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The Constitution & Civil Justice subcommittee of the House Judiciary Committee held a hearing today on a proposed Constitutional amendment to give victims of crime additional rights during and after the prosecution of the criminal. Some states allow the victims to participate in the sentencing or plea settlement process or in other ways, and some do not in any part of criminal proceedings. The bipartisan "Victims' Rights Amendment," or VRA, was first proposed by President Reagan and has been championed by Members of both parties in Congress and Presidents of both parties.

One of the provisions in the VRA would entitle victims of crime "to restitution." That's great - I'm all for it - with no argument at all. But Committee Members should remember that the Founding Fathers already recognized that right by fashioning a civil justice system based in the God-given right to have civil claims heard before a local jury. The 7th Amendment was the only amendment in the Bill of Rights unanimously adopted by all of the original states. It reflects the centuries-old recognition of the right to civil jury trials in British law, back to the Magna Carta in 1215, and the Biblical recognition of that right in various texts in the Old Testament. The Founders described that right as "sacred" and "a valuable safeguard to liberty."

Many victims of crime have, over the decades, exercised that right to pursue the assets of the criminal after the prosecution is completed. The successful civil suit against O.J. Simpson by the family of Ronald Goldman, who was killed in the attack, comes to mind.

And American victims of terrorism have had the specific right, added to federal law in the 1990s, to pursue restitution against state sponsors of terrorism. I've assisted victims of the 9-11 attacks, Qaddafi s reign of terror, and Iran-sponsored terrorism to obtain a measure of justice through legislation and administrative action. Last year, Congress enacted a special section in an Iran sanctions act to enable several groups of American victims to enforce a judgment against Iran in federal court. Recently, the first judicial ruling after that bill's enactment was favorable to the victims, a promising development.

Members of Congress should remember that Founding Fathers didn't consider the right to restitution to be exclusive to victims of crime or of any other specific act. They created ONE civil justice system, grounded in the unalienable right to a civil jury trial, for civil claims of all types and all origins. Victims of medical malpractice and product liability have an equal right in the eyes of God to seek restitution as victims of crime and international terrorism, and Congress shouldn't seek to abridge those rights through "tort reform" or artificial caps on civil damages. Congress should spend its energy upholding 7th Amendment rights for all Americans in all circumstances.

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.

On this anniversary of the terrorist attacks on September 11, 2001, I want to highlight the God-given and constitutionally protected rights of American terrorism victims to hold the terrorists and their sponsors accountable in court. Our Founding Fathers designed a civil justice system to enable all Americans to hold wrongdoers accountable for damages. The Founders built this system upon a centuries-old Judeo-Christian ethic, established by Moses among the Israelites and ensconced in Western jurisprudence in the Magna Carta in Britain in 1215.

"Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?" When visitors to Washington, D.C. walk into the beautiful Jefferson Memorial, they look up and read a number of quotes from Thomas Jefferson, including that one. Our Founders had no difficulty identifying Almighty G-O-D as the source of all human rights. In our Founding Documents, God the Creator is explicitly recognized time and again. Jefferson, Adams, Madison, and Washington couldn't comprehend an America that deletes that conviction from our political documents.

It's been my honor to assist American terrorism victims for over seven years in the halls of Congress and the Executive Branch, lobbying for legislation and administrative action to enable their constitutional rights and achieve some measure of justice. Victims of the 9/11 attacks, Muammar Qaddafi's reign of terror, deadly bombings by Hamas in Israel, and Iranian terrorism attacks have benefitted from a bipartisan consensus to help Americans take the terrorists' and their sponsors' money through civil suits. Section 502 of the new Iran sanctions law, signed by President Obama last month, enables the taking of the most money from a state sponsor of terrorism in 30 years, for the benefit of American victims of Iran's terrorism.

I discussed the God-given rights of terrorism victims to hold terrorists accountable, and the need to protect the 7th Amendment right to a jury trial for civil suits in health care lawsuits, on today's edition of the What's Up radio program, hosted by Terry Lowry, broadcast on Sirius Channel 131 and on 12 radio stations. You can download and listen to that show in four segments:

Segment One - Where Do My Rights Come From?
Segment Two - Where Were You On September 11, 2001?
Segment Three and Segment Four - Obamacare, federal caps on medmal lawsuits, and Prof. Randy Barnett's opposition to both.

Last week, I traveled to Nashville, TN, to try to advise Tennessee state legislators to stick to 200 years of state jurisprudence and the American rule in civil lawsuits, and not institute a "Loser Pays" system in courtrooms. As I've explained here before, "Loser Pays" means that middle- and lower-income individuals, and small businesses with low long-term capital reserves, would have to risk their meager savings when filing a civil suit. One attorney there analogized such bills to the New England Patriots' being forced to pay the New York Giants' expenses for the Super Bowl after losing the game!

I'm also concerned that social conservative litigators, such as the ACLJ, Becket Fund for Religious Liberty, Liberty Counsel, Thomas More Law Center and the Alliance Defense Fund, could be severely impacted by state "Loser Pays" statutes. One proposed bill in Tennessee would institute a rule under which the side that loses three straight rulings in a given case automatically pays the other sides' expenses. Does that mean, for instance, that the Alliance Defense Fund has to pay the attorneys' fees if the Tennessee state judiciary rules against it all the way through the state Supreme Court in a religious liberty case? I know that the senator proposing the bill hasn't contacted any of the groups named above. That bill could be extremely costly, and many social conservative litigators could face severe disincentives to filing a suit to protect our basic freedoms.

