawsuits filed against a broad range of health care-related companies, including doctors, hospitals, drug & device companies, insurance companies, and nursing homes. It would also impose a federal wage scale on attorneys involved in those cases. Professor Natelson is an expert on the Founding Era; a former Republican candidate for Governor of Montana; and now Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Colorado, a non-partisan, free-market-oriented public policy research organization.

Among his other points was a direct criticism of a section in H.R. 5 which purports to protect states' rights. Natelson doesn't buy it: "Moreover, the section grants protection only when the state undertakes policy choices preferred by Congress. Thus, state laws that offer 'greater... protections for health care providers' are preserved, while those that offer less are overridden. States that enact statutory caps on damages receive protection, while those that make the traditional common law choice -- leaving the amount to jury and judge -- receive no protection. The section is, in other words, more in the nature of an insult to the states than a protection of federalism."

Rob Natelson reiterated his opposition to H.R. 5 yesterday, in a new post on his website, the Electric City Weblog. I quote:

"Yet, as incredible as it may seem, in light of the message send by the 2010 elections, Congress continues to consider bills to expand government. A good example is HR 5, which if enacted, would be a massive intrusion into the state court systems. (sic)

Up till now the state courts have been one of the few areas of life relatively untouched by federal meddling. That is as it was supposed to be: State court systems are central to state sovereignty. Moreover, the Constitution reserves most issues of civil and criminal justice to the exclusive authority of the states, rather than the federal government. When the Constitution was being considered, its supporters said explicitly that state court systems are constitutionally out-of-bounds for Congress.

All members of Congress take an oath to uphold the Constitution. Many Republican members were elected after specifically pledging to honor constitutional limits. You would think they would honor their word for at least a few months. But just weeks after their swearing-in, over 100 members (mostly Republicans) had signed onto HR 5.

HR 5 is advertised as addressing abusive lawsuits against physicians, but it goes far beyond that. It would regulate in detail just about every American lawsuit that has anything to do with health care: What an injured party can allege in his or her initial filing, the damages he or she can recover, how damages are disbursed, burdens of proof, what the jury may and may not consider, which state laws survive and which don't. HR 5 even directs state judges to conceal pertinent information from the jury.

It's not certain the Supreme Court would uphold all of this bill. But it is certainly a flagrant invasion of local control.

Here's a real irony: The Republicans supporting HR 5 justify it by parroting exactly the same ridiculous "Commerce Clause" claims the President uses to justify ObamaCare. (Emphasis mine.)

Of course, it's not like Congress doesn't have anything else to do. It has its hands more than full trying to rescue the country from a financial train wreck. Congress should be concentrating on cutting the federal deficit, which this year will approach 45% of expenditures. It should de-fund organizations that essentially lobby on the taxpayers' money. It should encourage economic growth (and thereby increase revenues) by reforming the tax code to close loopholes and cut rates.

Similarly, Congress could allow states to contract with each other to opt out of ObamaCare. Most important of all, it could propose constitutional amendments to term-limit members of Congress and require a balanced budget. In the 1990s, Congress came within one vote of sending a balanced budget amendment to the states. If it had done so we would not be in the fiscal mess we are today.

If the congressional leaders can't find the two-thirds majority needed in each house to propose an amendment, they could encourage the states to use the alternative procedure the Constitution gives the states for proposing amendments.

Tea Party folks who thought they save the country around in one election are learning that we have a very long road ahead."

I keep trying to tell Republicans that the Founding Fathers protected the unalienable right to a jury trial for civil suits, knowing that the civil litigation process could be employed to protect the other freedoms named in the Bill of Rights and prevent excessive use of governmental power. Several recent cases underscore that historical and Constitutional reality:

1. In Redding, CA, the Bostonian Tea Party, the North State Tea Party Alliance, and local Tea Party official SuAnn Prigmore sued the Redding Municipal Library for imposing restrictions on expressive activities on library grounds. The Tea Party groups are represented by the conservative non-profit Pacific Justice Institute. Library officials didn't appreciate the Tea Party groups' distribution of the U.S. Constitution in the library breezeway during Constitution Week last September (what an irony). The library and the City Council drafted and approved a new policy restricting the distribution of such material. On May 4, a judge agreed to the plaintiffs' request for a temporary restraining order against the library, and the next hearing will be in June.

