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There's a good discussion in conservative circles about defining a new "conservative vision" in time for the 2016 Presidential election (while there is almost no fresh intellectual output among progressives right now, especially about health care). Too many conservatives are still pining for the Reagan Days, which were fabulous (I came to Washington as a political appointee during the Reagan Administration), but it's time to move on and redefine conservatism for today's America. But one right explicitly protected in the Bill of Rights, and described by the Founders as "sacred," seems to be missing from the discussion.

For instance, Yuval Levin, editor of the quarterly National Affairs, wrote, "A Conservative Governing Vision," for National Review on May 28. He noted that what matters most to conservatives is the relationship of the individual and the state, and the "mediating institutions" between us and the state, such as families, churches, the local community, and the economy. In contrast, Levin says that progressives "have always viewed those mediating institutions that stand between the individual and the government with suspicion, seeing them as instruments of division, prejudice, and selfishness or as power centers lacking in democratic legitimacy." Progressives, in his mind, tend towards increasing the power of Washington to clear away those institutions and order our lives through compliance with public policy goals and directives. Levin sees conservatives as "empowering and incentivizing people nearest to the problems to find and apply solutions that work for them. This still involves a crucial and active role for government, but it is a much less intrusive and managerial role."

While I agree with most of Yuval Levin's piece, there's one major flaw in his Left v. Right analysis: the Left embraces the more democratic, more local means of settling civil disputes through a jury of peers - the "mediating institution" designed by the Founders based on centuries of Judeo-Christian and British-American tradition. It's the Left that protects and promotes the right to a civil jury trial that is protected by the Seventh Amendment to the Constitution. Meanwhile, the Right has increasingly accepted and proposed limits on that right through various types of "tort reform," such as centrally imposed caps on damages or a "Loser Pays" system that the Founders rejected (a.k.a. "fee-shifting").

It's the Left that is fighting mandatory clauses in consumer contracts that force us into a secret and unfair arbitration process with the rules dictated by the business. It's the Right, pushed by its corporate partners, that pushed for and won recent Supreme Court decisions that transformed one law, the Federal Arbitration Act of 1925, into the most powerful law governing our rights in everyday commerce.

It's the Left that's citing states' rights to protect the right of state legislatures, state Attorney Generals, and individual Americans to bring civil suits in state courts against businesses for defective products, from pacemakers that can electrocute you to foreign-made drywall that can poison you. It's the Right that has pushed the pre-emption of states' and individual rights through the protection of defective products through federal approval by the bureaucracies of the FDA and the CPSC.

Certainly the Left isn't pure in its proclamations on constitutional rights - too many progressives are stuck in their own time warp and hypocrisies, using the power of the EPA to overrun local land use authority and pushing the new Consumer Financial Protection Board to interfere in our financial affairs and our privacy. And many of them are still hopelessly against the Second Amendment. But when it comes to protecting the Seventh Amendment right to a civil jury trial, the Left is way ahead of the Right.

Sad to say, none of the superstars in conservative politics, media, or think tanks write or say anything about the nature, history or importance of the Seventh Amendment. Sen. Rand Paul has periodically spoken eloquently about the importance of jury trials in general, but no 2016 Republican Presidential contender has joined him (while Sen. Paul's father, former Rep. Ron Paul, actively opposed federal tort reform). No conservative politician in America has written of the Seventh Amendment right to a civil jury trial as clearly as liberal Democratic Sen. Sheldon Whitehouse did last year at a seminar. The only place in conservative America where you'll see any promotion of the right to civil jury trials is on websites and opinion pieces connected to the Tea Party. Judson Phillips of Tea Party Nation, whom I've quoted often, is clearly the conservative commentator who best understands and defends the Seventh Amendment.

Yet the right to a civil jury trial is centuries old, established in British law by the Magna Carta, sealed 799 years ago on the plains of Runnymede in England, when peasants and farmers forced King John to recognize their basic human rights. And the right to restitution for civil damages and to be judged by peers is as old as Moses - literally - codified in the Book of Exodus. Early state constitutions written by the Founders described the right to a civil jury trial as "sacred," and James Madison described it "as essential to secure the liberty of the people as any one of the pre-existent rights of nature." It was the Seventh Amendment, not the First or Second, that was unanimously adopted by all of the states in the new United States. John Adams, Thomas Jefferson and James Madison - three of our first four Presidents - were crystal clear in their respect for civil jury trials, long before the drafting of the Constitution.

Why do modern conservatives who draft "vision statements" ignore a concept that was so obvious to the Founding Fathers? It not only isn't rocket science, it isn't even political philosophy.

So in order to claim a consistent high ground, any "conservative governing vision" should stand on the shoulders of the Founders and proclaim, fearlessly and loudly, that the locally based mediating institution of the jury of our peers is the principle upon which civil disputes will be resolved. All artificial barriers to the free exercise of that right in the form of damage caps, pre-dispute mandatory arbitration clauses, and fee-shifting mandates should be opposed. That right should extend to all courts and cases, state and federal, through the incorporation of the Seventh Amendment to the states. The Founding Fathers designed a civil justice system for suits over all cases and causes, from trespass to defective products. As veteran Republican Rep. John Duncan said on radio two years ago, "I have faith in the people - I have faith in the jury system... In fact, I can tell you, you have better regulation by juries than you have by federal government regulators - it's more effective."