"Loser Pays" is a big trend sweeping through statehouses across America. Attorney Brett Emison wrote recently of his effort to persuade the Missouri state legislature to not institute "Loser Pays" there. I urge my readers to read his post about the dangers of "Loser Pays" and the long history of the American rule. The Founders had good reasons to insist otherwise.

I discuss this issue on today's What's Up radio program, hosted by Terry Lowry and broadcast nationally on Sirius Channel 131 and also on 12 radio stations from Texas to Pennsylvania. You can download and listen to Segment 1 here and to Segment 2 here.

Tomorrow I will be in Nashville, TN, to promote the universal right to civil jury trials, standing alongside the Tennessee Association for Justice and Susan Saladoff, producer of the documentary movie, Hot Coffee, which tells the truth about the famous McDonald's "hot coffee" case. As I mentioned in an interview with the Tennessee Public News Service, the "tort reform" side has mythologized that case, completely distorting the facts. Judson Phillips, founder of Tea Party Nation, rebutted those myths with actual facts in a December WorldNetDaily piece on the unconsitutionality of federal tort reform. I'm very pleased that Judson will join us tomorrow in Nashville.

It's critical that Americans learn of the importance that the Founding Fathers gave to the right to civil jury trials for all causes and in all courts, state and federal. Historian Pauline Maier's book, Ratification: The People Debate the Constitution, 1787-1788, has drawn rave reviews from a number of conservative legal scholars. Randy Barnett called it "marvelous" and described it as "the first comprehensive narrative of the ratification of the U.S Constitution, from the Philadelphia convention, through each of the states (in order of deliberation) and the drafting and adoption of the first 10 amendments." So I downloaded it on Kindle and searched for references to the right to a civil jury trial. And the book refers to a number of instances in which the states discussed and debated the need to protect that right in explicitly in the Bill of Rights after the delegates to the Constitutional Convention rejected motions to do so in the Constitution.

The benefit of the right to civil jury trials and the need to protect that right was a part of numerous state ratification conventions. For instance, the delegates to the Pennsylvania ratification delegation entered into a heated argument over whether Sweden had utilized, and then eliminated, civil jury trials and the impact on civil justice, which was resolved only when a commentary by the English jurist William Blackstone proved that civil jury trials had been commonplace thoughout Europe. The book documents similar debates in Connecticut and Virginia, the latter resolved by reference to the same Blackstone commentary that determined the debate in Pennsylvania. No less a patriot than Patrick Henry argued that the lack of explicit protection of jury trials for civil and criminal cases would lead to the loss of all rights. It was these debates that eventually led James Madison to propose the inclusion of what became the Seventh Amendment in the package of constitutional amendments proposed during the first Congress. And as I've documented in posts here, most state constitutions explicitly protect the right to civil jury trials.

I hope tomorrow's events in Nashville will be a springboard to a nationwide discussion on the meaning of the Seventh Amendment and the need to protect the God-given right to civil jury trials in state and federal courts. It's clear from the documentation of the state ratification conventions that the Founders did not intend to see this precious right limited or eliminated in state courts.

The Seventh Amendment provides that " [i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved... Accordingly, we must conclude that the Seventh Amendment provides a right to a jury trial where the copyright owner elects to recover statutory damages... The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. It has long been recognized that "by the law the jury are judges of the damages.'' Lord Townshend v. Hughes, 2 Mod. 150, 151, 86 Eng. Rep. 994, 994-995 (C.P. 1677). Thus in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935), the Court stated that "the common law rule as it existed at the time of the adoption of the Constitution'' was that "in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.''

So wrote Justice Clarence Thomas in his opinion for a unanimous Supreme Court, when it ruled in a 1998 copyright infringement case that the Seventh Amendment requires the right to a jury trial where the copyright owner elects to recover statutory damages. In Feltner v. Columbia Pictures Television, Inc., the Court overruled the Ninth Circuit Court of Appeals, which had affirmed a district court's ruling denying Feltner's motion for a jury trial. Justice Thomas' opinion included a discussion of the applicability of the Seventh Amendment to copyright infringement cases and, in effect, a terrific defense of the right to a civil jury trial and the role of local juries. Justice Thomas noted that even before adoption of the Constitution, in England and in the American colonies, "copyright suits for monetary damages were tried in courts of law, and thus before juries." And he wrote that the Copyright Act of 1790 didn't change that practice.

Ironically, the attorney asserting Mr. Feltner's Seventh Amendment rights was John Roberts, now the Chief Justice of the Supreme Court, and during oral argument before the Court, he eloquently noted the historical role and significance of civil jury rights enumerated under the Seventh Amendment:

In light of clear historical practice on both sides of the Atlantic prior to 1971, Feltner had a right under the Seventh Amendment to have a jury make that finding and others on which the award was based and determine the amount of damages to be imposed within the statutory limits.