A VICTORY BY CONSERVATIVE TRIAL LAWYERS FOR THE FIRST AMENDMENT RIGHT OF FREE SPEECH, THANKS TO A CIVIL SUIT. ANYBODY WANT TO "TORT REFORM" THAT ONE?

2. Pacific Justice also won a big victory for religious freedom in February when the Ninth Circuit Court of Appeals ruled that the city of San Leandro, California, illegally discriminated against the Faith Fellowship Foursquare Church by denying a request to use its own property for worship services. Faith Fellowship outgrew its old location and found one building large enough, a vacant industrial building in a low-traffic part of town. The city denied rezoning and refused to allow them to move in, with city officials actually saying they preferred tax-producing entities like entertainment venues to service-oriented non-profit religious institutions (I can't believe they were that stupid). PJI and the church sued, and the trial judge dismissed the suit. But the Ninth Circuit disagreed, relying on the Religious Land Use and Institutionalized Persons Act (RLUIPA).

A VICTORY BY CONSERVATIVE TRIAL LAWYERS FOR THE FIRST AMENDMENT RIGHT TO FREELY EXERCISE RELIGION, THANKS TO A CIVIL SUIT. ANYBODY WANT TO "TORT REFORM" THAT ONE?

3. In April, the Institute for Justice, another group of conservative trial lawyers, helped a California gym that mentors at-risk kids win an eminent domain lawsuit in California against National City, California. The Court struck down National City's enormous eminent domain zone; ruled that National City violated the Due Process clause of the U.S. Constitution in failing to provide important information to the gym before an important public hearing; and mandated that a private consultant's documents used to justify the eminent domain action produces are subject to disclosure. (I discussed a federal bill aimed at helping property owners defeat abusive eminent domain actions on April 11.)

A VICTORY BY CONSERVATIVE TRIAL LAWYERS FOR THE PRIVATE PROPERTY RIGHTS, THANKS TO A CIVIL SUIT. ANYBODY WANT TO "TORT REFORM" THAT ONE?

There are scores of other cases like these every year, filed by these groups and others, such as the Alliance Defense Fund, the Rutherford Institute, and many others... just as the Founders intended. The "tort reform" movement will eventually reach harm cases, through restrictions on the filing of any lawsuit, Americans don't recognize the universality of the rights protected in our Constitution and Bill of Rights.

The Cato Institute has reprinted an article co-authored by David Kopel of Cato and Rob Natelson, senior fellow in constitutional jurisprudence at the Independence Institute, asserting that "Under the Constitution, health insurance is a matter of state, not federal, jurisdiction." The co-authors write that the legal basis for asserting the constitutionality of ObamaCare rests, in large part, on "a single erroneous U.S. Supreme Court decision, U.S. v. South-Eastern Underwriters Association." Kopel and Natelson punch holes in the South-Eastern Underwriters decision, pointing to Justice Hugo Black's erroneous reference to an Alexander Hamilton quote, and propose to overturn the decision on the way to killing the individual mandate in ObamaCare.

That's great, I hate ObamaCare and have repeatedly asserted that it's unconstitutional, including in the Roll Call article on me this week. The entire law is a menace to our liberties and needs to be shredded.