There are hints and whispers of an awakening to the necessity for consistent fidelity to each of the ten amendments in the Bill of Rights in the writings of constitutional experts such as Randy Barnett, Rob Natelson, Ilya Somin and others, and in comments by some Republican Attorneys General. Yuval Levin joined Republican healthcare expert James Capretta in proposing an Obamacare alternative without caps on damages, one of a number of GOP-side plans without tort reform. But those are still timid first steps toward the defense of the Seventh Amendment that you can already find in the writings of the civil justice movement of the Left.

It's time for the Right to step out and take the high ground of the Bill of Rights.

I met this week with two of the top litigators in America for social conservative cases in federal and state courts. Both are involved in civil suits filed to fight the Obamacare contraception mandate and to defend state traditional marriage amendments. I discussed two bills recently passed in the U.S. House, and supported by Congressional Republicans, with a "Loser Pays" provision that forces the losing party in litigation to pay legal fees, which is used in courts in Europe to discourage litigation. The social conservative litigators are completely opposed to Loser Pays, and I urged them to take their objections public and to inform Republicans in Congress. Indeed, they told me that many of the Obamacare contraception cases they've filed - Hobby Lobby et al - would never have been filed if we had a national Loser Pays rule in American courts.

So why are they opposed to Loser Pays?

Loser Pays rules ensure that only the wealthiest plaintiffs can afford to undertake a civil action and also punishes individuals with serious and meritorious claims for seeking access to justice. Loser Pays rules fail to recognize that a person or a business can have a legitimate claim regarding fact and law, and yet still ultimately lose the case, sometimes on procedural grounds. In reality, for most individuals and small businesses, the financial risk of having to pay the other side's costs and legal fees is one too great to bear, no matter how meritorious the claim. Indeed, Loser Pays schemes create a chilling effect on plaintiffs with worthy, legitimate disputes, and hamper access to the courts.

Loser Pays rules overlook the fact that state and federal judges have full authority to issue sanctions, including awards of legal fees, if parties engage in wrongful conduct or waste judicial resources. Mandatory Loser Pays rules trample on this tradition of judicial discretion and would overturn states' rights to define their own civil justice rules.

From a purely political standpoint, Loser Pays hurts plaintiffs within the Republican base. Loser Pays rules hurt social conservative litigators, such as the Alliance Defending Freedom, ACLJ and the Becket Fund, as well as entrepreneurs who sometimes depend on the civil justice system. The Chamber of Commerce, which proposes Loser Pays laws in states across the country, and the business community don't represent those conservative groups and small businesses and won't protect them.

Of course, Loser Pays also hurts liberal nonprofit litigation groups, but many of those groups are already fighting Loser Pays bills in Congress and statehouses across the country. They need conservative groups to start warning Republicans, before the trend goes too far.

Eminent legal scholar Rob Natelson, whose work on the inherent limitations of federal power has been cited often in recent Supreme Court decisions, "now writes that the Supreme Court's ruling last year on Obamacare renders a bill proposed by House Republicans to limit medical liability unconstitutional. To remind my regular readers, Rob Natelson is the Senior Fellow in Constitutional Jurisprudence for the libertarian-leaning Independence Institute in Colorado and an expert on the original meaning of the Constitution. He co-authored an important amicus brief on the "Necessary and Proper Clause" of the Constitution for the Obamacare case, which is cited by other anti-Obamacare legal experts. I've written often here on his work on the unconstitutionality of federal limits on damages in medical malpractice lawsuits. So his conclusion in his new work on the impact of the Obamacare decision on proposed federal medical liability limits should strike a serious blow to efforts to push the bill.

He analyzed Title V of H.R. 3121, the "American Health Reform Act" (hereinafter "AHRA"), and concludes that "for Congress to start micro-managing state courts and state juries should frighten anyone who cares about our American constitutional system." Natelson briefly describes the bill's key features: "The bill would rewrite personal injury law extensively--and not just in federal courts administering federal law. It would intrude on state courts applying state law. For example, the bill requires state judges and juries to adopt federal standards of proof, federal standards of guilt, federal damage rules, and federal deadlines. It imposes rules for attorneys' fees that override both state law and private contracts. It even mandates that some useful information be withheld from juries."

Natelson first points out that the Founders always intended "that state civil justice systems and tort law would remain free of federal control," and assertions that the Commerce Clause can be used to justify federal limits on medical liability are not based on original intent. "In 2011, I investigated the issue thoroughly, and reported my findings in a detailed paper entitled The Roots of American Judicial Federalism, available at That paper showed that (1) a core reason the Founders fought the American Revolution was to assure local control of courts, (2) the Constitution was structured to achieve the same goal, and (3) leading Founders specifically represented--not merely once or twice, but again and again--that state civil justice systems and tort law would remain free of federal control. Despite a few half-hearted assertions to the contrary, the paper's conclusions have never been seriously challenged."

Natelson then discusses why the Obamacare ruling further precludes federal medical liability limits. He reviews the history of the "the other component of the Commerce Power," the "Necessary and Proper Clause" in Article I, Section 8, Clause 18. He then describes the limits on Congressional power in two important rulings:

"The leading Supreme Court case on the Necessary and Proper Clause is McCulloch v. Maryland. In that case, Chief Justice John Marshall also explained that the Clause did not grant to Congress any 'great substantive and independent powers.' Moreover, in Gibbons v. Ogden (the first great Commerce Power case) Marshall added that 'health laws of every description' were outside the federal sphere and exclusively reserved to the states. In other words, under the view of the greatest chief justice in American history, both Title V and Obamacare are utterly unconstitutional."