The idea that... when Congress fixes the amount of the penalty it can therefore delegate that task to judges ignores the whole purpose of the Seventh Amendment.

The Seventh Amendment is to protect against judicial bias and corruption and overreaching and, while that's not implicated when Congress fixes the amount because Congress is doing that, the judge is just applying it, when you give that task to the judge the whole reason for having the Seventh Amendment comes into play...

As someone who has criticized the Roberts Court for decisions denying civil jury trials in a number of preemption and arbitration cases, I was surprised to learn of this defense of the Seventh Amendment by Justice Thomas. My thanks to Bob Peck of the Center for Constitutional Litigation in Washington for pointing it out. Now if only the Roberts Court would only take a realistic view of the practical and harmful impacts of federal preemption and forced arbitration clauses on our right to a civil jury trial.

In their zeal to adopt a federal malpractice reform bill to dictate procedures to state courts, many Republicans in Congress are doing precisely what they rightly accuse Democrats of doing: blithely disregarding the Constitution's clear limits on federal power.

Their proposals, once encapsulated in H.R. 5 and then slipped into the Senate Republican "jobs bill," not only violate the true meaning of the Constitution, but also likely run afoul of such modern Supreme Court cases as New York v. United States and Printz v. United States, which voided efforts to impose unfunded federal mandates on state officials. The same Virginia attorney general who brought the first suit against Obamacare has threatened to challenge this measure in court as well.

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.

As I show in my new paper, "The Roots of American Judicial Federalism," one of the chief causes of the American Revolution was the British effort to undercut local courts by centralizing the administration of justice. As I also explain, after the Revolution Americans deliberately enshrined the local-control principle in our Constitution.

In other words, medical malpractice reform, like most other aspects of civil justice, is a matter for state, not federal, law. (Emphasis added.)

So wrote Rob Natelson, Senior Fellow in Constitutional Studies at the Independence Institute in Colorado, in a post titled, "Congress, Butt Out! The Constitution Reserves Malpractice Reform for the States" to introduce his newest research study, The Roots of American Judicial Federalism. Rob Natelson is one of the most respected constitutional scholars in America; was Montana's best known political activist -- leading, among other campaigns, the most successful petition-referendum drive in Montana history -- and in June 2000, was the runner-up among five candidates in the party primaries for Governor of Montana.

The Roots of American Judicial Federalism is not Rob Natelson's first foray into the federal medical malpractice debate. In April, he became the first of a long line of conservative and Tea Party-side activists and scholars who oppose federal medmal laws on federalism grounds. In his letter to Congress, he spelled out the constitutionally based objections to H.R. 5, the primary bill desired by the medical groups to limit all health care lawsuits, including those filed for medical malpractice. "H.R. 5 flagrantly contravenes the limitations the Constitution places 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."

In the opening page of Roots, Natelson explains that the Founding Fathers were committed to reserving tort law for the states, even years before the drafting of the Constitution.

In drafting the Constitution, the Framers provided for additional federal judicial authority. Like the post-1768 pre-Revolutionary pamphleteers, however, they rejected proposals for a central government with power over all activities with inter-jurisdictional impact. Instead, they limited federal authority to items specifically enumerated. Reserved to the states would be nearly all the authority they had exercised previously, including power over state court procedures and over existing areas of substantive jurisdiction. With a few exceptions, therefore, the states were left in exclusive possession of the law of torts, contracts, inheritance, property, and criminal law.

When the Constitution became public in September, 1787, opponents argued that the Constitution could be construed to permit Congress or the federal courts to exceed prescribed limits. They contended that the new government might interfere with criminal and civil justice within the states. The Constitution, they said, should be rewritten to prevent manipulation of its terms by legal "sophistry."

To quiet such apprehensions, the Constitution's proponents explained to the ratifying public that the Constitution, if adopted, would grant only restricted authority to the new government. The Constitution's proponents listed for the ratifying public numerous areas in which the federal government would have no power and the states would enjoy exclusive power. Among the areas listed were several pertaining to state judicial systems.

The remainder of the study reveals the detailed writings of the Founding Fathers in support of judicial federalism. Professor Natelson quotes them time and again, including in letters and pamphlets that many Americans have probably never read before:

Like earlier authors, the writers of the 1774 pamphlets emphasized that judicial matters should be administered locally. In his Novanglus, (John) Adams pointed out that the dispute between colonists and the British government was not limited to taxes:

"Is the threepence upon tea our only grievance? Are we not in this province deprived of the privilege of paying our governors, judges, &c.? Are not trials by jury taken from us? Are we not sent to England for trial? Is not a military government put over us? Is not our constitution demolished to the foundation?"

Alexander Hamilton, in A Full Vindication of the Measures of Congress, agreed:

"Give me the right to be tried by a jury of my own neighbors, and to be taxed by my own representatives only. What will become of the law and courts of justice without this? The shadow may remain, but the substance will be gone. I would die to preserve the law upon a solid foundation; but take away liberty, and the foundation is destroyed."

