"Whose Idea Was It to Allow All These Lawsuits?"


So asked a friend of mine while we were talking about the range of lawsuits filed by parties ranging from religious institutions, protesting infringements on their liberty, to individual Americans hurt by medical negligence. Good question, I said - and here are the persons who set up all those lawsuits:

(1) The Founding Fathers of the United States. One of the primary themes of my work is that the Founders were crystal-clear, from long before the Revolutionary War through the ratification of the Bill of Rights, that Americans had a God-given right to present their claims before a jury of neighbors. They reflected their beliefs in the Declaration of Independence, the Constitution, and the 7th Amendment. Here are just a few representative samples:

"The civil jury trial is preferable to any other and ought to be held sacred." --Virginia Declaration of Rights, 1776

"In civil suits the parties have a right to trial by jury and this method of procedure shall be held sacred." -- Massachusetts Constitution, 1780

"Trial by jury in civil causes,... trial by jury in criminal causes, [and] the benefits of the writ of habeas corpus... all stand on the same footing; they are the common rights of Americans." -- Richard Henry Lee

"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

"In suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people." -- Virginia Bill of Rights, 1788

But the Founders weren't original thinkers; they stood on the shoulders of their philosophical ancestors over centuries of human experience.

(2) The British ancestors of the Founding Fathers. On June 15, 1215, British farmers forced King John into the sealing of the Magna Carta at Runnymede in England. The document required King John to proclaim certain individual liberties, and accept that his will was not arbitrary, for example by explicitly accepting that no "freeman" (in the sense of non-serf) could be punished except through the law of the land. It's certainly the charter for modern democracy, the basis for eight centuries of British and American law (copied around the world), and the foundation for the U.S. Constitution and the Bill of Rights. The colonies in Virginia, Massachusetts, and Maryland especially sought to reflect various points of the Magna Carta in their early charters and laws. Article 39 of the Magna Carta can be translated as, No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. It is this article that establishes and protects the right to a trial by local jury in criminal and civil cases, to protect all other individual liberties from the power of centralized government. The Founding Fathers studied the Magna Carta and knew the many instances in which the British had deprived them of their rights. John Adams referred to it as "that fundamental law" when opposing the Stamp Act of 1765, and the deprivation of jury trials was among the grievances listed in the Declaration of Independence. George Mason, who refused to sign the Constitution because it didn't explicitly protect individual rights and the prerogatives of states, drew upon the Magna Carta for his writings, which eventually led to the enactment of the Bill of Rights.

(3) Last but not least, G-O-D. Yes, God Almighty decreed that humans, his creation, have the right to hold each other accountable at law. 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 wrote, the Bible speaks early and often about the duties to avoid committing negligence, paying damages for harm to property, and even paying punitive damages. For instance:

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)

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)

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)

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)

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.

So the next time you hear someone crack on civil suits and trial lawyers, remind them that there are three pretty good sources for those suits, and we should pay attention.

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This page contains a single entry by Andrew Cochran published on December 22, 2012 7:30 AM.

Conservative Health Care Plans Protect Constitutional Rights & Reflect Political Reality was the previous entry in this blog.

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