Natelson then quotes from Chief Justice Roberts' ruling that the Obamacare individual mandate violates the Necessary and Proper Clause: The clause "'does not license the exercise of any "great substantive and independent power[s]' beyond those specifically enumerated. . . . Instead, the Clause is merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant. . . . [T]he individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms."

Natelson then applies Justice Roberts' reasoning to the proposed federal override in the AHRA of state tort law, concluding that proposal is unconstitutional:

"Is control of the state court systems a 'great substantive and independent power?' You bet it is. The Founders clearly considered the judiciary a very important aspect of government, and the Constitution addressed it in detail. But while prescribing the rules for the federal courts, the framers deliberately omitted any federal role in the state judiciary... The Founders obviously deemed judicial organization and procedure to be a 'great and independent' subject, worthy of much constitutional attention. Yet in all procedural and organizational particulars, they left state courts alone. They certainly granted Congress no power to micro-manage them. They left the 'great substantive and independent power' of operating the state courts to the states themselves. Under Justice Roberts' opinion, that's where it stays."

Natelson adds that Chief Justice Roberts' additional ruling that the forced Medicaid expansion in Obamacare violates state sovereignty "buttresses" his conclusion. "As in previous cases, the Court held that 'commandeering' infringes core state sovereignty. Infringing core state sovereignty violates the Necessary and Proper Clause because a federal law attacking core state sovereignty is not 'proper.' A federal statute dictating to state legislatures, judges, and juries how they manage lawsuits arising under their own state law is of that kind."

And what of the section in the AHRA titled, "State Flexibility and Protection of States' Rights?" Natelson dismisses the title as "misleading" and determines that, "In other words, a state may be 'flexible' if it does what Congress likes, but not what Congress doesn't like."

Robert Natelson joins fellow anti-Obamacare legal expert Prof. Randy Barnett, who said after the SCOTUS Obamacare ruling that, "I will help lead that challenge if ever enacted, and I think we would actually have an easier time defeating that than defeating the (Obamacare) mandate... In fact, this court would strike that down (referring to federal medmal limits)... I'll be involved in the lawsuit."

Republicans who oppose Obamacare and truly intend to uphold the original intent of the Constitution should heed Robert Natelson's warning that they would be supporting an equally unconstitutional exercise of federal power over the states, and they should oppose the bill.

N.B. In recent months, supporters of federal limits on medical liability have pointed to a November 2012 paper written by Paul Clement, who presented the case against Obamacare before the Supreme Court, as proof that the federal liability limits are allowable under the Commerce Clause. However, in his paper Mr. Clement never discussed the impact of the Obamacare opinion on the issue of federal medical liability limits.

Yesterday, the American Freedom Law Center (AFLC) filed a new lawsuit on behalf of several Catholic organizations in federal court, challenging the final regulations enforcing the Obamacare contraceptive services mandate against religious organizations. Last year, I discussed in numerous posts the lawsuits filed by religious organizations seeking to overturn the regulations prior to their final release. Faith-based groups and their allies across America are protesting the Obamacare-based mandate to force the provision of abortion-inducing drugs and devices through health insurance policies. If successful, the mandate would serve as the template for Uncle Sam to define any religious organization as it sees fit, and to dictate hiring, financial, and all organizational decisions.

AFLC is one of the groups I informally call the "Trial Lawyers For Religious Liberty," along with the Alliance Defending Freedom, Becket Fund for Religious Liberty, the American Center for Law and Justice, and Liberty Counsel. These groups, usually allied with social conservative activists and politicians, file civil suits to defend religious liberty and other freedoms protected in the Bill of Rights.

And they often request jury trials for their lawsuits, as is their prerogative under the 7th Amendment. When over 40 Catholic organizations sued to block the mandate, they cited Federal Rule of Civil Procedure 38: "Pursuant to Rule 38 of the Federal Rules of Civil Procedure, the Plaintiffs hereby demand a trial by jury of all issues so triable." That rule begins as follows:

"(a) RIGHT PRESERVED. The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate."

Some of these cases await a ruling to proceed, while others were dismissed over procedural issues. Personally, I would love to see a jury of Americans hear these cases and decide on the merits.

The Founding Fathers designed a civil justice system, rooted in the right to a jury trial for civil suits, for all cases and causes. Whether for religious liberty, property rights and free speech rights, or for medical malpractice and products liability claims, all civil claims are treated equally under the Founders' grand design. They would never have supported a "tort reform" movement that seeks to protect doctors and hospitals from deadly negligence, because they knew that abridging Constitutional rights for some endangers the rights of all Americans.

A new decision by a federal judge in a medical malpractice case raises the specter that many state caps on civil tort damages protect abortion butchers like Dr. Kermit Gosnell from full accountability before a local jury. A better name for many state caps on civil damages, and any federal cap, would be "The Dr. Gosnell Abortion Butchers Civil Protection Act."

Here's the case on point from Mississippi, in which a federal judge reluctantly upheld state medmal caps in the case of a mother and her unborn child killed by malpractice. The judge took the opportunity to sharply condemn the state-imposed cap on civil damages. Quoting from the story:

The ruling came in a wrongful death lawsuit filed by the family of a woman and her unborn baby who died after being denied potential lifesaving treatment at a hospital on the Choctaw Reservation in Neshoba County.