Professor Natelson discusses the assurances that delegates to the Constitutional Convention gave to the public that the right to a civil jury trial would not be abridged:

At the New york convention, Hamilton underscored exclusive state jurisprudence over internal state administration, arguing that state powers are "civil and domestic--to support the legislative establishment, and to provide for the administration of the laws." He added that:

"Were the laws of the Union to new-model [reform] the internal police of any state; were they to alter, or abrogate at a blow, the whole of its civil and criminal institutions; were they to penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals,--there might be more force in the objection; and the same Constitution, which was happily calculated for one state, might sacrifice the welfare of another."

Chancellor Robert R. Livingston assured the convention that state power over traditional areas of judicial power was exclusive:

"They tell us that the state governments will be destroyed, because they will have no powers left them. This is new. Is the power over property nothing? Is the power over life and death no power? . . .In one word, can [Congress] make a single law for the individual, exclusive purpose of any one state?"

Natelson concludes by discussing the fight to recognize the right to a civil jury trial and the states' right to run their own civil justice systems through a Bill of Rights.

Federalists had to go beyond representing the meaning of disputed provisions. They also had to promise that they would support a bill of rights once the Constitution was ratified. Five of the 11 ratifying state ratifying conventions had accompanied their approval with suggested amendments. The two states that thus far had refused to ratify, North Carolina and Rhode Island, determined to stay out of the union until a bill of rights was proposed.

Among the restrictive amendments were some restraining the federal judiciary. Thus, the Fourth Amendment regulated judicially-issued warrants, the Fifth barred double jeopardy, the Seventh prescribed jury trial in civil cases, and so on. The Ninth and Tenth Amendments were the declaratory amendments. They highlighted the limited scope of federal powers, including federal powers over judicial matters.

Although the Ninth Amendment is widely misunderstood today, its principal role was as a protection for federalism, including judicial federalism. It affirmed that Congress was no more able to impair the independence of the state judiciaries after adoption of the Bill of Rights than had been true before adoption.

The Tenth Amendment, based on the most popular proposal from the states, reinforced that whatever was not given was reserved. It may have been targeted specifically against claims raised during the Confederation period that, despite the Articles' limits on congressional power, Congress enjoyed additional "inherent" authority merely by virtue of being a sovereign.

In other words, both the Ninth and Tenth Amendments rendered explicit the Constitution's implicit restraints on Congress and the federal judiciary, as explained by Federalist essayists during the ratification debates. Both amendments protected the exclusive sphere of the states, including the integrity of the state courts.

Rob Natelson's study is a enormously revealing and powerful paper that will assist real constitutional conservatives in their fight against the federal takeover of state courts. The tort reform movement finds itself without intellectual ammo, and cannot cite any writing from the Founding Fathers in support of their positions (I've offered free dinner on that). I will post quotes from this outstanding paper throughout the coming weeks.

A second leader of a national and influential Tea Party group has joined the chorus of conservatives against any federal tort reform law. Judson Phillips, founder of Tea Party Nation, posted on the website yesterday that the jury system is part of the free market, and to interfere with the jury system violates the 7th Amendment to the Constitution. The website requires registration to read the post, but Judson generously allowed me to post a segment of his article.

"The free market is a wonderful system. It produces amazing efficiencies and amazing wealth. The free market system has delivered more prosperity to more people than any other system. There is another beauty to the free market system that many people do not think about. The free market system punishes bad behavior. If I open a business and decide to sell something that is a really bad product, people do not come to my business. I have the incentive to produce a really good product because that way people will want to come to my business.

The civil jury system is a part of the free market. Our founding fathers thought enough of it to make it the 7 th Amendment to the Constitution. Jury awards are a part of the free market. They do not exist in a vacuum. They not only compensate someone for an injury but like so many other parts of the free market, they act to deter bad behavior.

If I am injured by a bad doctor or suffer some other type of injury or loss, I do not want the Federal Government telling me what my pain is worth. I want twelve citizens deciding justice for me.

The right to a jury trial has a long and storied history in America and even further back in Britain.

Much as the Federal Government is overstepping its bounds by ordering Americans to buy health insurance, the government is also overstepping its bounds by telling citizens and states how much they can award in law suites and also telling lawyers how much they can be paid. (sic)

The free market is an amazing thing. It needs almost no intervention to achieve the right result, and the civil jury trial is an important part of the free market.

Take a moment to tell your Senators and Congressmen we do not need the federal government telling states what to do and trampling on another one of our constitutional rights."

This spring, Tea Party Patriots co-founder and national coordinator Mark Meckler voiced his opposition to federal tort reform on the grounds that it violates states' rights. "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."

It's great to see these two leaders of the popular movement to restore the primacy of our Constitutional rights forcefully reject the attempt to override state and individual rights. We need to bring these statements to the attention of every Member of Congress, especially the Republicans under pressure to enact federal tort reform.

Social conservative leader Ken Connor was interviewed on Tuesday on the What's Up radio program, hosted by Terry Lowry and broadcast nationally thanks to co-sponsorship by the American Association of Justice. Ken is not only a colleague in advocating the right to a jury trial under the 7th Amendment, but he introduced me to Terry Lowry and proposed the expansion of Terry's program to a nationwide basis, for which my readers can be very grateful. Ken was the President of the Family Research Council, is a longtime pro-life activist and leader, and founded and chairs the Center for a Just Society. He's also a veteran trial lawyer with an outstanding record of representation for his many clients.