But if health insurance isn't "commerce" under the Constitution's Commerce Clause, then surely health-related litigation - civil suits against health care providers - isn't "commerce" either. If you agree with Rob Natelson's position about ObamaCare, then surely it's not difficult to agree with him that H.R. 5, the big anti-health-care-lawsuit bill, is also unconstitutional. He made it that clear in his April letter to Congress and posts on two Tea Party websites, the Tenth Amendment Center and the Independence Institute (scroll down that page). In his letter, Rob Natelson wrote:

To be blunt: H.R. 5 flagrantly contravenes the limitations the Constitution places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution's Commerce Power. Yet as I shall explain, its subject-matter -- civil actions in federal and state courts -- is not within the Constitution's meaning of "Commerce." Nor can H.R. 5 be justified under the Necessary and Proper Clause as incidental to the regulation of interstate commerce. On the contrary, during the debates over ratification of the Constitution, leading Founders specifically represented that the subject-matter of H.R. 5 was outside federal enumerated powers and reserved to the states.

Crystal clear, perfectly consistent with the ObamaCare position, and Constitutionally based. House Republicans should abandon H.R. 5 just as they try to kill ObamaCare.

P.S. I'm wondering if the Cato Institute will write this....

I've posted often this year about H.R. 5, the "HEALTH Act," which would pre-empt state health care laws and civil suits against doctors, hospitals, drug and device companies, insurance companies, and nursing homes. Just look at the archives: senior Republican Congressmen, a top Constitutional scholar, state legislators, and the coordinator of the Tea Party Patriots all say that the Constitution bars Congress from enacting federal tort reform, including the most sweeping health care-related preemption bill ever.

Now the Tea Party Patriots are fighting for the "Health Care Compact" as a way for states to take control of health care policy, instead of watching ObamaCare's sweeping over-regulation. An e-mail from the TPP coordinators describe it this way:

The Health Care Compact is simply an interstate compact. Interstate compacts are essentially contracts between states, that, when approved by Congress, supersede federal law. Interstate compacts have been around since before the Constitution was written, and our Founding Fathers thought so highly of them that they included them in the Constitution (Article 1, Section 10), knowing that our states might someday need a mechanism to band together and take power back from the federal government.

There are over 200 interstate compacts in existence today, allowing states to regulate everything from selling life insurance across state lines to recognizing out-of-state drivers licenses. If an interstate compact imposes on existing federal law, the compact needs to be approved by Congress in an up-or-down vote. Congress is not allowed to amend the compact in any way; they can only vote yes or no. It is unclear at this time whether or not compacts require the President's signature; however, we fully intend to draw a line in the sand and force President Obama to publicly pick a side, just in time for the 2012 elections.

The HCC gives the member states the power to reject every, single, unconstitutional page. The HCC simply states that member states are free from federal health care regulations, if they so choose. Very basically, it allows states to receive health care funding with zero strings attached. No more costly, intrusive, and unconstitutional mandates.

Notice the difference between H.R. 5 and the HCC in the handling of health care-related civil litigation. The former takes over those lawsuits from the states having no lawsuit limits, and it imposes damage caps from the federal level down. The HCC keeps Washington from assuming that power and reserves regulation of the civil justice system for the states, with no specific mandate limiting the right to a jury trial for civil suits. While H.R. 5 preempts state law, the text of the HCC explicitly condemns preemption and stresses states' rights and the protection of individual liberty. H.R. 5 mandates a federal wage scale for attorneys who represent victims of health care negligence, while the HCC doesn't attempt to impose such an un-American idea. It's inherently pro-7th Amendment and pro-10th Amendment.

But note one special sentence in TPP's description - something that could kill the HCC this year: If an interstate compact imposes on existing federal law, the compact needs to be approved by Congress in an up-or-down vote. So if Congress enacts H.R. 5 before the HCC is approved by two or more states, the states would have to fight tooth and nail for Congress to approve the HCC over H.R. 5, and I think that's impossible politically. If the GOP leadership just moves H.R. 5 through the House alone, it will kill any backing by mainstream Republicans for the HCC.