U.S. District Judge Carlton Reeves applied the caps in the case, finding that his hands were tied and the Mississippi Supreme Court would likely find the caps constitutional.

But Reeves found fault with the caps and what he perceived as their unfairness.

"All grief is not equal. All pain cannot be reduced to a one-size-fits-all sum. In Mississippi, though, one's suffering at the hands of a health care provider is worth no more than half a million dollars, no matter how egregious, and no matter if your suffering leads to your death, your unborn child's death, and leaves your children orphans. This is offensive," Reeves wrote on June 13 in upholding the limits.

The case was decided in federal court because the alleged malpractice took place at the Choctaw Health Center, on the reservation of the Mississippi Band of Choctaw Indians. The Choctaw Health Center operates under rules of the U.S. Department of Health and Human Services and the Indian Health Service, so the suit was filed by the family against the U.S. government. But the federal rules require that the judge apply state law, so the judge had to enforce the Mississippi cap on damages.

The case proves that in states with caps on damages, medical malpractice suits brought by families against other abortion butchers, as well as against other dangerously incompetent doctors and medical professionals, could be severely limited in impact. The Dr. Gosnells of America would be allowed to keep much of the "blood money."

So it's time to tell those professed pro-life politicians in state legislatures, Governors' mansions, and Congress to start peeling back laws capping civil damages, at least in cases involving the unborn and their mothers, and to resist any calls for a new federally imposed mandate to cap civil damages.

It's time to repeal the "Dr. Gosnell Abortion Butcher Civil Protection Acts" around the country and time to protect the unborn and mothers, and all patients, from deadly medical malpractice.

What could a libertarian, anti-Obamacare Tea Party-type Senator like Rand Paul have in common with a liberal, pro-Obamacare ACLU-type Senator like Sheldon Whitehouse? At least now we know one thing: they know and cherish the fact that the Founding Fathers designed the civil justice system, rooted in the 7th Amendment right to a civil jury system, for the powerless to challenge the Bigs of America.

Sen. Paul wants to file a class action lawsuit to protect millions of average Verizon customers and various internet users against Big Brother over the NSA spying regime (legal activist Larry Klayman has already done so). I guess Sen. Paul would now oppose any effort by the "tort reform" movement to stifle our ability to file class action lawsuits.

And Sen. Whitehouse wrote an outstanding piece this week on "The Dwindling Civil Jury," much of which could have written by Sen. Paul as well. He summarized the development of our right to a civil jury trial and the modern challenges to that right, especially those decided in favor of Big Business. Here's a segment:

The jury is more than just a means of dispute resolution, just a fact-finding appendage to the court. It is a structural element of our system of separated powers. Alexis de Tocqueville described the civil jury as an "institution of government" and a "form of the sovereignty of the people." The civil jury, according to William Blackstone, "preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens."

The earliest American settlers established juries by 1624 in Virginia, 1628 in Massachusetts, 1677 in New Jersey and 1682 in Pennsylvania. Civil juries provided a means of self-government to early Americans as they chafed under colonial rule, and efforts to deny that right helped foment the American Revolution. Americans sounded the alarm when the original Constitution was silent on the civil jury, and the Seventh Amendment -- which protects the civil jury -- was ultimately sent to the states with the Bill of Rights.

The civil jury remains an important political institution. It provides a forum in which all citizens stand equal. It further distributes power in our divided government, vesting citizens with the authority to resolve disputes among themselves. It is a bulwark against judicial autocracy, thus providing what Alexander Hamilton called a "security against corruption." It fosters civic engagement and education, serving as what de Tocqueville called "a free school which is always open and in which each juror learns his rights." It is immune from the traditional exercises of political influence. Finally, it strengthens the fabric of our democracy by bringing Americans together to deliberate on questions that are important to the well-being of our communities.

We can learn much from these two Senators who defend the basic principles of civil justice and God-given rights protected by the Founders, such as John Adams, Thomas Jefferson, James Madison and George Mason. We need more of this type of bipartisanship in Washington.

In 2011, the U.S. Supreme Court ruled in Pliva v. Mensing that a generic drug maker has no responsibility to update its warning label with new or undisclosed risks, because under federal law the drug must follow the brand label. The Court reasoned that under FDA regulations only brand drug manufacturers can automatically update their labels, and generic manufacturers must accept that label. As such, state claims against a generic manufacturer based on the content of inadequate warning labels must be preempted.

As a result, courts have dismissed hundreds of cases of patients that have been injured by dangerous generic drugs, including cases involving generic Darvocet, Reglan, Phenergan, and Ambien, citing Mensing. Pharmaceutical companies, including those making generic drugs, get a free ride because they're not required to update the warning labels and/or disclose new findings of potential harm to the public.

The Court recognized that its ruling "makes little sense" in the context of its other preemption decisions; for instance, in a previous decision involving federal preemption of state suits over defective drugs, the Court stated:

State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come forward with information. Failure-to-warn actions, in particular, lend force to the FDCA's premise that manufacturers, not the FDA, bear primary responsibility for their drug labeling at all times. Thus, the FDA long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulation.