Ken discussed the basic safeguards in criminal cases that our Founding Fathers recognized in the Constitution and Bill of Rights, how those safeguards were reflected in the Casey Anthony trial, and how the verdict validates the Founders' vision. He reminded listeners that the Founders thought of the right to a jury trial for criminal cases and civil cases together. He talked about many of the points I've written about here: the Biblical basis for the jury system; the 1000+-year-old use of the jury system around the world; the Founders' inclusion of the right to a jury trial in our founding documents; and their insistence on protection in the Bill of Rights as a "cherished right."

He then turned towards the debate on "tort reform" in civil cases, noting that it is critical that an accused in either a criminal or civil case needs to have the opportunity to present his case before a local jury of peers. Terry Lowry and Ken reminded listeners of the importance of the Seventh Amendment right to a civil jury trial system to protect our First Amendment right to the free exercise of religion, the Second Amendment right to bear arms, and so on. Ken criticized those members of his political party, the Republican Party, who seek to give corporations a free pass for tortious actions by violating the Constitutional rights of all Americans.

Ken Connor is a true "Constitutional conservative" who cherishes EVERY amendment in the Bill of Rights. You can hear Part 1 of the interview here and Part 2 of the interview here.

Yes, all three have one thing in common. Let's start with the latter two. At first glance, the average American might wonder - one's a criminal case over the murder of a child, the other a civil suit over spilled coffee; in the former, the defendant, Casey Anthony, was found not guilty by the jury of the most heinous of the six charges against her, while defendant McDonald's was found liable by the jury, which assessed damages in the millions of dollars. But the common thread is this: The "OUTRAGE!" expressed by average Americans to the decisions of the jury in each case sadly reflects, in large part, a lack of respect for and/or knowledge of the jury system, a jury system built into and protected by the Bill of Rights and beloved by our Founding Fathers. Tea Party Nation founder Judson Phillips, an attorney and expert on the Constitutionally protected jury system, said it best and simply this morning when commenting on the Casey Anthony verdict: "Trial by jury may be an imperfect system, but it is better than all of the alternatives." Amen to that! Hopefully more Americans will come to understand and appreciate the wisdom of the jury system.

Although Mr. Phillips commented solely on the use of the jury system in criminal cases, we know that the Founding Fathers didn't consider the right to a jury trial in civil cases to be subordinate to the right in criminal cases. My work here is all about educating readers on that critical point, especially given my opinion that the 7th Amendment right to a civil jury trial is the most unknown and endangered of any right protected by the Bill of Rights.

Which brings me back to John Adams. No Founding Father embodies the respect reserved for jury trials in civil AND criminal cases than John Adams. After all, it was John Adams who stepped up to represent the British soldiers who participated in the Boston Massacre in order to persuade a jury of Bostonians - ANGRY Bostonians who HATED the British - that the soldiers were not guilty of murder. You can read his famous closing argument on the website dedicated to the Boston Massacre. Near the end, note those oft-quoted words of Adams, "Facts are stubborn things," and finishing with perhaps the greatest tribute a trial attorney can pay to a jury: "To your candour and justice I submit the prisoners and their cause." And the jury acquitted the British captain and six of his soldiers, subjecting Adams to the "OUTRAGE!" of his fellow citizens for his persuasive abilities.

And we know that Adams cherished the right to a civil jury trial too. I wrote last August of his published letters defending the unalienable rights of Americans, one of which included 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!"

John Adams walked the walk, and Americans like Judson Phillips do so today. Instead of quickly condemning juries who adjudge accused murderers and unusual civil suits, we should look to the wisdom of the Founding Fathers, take a deep breath, and thank the Founders and God Almighty for the jury system for criminal and civil cases.

Today is a special day in the history of democracy and jurisprudence, the 796th anniversary of the sealing of the Magna Carta by King John at Runnymede in England on June 15, 1215. 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. The Wikipedia entry describes it as "the first document forced onto an English King by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their privileges." Constitutional scholar Rob Natelson of the Independence Institute was invited to write the entry on the Magna Carta for the limited-edition Encyclopedia of the U.S. Supreme Court. He told me that he considers the Magna Carta as "Probably the greatest Anglo-American legal document of all." 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. In 1957, the American Bar Association acknowledged the debt that American law and constitutionalism owed to Magna Carta by erecting a monument at Runnymede.

British jurist Sir William Blackstone organized the 1215 version into numbered articles. 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 right. 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 it for his writings, which eventually led to the enactment of the Bill of Rights.

All those who live liberty and cherish individual rights should raise a toast and a prayer today to those good people of England who stood their ground against King John's army and established the basis for self-government.

On May 9, I posted about the recent victories through civil litigation, by social conservatives, to protect free speech, religious freedom, & property rights. Today brings another example of such a victory, this time by the Alliance Defense Fund, the premier nonprofit litigation group in America for social conservatives. They forced a school board in New York to cease discriminatory tactics against a Christian youth club. From the ADF press release:

At the beginning of her freshman 2009-2010 school year at Half Hollow Hills High School East, the student co-leader of the Ichthus Club was told that her extracurricular student group had been cancelled. She was given no advance notification. Following the decision, more than 90 students signed a petition in favor of allowing the club to continue meeting, but school officials still did not immediately reinstate the club... Public school officials claimed that unspecified budget cuts and a lack of student popularity spurred their decision to cancel the club, even though the club had more than 55 student attendees in 2009 and approximately 60 other student clubs, including the Gay-Straight Alliance and Amnesty International, were allowed to continue.

