In my opinion, the single biggest problem with the Republican Party today is that its leaders claim to represent the cause of limited government, or "constitutional conservatism," but either don't know what that really means or hypocritically ignore its meaning to advance an "un-conservative" political agenda. The Obamacare decision by the Supreme Court revealed an incredible disconnect between the claims of top Beltway Republicans and their stands on the specific use of federal power to limit states' and personal rights. House Republican leaders such as Speaker Boehner and Reps. Hensarling and Price toss out "medmal limits" as a response to Obamacare, mindless of the constitutional inconsistency.
And where is Mitt Romney on this issue? Well, he's been confused for a long time and remains so. It's no surprise that Tea Partiers had such a tough time accepting his winning the Republican Presidential nomination, because his record is anything but "constitutionally conservative."
As Governor, Mitt Romney pushed through tort reform measures with caps on damages, and he's continued to push tort reform as a panacea for rising health care costs and poor economic growth. The attached Word file documents the numerous instances in which he called for state and federal medmal limits prior to starting his current campaign.
Romney is full of contradictions in his own recent statements on federal interference in health care. I wrote on June 13 that in a speech billed as a "major health care speech," Romney pledged to uphold and protect the 10th Amendment in all of his health care policy decisions. Moreover, he didn't call for federal medmal limits.
However, on the 'Health Care section of his campaign website he proposes to "Cap non-economic damages in medical malpractice lawsuits." Never mind that it follows a section proposing to "Restore State Leadership and Flexibility."
That's not all. In the 'Regulation' section, he proposes to "Reform legal liability system to prevent spurious litigation."
So it looks pretty clear that Mitt Romney is for federal tort reform, with little regard for states' rights.
If Romney is going to "believe in the 10th Amendment," as he says, maybe he needs a short refresher course in its meaning and history. The Founding Fathers clearly intended for Americans to take their civil suits before a local jury of their peers, and they never differentiated between economic claims (i.e., personal injury) and non-economic claims (i.e., free speech and property rights). They did so from long before independence from Britain through the great debates over the ratification of the Constitution and then the Bill of Rights. In 1765, John Adams condemned the British for abrogating the right to a civil jury trial through a provision in the Stamp Act. Constitutional scholar Rob Natelson has documented the texts in the pre-Revolutionary pamphlets and pre-Constitution ratification debates indicating the dedication of the Founders to preserving state sovereignty over civil law, including the right to trials by jury. And in her award-winning book, Ratification: The People Debate the Constitution, 1787-1788, historian Pauline Maier documents the ratification debates over the right to a civil jury trial in Pennsylvania, Connecticut and Virginia. The Founders added the 10th Amendment as a rule of construction to steer future generations away from imposing on state sovereignty and personal liberty.
There can be no debate over the intent of the Founders. Summarizing them, Rob Natelson wrote, "The effort to impose federal control over state courts and state civil justice violates one of the core principles of our federal system: That most judicial matters are local. Keeping courts and procedures local is, in fact, a crucial protection for individual liberty."
Romney and Beltway Republicans either don't know of these writings or don't care. Instead, many Republicans have taken the position that the Constitution itself, through the Commerce Clause and the Necessary & Proper Clause, enables Congress to override state tort law and direct state courtrooms how to hear claims over medical malpractice.
Not only did the Obamacare decision not support that theory, I assert (without rebuttal thus far) that Justice Roberts' opinion makes it much more likely that this Supreme Court would rule against federal tort reform laws. Current constitutional scholars, including the leading anti-Obamacare legal theorists such as Randy Barnett, Virginia Attorney General Ken Cuccinelli, Ilya Somin and Rob Natelson, have written numerous times that federal tort reform is not a valid exercise of the Commerce and the Necessary & Proper Clauses.
Romney has never proposed a coherent approach to constitutional rights and the limits on federal power. He deserves the skepticism of the real conservatives in his party and of all 7th and 10th Amendment advocates.