Wyeth v Levine, 555 U.S. 555 (2009), pp. 579-80

The Mensing ruling was another blow to the states' right to administer civil justice in an area where state authority had been upheld for decades. But it wasn't the first such decision by the Court. In Riegel v. Medtronic, Inc. (2008), the Court found that in certain circumstances, a person's ability to bring a medical-device claim under state law is preempted by federal law. The Court ruled that for only "Class III" medical devices approved by the FDA under the pre-market approval process, no state law cause of action would be allowed to go forward. That case resulted in the dismissal of hundreds of cases involving defective heart pacemakers and artificial joints. The Court recently heard case involving defective generic drugs, Mutual Pharmaceutical v. Bartlett, that will decide whether generic makers face any responsibility for the overall design of the drugs they produce.

Whether the Court continues to preempt state civil suits or not, we know that the FDA cannot guarantee the safety of generic drugs. Attorney Keith Jensen recently discussed the FDA's failure to protect our health, in an interview on the "What's Up" radio program in Houston, hosted by Terry Lowry. As Mr. Jensen explained, pharmaceutical companies send trucks filled with boxes of data to the FDA with a simple letter stating that their new drug is safe and should be approved for sale. The FDA, without its own labs, reviews the company's mountain of data but cannot conduct an independent verification. Without evidence to the contrary, the FDA rubber stamps the pharmaceutical's request for sale. You can download Segment One of the interview here, then Segment Two, and then Segment Three.

We need to protect the Founding Father's vision of a vibrant civil justice system, based in the 7th Amendment right to a jury trial for civil suits, to serve as a truly effective accountability mechanism.

This is an issue in which Congress should enact a law to restore our lost rights. Please tell your Congressman and Senator to level the playing field and restore states' rights and accountability for defective generics.

Crony Capitalists (CCs) never quit trying to entice federal officials into giving them special access or favors and shutting millions of the rest of us out of court, so they have no accountability to a local jury for negligence or shoddy service. They've enlisted scores of Members of Congress, many of them self-proclaimed backers of states' rights, in an effort to to override the Founding Fathers' clear guidance that Congress doesn't have authority over state tort law, specifically with respect to lawsuits over healthcare negligence. True Federalists have had some recent success in persuading conservatives to not accede to the CCs' demands, but the CCs never quit. And while we fight that one big battle, CCs have opened up another front, with enormous success thanks to another arm of an all-powerful Uncle Sam.

Under the nose of the vast majority of Americans, Crony Capitalists have been moving to shut out millions of us from exercising our 7th Amendment rights over bad products or services, based on one rarely read paragraph in consumer contracts. That paragraph, in everything from cell phone and car contracts to employment agreements, requires us to submit to binding arbitration, and to not file a lawsuit, as a condition of even buying the product or service. Forced arbitration clauses eliminate the ability to hold wrongdoers accountable, even in the most egregious cases involving the abuse of children and the elderly, intentional wrongdoing, and gross violations of law.

These clauses force us to give up our God-given, constitutionally protected right to go to court in favor of being relegated into a system of secret arbitration, where the arbitrators and the rules are chosen by the very company against whom the individual has a grievance. There are no due process standards, no guarantees that the applicable laws will be upheld, and no public records of the proceedings.

Let me stress that there's nothing wrong with voluntary arbitration in which both sides have an equal chance before an impartial arbitrator in an open process. That's not what happens in the current arbitration environment. The little guy has almost no shot whatsoever. And the mainstream press never touches the subject.

It's been trending this way for years, but Crony Capitalists have received a huge boost from the supposedly-conservative Supreme Court in the quest to shut courthouse doors over forced arbitration clauses. The Court's recent decisions have turned an almost-80-year-old law, the Federal Arbitration Act, into a giant club with which to crush states' and individual rights. Two Texas state judges summarized the state of forced arbitration and recently wrote the following:

Our Seventh Amendment right to a jury trial is vanishing before our very eyes thanks in large part to an increased reliance upon alternate dispute resolution and mandatory arbitration. While a sound argument can be made for the utility of arbitration in arms-length commercial transactions, the consequences are particularly dire in situations involving consumers and employment consequences... AT&T and Rent-A-Center pushed the FAA's scope to new limits. Courts are now unlikely to find contracts with arbitration provisions unconscionable no matter what state law provides. It is obvious that the application of the FAA has expanded beyond its drafters' intent and in the face of apparent deficiencies.

Last week, a federal securities regulator gave preliminary approval to a plan by the discount brokerage firm Charles Schwab to require all 8+ million accountholders to agree to forced arbitration, even if Schwab violates securities law. POOF! There goes the constitutional rights for over 8 million people. Betcha every stock brokerage firm copies Schwab, basically enabling Wall Street, which already liquidated billions in pension accounts, to throw ethics out the window again and take investors into another financial crash without penalty.

Tomorrow we'll see if the Supreme Court will take forced arbitration another step further and force small businesses with American Express accounts to submit to forced arbitration procedures designed and run by AMEX. If the Supremes are consistent, every small business with a Gold Card will know how individuals feel when the phone company tells us to go to arbitration or enjoy our crummy phone.

WHAT'S NEXT?! Will we see a sign on the grocery store door and on receipts, telling us that the purchase of food there constitutes an agreement to not sue it for spoiled, poorly stored food that makes us sick? Will we see a little paragraph on our car mechanic's bill, telling us that we can't sue for a dangerously negligent care repair, even if we're killed?