Alliance Defense Fund attorneys filed suit against the school district in February 2010. Today, ADF announced a settlement and voluntarily dismissed the suit, after "school officials agreed to reinstate the club, change district policy, and revoke unconstitutional guidelines for club formation and official recognition" (quoting the press release).

This is just another example of the weekly victories that conservatives achieve by engaging in civil litigation, just as the Founding Fathers designed it in the Constitution and Bill of Rights. For mainstream conservatives to turn around and attack product liability and medical malpractice lawsuits is both unprincipled and unwise. It denigrates and trivializes the original intent of the Founders, backed by centuries of American and British law, that "We the People" have the unalienable right to protect our rights and have our claims heard before a local jury. Such attacks also ignore the Biblical basis for civil suits and trial lawyers, including the clear direction by Moses in Exodus 22:9 that one who harms another's property shall pay double the value of the lost property. It's unwise to believe that the tort reform movement can't reach lawsuits over lost rights; there are already plenty of proposals in Congress which would, if enacted, make it more difficult for social conservatives to bring lawsuits over their causes. I just hope they see that and fight such proposals vigorously.

Moses, the drafters of the Magna Carta, and the Founding Fathers didn't differentiate between civil suits over lost rights, lost property, or lost limbs, and neither should we.

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."

"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.

On Tuesday afternoon, the U.S. House Judiciary Subcommittee on the Constitution will hold a hearing on a bill introduced last week, H.R. 1433, titled The Private Property Rights Protection Act of 2011. Co-sponsored by a bipartisan group of Representatives - yes, including many Republicans - the bill is aimed at stopping municipalities from condemning private property for private land development. Among the witnesses will be Ms. Lori Ann Vendetti, a homeowner in Long Beach, New Jersey, one of a group of homeowners who successfully fought the city's efforts to take their homes and allow developers to make millions building upscale condos.

The hearing and bill should be of great interest to anybody who promotes and advocates Americans' right to utilize the civil litigation process and the rights protected by the 7th Amendment to a jury trial for civil suits. Section 4 of the bill creates a private right of action to fight local eminent domain actions, as follows:

SEC. 4. Private right of action.

(a) Cause of Action.--Any (1) owner of private property whose property is subject to eminent domain who suffers injury as a result of a violation of any provision of this Act with respect to that property, or (2) any tenant of property that is subject to eminent domain who suffers injury as a result of a violation of any provision of this Act with respect to that property, may bring an action to enforce any provision of this Act in the appropriate Federal or State court. A State shall not be immune under the 11th Amendment to the Constitution of the United States from any such action in a Federal or State court of competent jurisdiction. In such action, the defendant has the burden to show by clear and convincing evidence that the taking is not for economic development. Any such property owner or tenant may also seek an appropriate relief through a preliminary injunction or a temporary restraining order.

(b) Limitation on Bringing Action.--An action brought by a property owner or tenant under this Act may be brought if the property is used for economic development following the conclusion of any condemnation proceedings condemning the property of such property owner or tenant, but shall not be brought later than seven years following the conclusion of any such proceedings.

© Attorneys' Fee and Other Costs.--In any action or proceeding under this Act, the court shall allow a prevailing plaintiff a reasonable attorneys' fee as part of the costs, and include expert fees as part of the attorneys' fee.

This is precisely one of the scenarios that the Founders designed when drafting the Bill of Rights - the individual fighting in court to protect his property rights against the power of the sovereign. On these pages, I've been warning those conservative groups which back "tort reform" that civil suits and trial lawyers are the expression of our unalienable right to a civil jury trial, that the civil litigation process has its roots in centuries of American and British law back to the Magna Carta in 1215, and that there are numerous conservative causes for which trial lawyers file civil suits every day. Last September, I wrote Seven Reasons Why Protecting 7th Amendment Should Be Republican & Tea Party Priority, and Reason No. 3 was Civil Suits Protect Religious Liberty, Gun Rights, and Property Rights, and I specifically mentioned those lawsuits filed against unfair eminent domain actions. But I haven't seen a lot of acceptance by many mainstream "conservative" groups of this piece of basic American philosophy and history. Instead, much of the energy this year in Congress is being directed at "tort reforming" our unalienable rights away when any health care-related lawsuits, through attempting to enact H.R. 5, which I've discussed often on this site.

It's fascinating that many of the Republican co-sponsors of H.R. 1433 are also co-sponsors of H.R. 5. The two bills couldn't be more contradictory in intent, spirit, and basis in American Constitutional law. It should make the hearing interesting to watch, which you can do from the committee's website, linked above.

It has been said, that it is necessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people's liberty. (Emphasis mine.)