The Tea Party Patriots and other backers of the Health Care Compact better recognize how quickly they could be pushed off the cliff by the forces of "Big Medicine" pushing for H.R. 5. They and their Congressional allies must tell House GOP leadership that H.R. 5 is inconsistent with the Constitution and the Bill of Rights.

"Roll Call," the newspaper that covers Capitol Hill, interviewed me and published an article about my work in support of the Constitutional rights of Americans. It includes a great quote by Mark Meckler, co-founder and national coordinator of the Tea Party Patriots. You can download an Acrobat file of the article here, and an excerpt follows:

Andy Cochran is a tea party-supporting, religious, anti-abortion, trial-lawyer-loving conservative Republican. Seriously. 'Trial-lawyer-loving' was no typo.

The Reagan-administration-appointee-turned-lobbyist has a long list of conservative credentials. Armed with writings from the Founding Fathers and a fervor for the Constitution, Cochran is reaching out to Hill Republicans, conservative scholars and tea party activists to try to persuade them to oppose tort reform efforts making their way through Congress.

He'll reference the Magna Carta and even the Bible when arguing for the right to sue and receive damages. 'Moses said, if you take your neighbor's property, you owe, essentially, punitive damages,' Cochran said. He started 7thamendmentadvocate.org, devoted to the Seventh Amendment, which defined the right to a jury trial for civil matters.

On issues such as the lawsuit abuse and medical liability reform bills, Cochran has tapped his Rolodex of socially conservative groups that frequently push their causes through the court system. He wants to enlist them in the fight to preserve the Seventh Amendment on the grounds that the federal government could one day infringe on their ability to sue....

Mark Meckler, co-founder and national coordinator of the Tea Party Patriots, said the tort reform issue is not 'really on the radar right now.' However, Meckler, an attorney who says he does not know Cochran and does not interact much with lobbyists, speculated that his group's membership might be sympathetic to Cochran's pitch.

'Most folks in the tea party movement would say those things should be dealt with at the state level,' Meckler said. 'It's not for the federal government to be adjusting the legal system of individual states.' (Emphasis mine.)

That works for me! Let's hope Washington is listening. Thanks to Mark Meckler for his comments and to Kate Ackley, the Roll Call reporter who conducted a fair and balanced interview.

In recent editions of the What's Up radio program, host Terry Lowry has explored the Biblical basis for the Constitutional civil justice system and for trial lawyers. 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 said on the program, "From Deuteronomy to Psalms to Isaiah to Matthew, it emphasizes justice. We know God is a god of justice." The Bible speaks early and often about the duties to avoid committing negligence, paying damages for harm to property, and even paying punitive damages.

First, there is clear guidance in the Old Testament about the need for a civil justice system (quoting from the Methvin paper):

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)

And here are some clear examples of the Lord's direction to Moses on the need for the the people to pay restitution for damages to property (using the King James version):

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)

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)

And here's my personal favorite:

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)

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. You can listen to Segment 1 of his interview and to Segment 2 here.

Terry Lowry also interviewed attorney Mary Alice McLarty, of McLarty Pope L.L.P. in Dallas, on April 25 on the subject, "Christians Are Called to Protect and Defend the Cause of the Weak and Fatherless." They discussed the Biblical phrases noted above and others, such as Psalm 82:2, How long will ye judge unjustly, and accept the persons of the wicked? Selah. Defend the poor and fatherless: do justice to the afflicted and needy. Deliver the poor and needy: rid them out of the hand of the wicked. You can listen to Mary Alice's interview here.

The Founding Fathers, being learned men of great faith, knew these phrases and the recognition they had received in British law through the centuries, beginning most clearly in Article 39 of the Magna Carta, signed in 1215. The Founders reflected the teachings of their faith in human law through the creation of the federal judiciary and the Bill of Rights, including the 7th Amendment.

The "What's Up" radio program with Terry Lowry is aired on 12 stations in 10 states, thanks in part to sponsorship by the American Association for Justice, the largest association of trial lawyers in the world. The list of stations is at the end of this post.