When will Congress start taking this seriously and change the Federal Arbitration Act so we can exercise our rights in state courts, as the Founders said we should?

UPDATE, March 4: I Discussed this issue on the What's Up radio program, hosted by Terry Lowry and broadcast on 100.7 FM KKHT, the Word Live stream at in Houston, TX, and on KBXD-AM 1480 in Dallas. You can download and listen to the interview in three segments:
Segment One
Segment Two
Segment Three

Two families of students killed in the 2007 mass shooting at Virginia Tech are in court today, asking a three-judge panel of the Virginia Supreme Court to allow them to appeal a judge's decision on the negligence case they successfully pursued against the university. The families of Erin Peterson and Julia Pryde sued the university for negligence, and the jury agreed and awarded $4 million to each to the families. But a state appellate judge reduced the awards to $100,000 under a state law capping non-economic damages. The families want to reinstate the university president as a defendant, but I object to the reduction in the damages award.

That reduction begs the following questions: Why don't we trust the same jurors who hear all of the facts, listen to all of the testimony, and determine legal liability to determine the amount of damages? What makes a judge, or any small group of judges, so special that they should have the power to override a jury's decision? Why do we allow state legislators to arbitrarily set a rigid cap on non-economic damages? Can't state law at least enable a jury to "bust the cap" as it sees fit in unique circumstances? Where in the Founding Documents of the United States is there any support by the Founding Fathers for the idea of overriding a jury's decision on damages through an inflexible state statute or an arbitrary decision by a judge?

The jury in the Virginia Tech shootings case found that the university's senior officials were negligent in not warning students that a homicidal maniac had already killed students and was on the loose. The jury consciously decided that the university officials were so grossly negligent that the they had to award millions of dollars in damages to the families. That decision by twelve honorable Virginians should have been honored in state law and by state judges.

I hope the Virginia Governor and General Assembly will consider that their fellow Virginians Thomas Jefferson, James Madison and George Mason honored and protected the jury's right to determine civil liability and never, ever, proposed limiting a jury's discretion to award damages. It was Madison who described trial by jury in civil cases "as essential to secure the liberty of the people as any one of the pre-existent rights of nature" and who protected it in the Seventh Amendment. Mason refused to sign the Constitution because of the absence of a Bill of Rights, and he specifically demanded trial by jury in civil cases. To arbitrarily cap a jury's award, without even the ability of a single jury to override a statutory cap in special circumstances, ignores the unique place granted to civil jury trials by Founders such as Jefferson, Madison and Mason and dilutes the power of a jury to hold a defendant fully liable for gross negligence.

It wasn't difficult to see liberals standing on the Mall in Washington, bundled in warm clothing and loudly cheering President Obama's Inaugural Address, with the promise of larger and more activist central government deployed to implement a "progressive" agenda. But I saw another group smiling softly deep in the background. It was the Crony Capitalists, watching from warm, comfortable Fortune 100 boardrooms across America and on Wall Street, and their K Street lobbyists in DC, all nodding their heads at the opportunity to transform that vision into new laws and regulations that would benefit their own interests. That's the way it works in Washington, and the rest of us are the cream in the Oreo cookie, stuck in the middle and crushed by both sides.

Liberals, especially those dedicated to the cause of civil justice, should be careful what they wish for in the next four years. An Uncle Sam unleashed from the limits on centralized power designed into the Constitution and Bill of Rights could hinder or even crush the individual right to have civil suits heard before a local jury and the right of state governments to enforce local laws benefitting the consumer. In the hands of Big Government Liberals and Crony Capitalists working behind closed doors in smoke-filled rooms, phrases of Obama's speech such as "collective action" and "common effort" could result in budget "compromises" and "Grand Bargains" that leave us with ugly surprises, such as federal caps on damages in medical malpractice lawsuits filed in state and county courts; preemption of state consumer protection laws; and limits on the authority of state Attorneys General. Is that what liberals signed up for when they cheered President Obama?

Civil justice activists of all stripes should heed and cite the majority decision by the Supreme Court in the Obamacare ruling. Thankfully, the Court expressed the need for the Executive Branch and Congress to recognize and follow constitutional limits on their authority under the Commerce Clause and the Necessary and Proper Clause. Constitutional experts whose theories were adopted by the majority, such as Randy Barnett and Rob Natelson, have already made it clear that the Roberts decision imposed new limits on the unbridled ambition to override state governments and individual rights. Randy Barnett promises to lead any legal challenge to an enacted federal cap on medmal damages, and both experts predict such a law would be struck down by the current Court. As long as that opinion isn't overruled through the appointment of justices who believe in an unlimited Commerce Clause, as promoted in Justice Ginsberg's minority opinion, the Founding Fathers' vision of a civil justice system dominated by local juries, and not bureaucrats in Washington, will remain alive.

Ironic, isn't it? Civil justice advocates on the left need libertarians and constitutional conservative thinkers such as Randy Barnett and Rob Natelson; conservative Republicans such as Ted Poe, Louis Gohmert, Tom Coburn, Mike Lee and Ken Cuccinelli; and wise Tea Party activists such as Judson Phillips, to keep the promise of equality under law. Let's hope civil justice liberals realize it.