James Madison, Speech to Congress, June 8, 1789

And so it was that James Madison, architect of the Constitution, rose on the floor in the first U.S. Congress to propose what he also called, "the great rights," including trial by jury for criminal and civil cases, to protect individual liberty from the power of the new national government and the states. He proposed up to 20 amendments to the Constitution for consideration, of which ten ultimately were approved by the states. He proposed the right to a jury trial for civil and criminal cases together in the same amendment, and stated his proposal on civil jury trials using text already adopted in state constitutions:

In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate. More on that sentence below.

This speech is so loaded, so full of the doctrines underlying limited government, that I could have chosen other passages to emphasize. For instance, it's in this speech that Madison said something I quote often in meetings and panels, Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. (Emphasis mine.)

Other pertinent quotes include the following:

(Referring to Great Britain) In the declaration of rights which that country has established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which, the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

OR

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper.

So why, after winning the long fight to ratify a new Constitution, did Madison commit so quickly to amending it? He states the reason up front and reiterates it later:

It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired, of such a nature as will not injure the constitution, and they can be engrafted so as to give satisfaction to the doubting part of our fellow citizens; the friends of the federal government will evince that spirit of deference and concession for which they have hitherto been distinguished... It has been a fortunate thing that the objection to the government has been made on the ground I stated; because it will be practicable on that ground to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the government by those who promoted its adoption.

Madison knew, after correspondence with Thomas Jefferson and others, that the arguments made by George Mason and other Founding Fathers for a declaration of rights had taken hold in the hearts and minds of Americans, to such an extent that the only through amending the Constitution could Congress ensure unity.

It's clear that James Madison intended these amendments to limit all powers delegated to the national government as enumerated in every clause of the Constitution, including the power delegated through the Commerce Clause. He said so quite clearly, as I've already quoted him: "an impenetrable bulwark against every assumption of power in the legislative or executive." And he proposed to protect the "great rights" after those clauses had been drafted and ratified, so the rights enumerated in the amendments were obviously meant as limits on the exercise of those clauses. Finally, with respect to the right to civil jury trials, he used the term "inviolate," meaning pure or undisturbed, untouched, and unbroken. James Madison never described the Commerce Clause as "inviolate;" he must have meant that clause to be subordinate to the right to civil jury trials.

As I wrote in February, a Constitution in which individual liberty is subordinate to Congress' power to regulate "commerce," which is so broadly defined today, is a roadmap to tyranny. Sen. Rand Paul, Justice Clarence Thomas, and Rep. Ted Poe have already sounded the warning siren on this point. Will Congress listen?

Today is the 260th anniversary of the birth of James Madison, fourth President of the United States, principal author of the Constitution and Bill of Rights, the latter of which merits him the title of "Father of the 7th Amendment." Today at Montpelier, his birthplace in Virginia and lifetime home, they're celebrating by unveiling an historical marker in honor of First Lady Dolley Madison, and by holding a wreath-laying ceremony at President Madison's grave. And so it is fitting and proper to remember the following:

James Madison loved civil suits. He considered the right to a jury trial for civil suits equal in importance to each and every right in the Bill of Rights, including the freedoms of speech, assembly and religion; the right to bear arms; the right to a jury trial for criminal cases; and the right for the states and the people to exercise those powers neither delegated to the United States not prohibited to the states and people. And James Madison NEVER, EVER, proposed anything close to the subversion of civil jury trial rights through the application of the Supremacy or Commerce Clauses.

Madison wrote the text of the 7th Amendment, posted above in the website banner, as well as the following categorical endorsement of the right to a jury trial for civil suits: "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."

Two years ago on this anniversary, Steven Waldman, the Editor-in-Chief, President & Co-Founder of Beliefnet.com , the largest faith and spirituality website, wrote a terrific piece on the Wall Street Journal describing Madison's love of religious liberty and his strenuous efforts to protect it in the Bill of Rights. Madison knew full well, from the history of the British people, that one peaceful way to ensure the free exercise of religion would be to sue anybody who would infringe upon that right, and have that claim heard before a local jury of peers. He knew that Article 39 of the Magna Carta guaranteed that right, and he knew that the British drifted away from their rights during the years of the Star Chamber. When George Mason and other patriots objected to the ratification of the Constitution without a Bill of Rights, he wanted to ensure that all Americans would recognize and protect their unalienable rights. So after the states ratified the Constitution, he introduced 17 amendments in the first Congress, of which ten were ultimately ratified.

James Madison would oppose every pro-"tort reform" bill proposed in Congress, period. No one can convince me otherwise.

(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.

The Wall Street Journal today commended Texas Gov. Rick Perry for proposing that a losing plaintiff in a civil suit pay all legal costs for the defendant, similar to what is used in the British legal system. Ironically, the WSJ refers to such a change as "revolutionary," which strikes me as rather ironic, since we fought a real Revolution precisely to stop doing things the British way. But there are substantive reasons to oppose a "Loser Pays" system imposed at any level of government.

My first objection is that any state-imposed economic disincentive artificially limits Americans from exercising their Constitutional rights. Over 500 years of experience with the British legal system led the Founding Fathers to assert time and again that Americans have a right to a civil jury trial equal to the right to a jury trial in criminal cases. James Madison, for one, called the rights enumerated in the 7th Amendment "as essential to secure the liberty of the people as any one of the pre-existent rights of nature." The Founding Fathers would never have thought about imposing economic barriers to the exercise of "unalienable" rights. Britain has used "Loser Pays" for centuries, but the Founding Fathers and their successors saw nothing about "Loser Pays" worth copying into the American legal system.