Three recent proposals by highly respected conservative health care experts indicate how far out of favor the idea of capping medical malpractice damages through federal law has fallen in the past two years. Increasingly, the experts who guide Republicans in health care policy are accepting the likelihood, as stated by Randy Barnett this summer, that the post-Obamacare Supreme Court would overturn any federal law mandating caps on damages in medmal lawsuits, while NECC's negligence leading to the meningitis outbreak across the country has turned federal immunity from liability into something politically radioactive.

Tom Miller of AEI has written a 62-page piece with a playbook for market-based reform. I knew Miller years ago when he worked at the libertarian Cato Institute; he has always been a strong proponent of federalism and never really signed up for federal medmal caps. On page 55 he writes that "Exclusive reliance on caps on damages for noneconomic injuries may provide some short-term relief in lowering malpractice insurance premiums, but they may prove too arbitrary. Imposing them at the national level (except for federal programs like Medicare and Medicaid) also threatens to infringe on the traditional role of states in handling such issues. Other medical liability reforms, like health courts, early-offer incentives, and a no-fault schedule of damage claim amounts, merit further consideration."

Jim Capretta of AEI, one of the most quoted health care experts among Republicans, has been a friend for years with whom I've had several great conversations on the topic. He has a new 10-page piece out in which he doesn't even mention medmal caps, the first time he's dropped it completely from his work. Jim has moved towards protecting federalism in all health care law as doctors' demands for federal protection exposed Republican inconsistency with the party's stand against Obamacare.

Avik Roy, a fellow at the Manhattan Institute and a health care policy advisor for Republican Presidential nominee Mitt Romney, has always argued against federal medmal caps. This year, he promoted a Tea Party-side plan proposed by Rep. Paul Broun, M.D., who also vocally opposes federal medmal caps. Now Roy has his own Obamacare replacement plan, and federal medmal caps are nowhere to be found.

Of course, politicians in a position of authority can propose whatever they want to do, but these proposals indicate that federal medmal caps are no longer a high priority in the Republican health care agenda. The constitutional arguments against it make it unlikely to survive in court, and the political cost of immunizing the NECC's of the country from deadly errors is too great.

Republicans are searching for ways to avoid automatic cuts of hundreds of billions of dollars in defense spending, and many are turning to the Simpson-Bowles Commission report for ideas. But deep inside the Simpson-Bowles recommendations and many Republican bills to avoid the sequester is an idea which could render any bill unconstitutional. That idea is a federal cap on damages in medical malpractice lawsuits. Anti-Obamacare legal experts such as Prof. Randy Barnett and Virginia AG Ken Cuccinelli are convinced that such a law is unconstitutional. Last year, Prof. Barnett wrote in May, and again in November, that tort law belongs to the states, and thus is beyond the reach of federal authority.

Recently Prof. Barnett took his opposition further, vowing to lead a court challenge to any enacted federal medmal law. He participated in a post-Obamacare teleforum run by the Federalist Society on July 17. I called in and asked Prof. Barnett about the impact of the decision on federal tort reform bills, and specifically on the federal medmal limits pushed by many GOP leaders.

Prof. Barnett responded by saying that the jurisdictional basis for federal tort reform can now be "easily challenged," He added, "I will help lead that challenge if ever enacted, and I think we would actually have an easier time defeating that than defeating the (Obamacare) mandate... In fact, this court would strike that down (referring to federal medmal limits)... I'll be involved in the lawsuit."

Attorney General Cuccinelli also promised in 2011 to sue to stop federal caps on medmal damages. "This legislation expands federal power, tramples the states and violates the Constitution. And if it were ever signed into law -- by a Republican or Democratic president -- I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later)."

They're not alone among conservative and libertarian legal experts and Members of Congress. On July 27, Rob Natelson of the Independence Institute and the Tenth Amendment Center posted, Obamacare Decision Suggests U.S. Malpractice Bill Unconstitutional, in which he wrote, "Chief Justice Roberts' health care opinion strongly suggests that the Necessary and Proper Clause is simply not broad enough to include the kind of control over state courts that H.R. 5 would impose... It seems clear that the Supreme Court will not tolerate efforts by Congress to dictate rules and procedures to state courts. In light of this new information, the sponsors of H.R. 5 should honor their oath to support the Constitution by promptly withdrawing the bill."

Other libertarians and conservatives opposing federal medmal caps on constitutional grounds include Senators Tom Coburn and Mike Lee; Prof. John Baker; Ms. Carrie Severino of the Judicial Action Network; Prof. Ilya Somin of George Mason Law School; and even Walter Olson and Ted Frank, who criticize the plaintiffs' bar at every opportunity. State legislators of both parties have repeatedly condemned Republican votes for a federal takeover of state tort law through medmal caps.

The SCOTUS Obamacare decision highlighted the limits of federal authority over states' and individual rights. Over and over again, Chief Justice Roberts wrote of the Constitution's enumerated powers for the federal government and of the need to protect states from an overreaching federal government. He defined states' rights in terms of the inherent "police power" which is reserved for the states.

So what is included under the umbrella of the constitutional "police power?" In May of 2011, Randy Barnett wrote, "Tort law is at the heart of what is called the 'police power' of states... Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power."

So any law which includes federal caps on medmal damages WILL face a lawsuit, led by Prof. Barnett and Attorney General Cuccinelli, and supported by many or most of the anti-Obamacare Legal Dream Team. And that law has a decent chance of being struck down as an unconstitutional exercise of the Commerce Clause and the Necessary & Proper Clause.

That's no way to avoid a sequester.