Second, plaintiffs often cannot afford to pay their own attorneys at all, except on a contingency fee basis. So "Loser Pays" is inherently pro-defendant, and would especially favor corporate defendants who can outspend any individual defendant. Already the vast majority of incidents of medical malpractice do not result in a legal claim because the costs of bringing the case outweigh the expected recovery. "Loser Pays" provisions will make it even more difficult for victims to assert their rights and seek fair compensation in court, because injured patients cannot risk the possibility of recovering little in damages but having to pay lots for the defendant's legal fees.

And is the British system really all that attractive? As one professor noted in 2005, a look at the British "Loser Pays" system "reveals a far more complex reality, one full of disputes over fees and related issues, and with plaintiffs... who can win paltry awards and still be owed astronomical legal fees." No one can reasonably assert that adding "Loser Pays" would magically reduce litigation costs; the American legal system has procedural safeguards not seen elsewhere that raise the cost to all parties, while dispute costs in Britain are set under strict standards. Maybe that's why only ONE state in the U.S., Alaska, has chosen to institute a "Loser Pays" system in its courts. The aforementioned professor wrote about the Alaska experience that "rather than reducing litigation, they often increased the amount of settlements, because the expenses at stake increased the value of a winning case." Florida implemented "Loser Pays" for years for medical malpractice cases, then reversed course amidst heavy criticism (even a "Loser Pays" proponent called it "imperfect.")

And it's not as if states haven't tried other forms of tort reform; to the contrary, most have imposed some limits on our 7th Amendment rights, claiming that tort reform would control health care costs. Texas already limits punitive damages and is recognized as one of the most pro-tort reform states in the country. That hasn't helped medical costs in Texas; the city of McAllen is one of the most expensive health-care markets in the U.S.

"Loser Pays" is another vehicle for limiting our cherished Constitutional rights. Civil suits didn't cause the Great Recession, the crackup of Wall Street, the Deepwater Horizon explosion and the worst oil spill in the world, or multiple deaths from bad products such as drop-down cribs or defective pacemakers. Civil suits protect our religious liberty and promote local control over excessive bureaucracy, and actually have added consumer protections to products such as toys and cars. Let's stop trying to take a hatchet to the Bill of Rights.

Like Alexis de Tocqueville, British Prime Minister Winston Churchill is an icon among American conservatives - Churchill for his heroic stands against Nazi and Soviet totalitarianism. And like de Tocqueville, Churchill was dedicated to the rule of law and to trial by jury in all cases, including civil cases, in order to prevent the accumulation and abuse of arbitrary power. Here's what Churchill said about this all-important right, enumerated over the centuries in British law since the signing of the Magna Carta in 1215 and in American law through the Bill of Rights:

"The jury system has come to stand for all we mean by English justice. The scrutiny of 12 honest jurors provides defendants and plaintiffs alike a safeguard from arbitrary perversion of the law."

BP has released its internal investigation report on the Deepwater Horizon disaster. Predictably, the report spreads the responsibility for various failures among the companies in the rig venture, without citing any particular reason which might leave BP, or any other company involved, open to civil liability. Note this paragraph in the Executive Summary:

"The team did not identify any single action or inaction that caused this accident. Rather, a complex and interlinked series of mechanical failures, human judgments, engineering design, operational implementation and team interfaces came together to allow the initiation and escalation of the accident. Multiple companies, work teams and circumstances were involved over time."

In other words, it just happened - "stuff happens." But this is why the British peasants at Runnymede forced King John to sign the Magna Carta in 1215 and empower their right to bring their civil wrongs before a jury of their peers. This is why our Founding Fathers created the American justice system in Article III of the Constitution, and why they empowered Americans with the 7th Amendment, based on the Magna Carta and centuries of British experience, to bring their civil wrongs before a jury of their peers. Juries are the triers of facts and can assign the legal liability for the accident and the proper compensation for the injured. The Founding Fathers trusted juries, and almost 800 years of experience shows that it's still the best system for the exercise of civil justice.

Unfortunately, because of special federal laws enacted decades ago to help shipping interests (the Death on the High Seas Act, Jones Act and the Limitation of Liability Act), victims of the Deepwater Horizon disaster have seen their 7th Amendment rights unfairly abridged. The U.S. House passed a great bill by voice vote of Republicans and Democrats on July 1 (basically a unanimous vote), only to see the Senate version bogged down by opposition from commercial fishing interests and irrelevant battling over energy policy.

Sen. Rockefeller has introduced S. 3755, a new version of the House-passed bill, in which he tries to compromise with the commercial fishing interests to simply enable the Deepwater Horizon victims to have their day in court, unhindered by outdated and unfair limits. It would end the unfair discrimination against sea-based oil rig accident victims; land-based victims suffer from no such federally imposed limit on their 7th Amendment rights. This version deserves debate and a final vote by the Senate, after which it could be quickly adopted by the House to assist the families.

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.