Prof. Randy Barnett was one of the leading theorists among Tea Party activists and Republicans in the court battles against Obamacare. He was co-counsel for the complaint filed by the NFIB, which was eventually the basis for the Supreme Court ruling that Obamacare is an excessive use of federal power and an invalid exercise of the Commerce Clause and the Necessary and Proper Clause.

Prof. Barnett has also been a staunch opponent of federal tort reform bills, and for the same reason as his opposition to Obamacare. Last year, he wrote in May, and again in November, that tort law belongs to the states, and thus is beyond the reach of federal authority. "Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power." He's been joined in that view by other libertarian and conservative legal scholars, such as John Baker, Carrie Severino, Ilya Somin, and Rob Natelson, and by elected Republicans such as Virginia Attorney General Ken Cuccinelli, Senators Tom Coburn and Mike Lee, and numerous House Republicans who honor federalism.

While GOP leadership has quoted and promoted Prof. Barnett's views on Obamacare, they've completely ignored him on the subject of federal tort reform, and in the process overridden opposition by constitutional conservatives in both houses. House leaders attached H.R. 5, a bill mandating federal limits on damages in medical malpractice lawsuits, to two bills to ensure House approval, and Senate GOP leaders attached their version of H.R. 5 to a Republican "jobs bill."

Now Prof. Barnett has taken his opposition further, vowing to lead court challenges to any enacted federal medmal law. He is convinced that the Supreme Court's Obamacare ruling makes a constitutional challenge to such a law much more likely to succeed. He participated in a teleforum on the post-Obamacare environment run by the Federalist Society for members on July 17, and the Society finally posted the podcast last week. As a member of the Federalist Society, I was entitled to participate, so I asked Prof. Barnett about the impact of the decision on federal tort reform bills, and specifically on the federal medmal limits pushed by GOP leaders.

Prof. Barnett responded by saying that the jurisdictional basis for federal tort reform can now be "easily challenged," He added, "I will help lead that challenge if ever enacted, and I think we would actually have an easier time defeating that than defeating the (Obamacare) mandate... In fact, this court would strike that down (referring to federal medmal limits)... I'll be involved in the lawsuit."

You can download and listen to the entire podcast from the Federalist Society's website (MP3 file). My question and his response start just after the 51:10 mark.

Prof. Barnett isn't the first Tea-Party-side constitutional scholar to write that the SCOTUS Obamacare decision makes a federal law limiting medmal damages more likely to be found unconstitutional. On July 27, Rob Natelson of the Independence Institute and the Tenth Amendment Center posted, "Obamacare Decision Suggests U.S. Malpractice Bill Unconstitutional," in which he wrote, "Chief Justice Roberts' health care opinion strongly suggests that the Necessary and Proper Clause is simply not broad enough to include the kind of control over state courts that H.R. 5 would impose... It seems clear that the Supreme Court will not tolerate efforts by Congress to dictate rules and procedures to state courts. In light of this new information, the sponsors of H.R. 5 should honor their oath to support the Constitution by promptly withdrawing the bill."

So it's likely the same group of legal libertarian and conservative scholars who opposed Obamacare will also oppose federal limits on medmal damages and other federal tort reform bills. Republican leaders who insist on capping victims' rights in federal law now face the embarrassing spectacle of seeing their brightest legal stars publicly opposing them in public and in the courts.

On July 18, Wheaton College, one of most famous evangelical colleges in the U.S., joined The Catholic University of America in protesting the Obamacare HHS mandate by filing its own suit, with the Becket Fund for Religious Liberty as the attorney of record. In a press release, the Becket Fund noted, 'This alliance marks the first-ever partnership between Catholic and evangelical institutions to oppose the same regulation in the same court.'

And on Page 30 of the complaint, you'll see the sentence, "Wheaton requests a trial by jury on all issues so triable." Like many of the institutions filing suit against the mandate, Wheaton College is exercising its right to a civil jury trial as protected by the Seventh Amendment to the Constitution.

Faith-based groups and their allies across America are protesting the Obamacare HHS mandate to force the provision of abortion-inducing drugs and devices through health insurance policies. For the first time in American history, a President is trying to impose a narrow definition of "religious institution," in order to implement a political agenda. The definition could force the closure of faith-based services organizations, such as AIDS clinics, schools, and hospitals. If successful, the mandate would serve as the template for Uncle Sam to define any religious organization as it sees fit, and dictate hiring, financial, and all organizational decisions.

The Wheaton College lawsuit is the latest salvo in the ongoing protest. On June 14, the Catholic Heath Association, the largest groups of Catholic-based hospitals in the U.S., issued a letter opposing the HHS mandate. On June 11, over 150 faith-based organizations joined in a letter to HHS Secretary Sebelius, expressing "grave concern" over the impact that the Obamacare mandate will have on religious freedom. And on May 21, lawsuits were filed against the mandate by 43 Catholic dioceses, organizations and universities, specifically invoking their Seventh Amendment rights and demanding that local juries hear the suits, not judges. Other suits against the mandate were filed at various times by Christian colleges and state Attorneys General.

This legal battle is yet another reminder that the Founding Fathers designed a civil justice system rooted in the right to a jury trial for civil suits for all cases and causes. Religious liberty, property rights, free speech rights, medical malpractice claims, and products liability claims are treated equally under the Founders' grand design. The Founders wrote of the need to protect the right to a civil jury trial from before the Revolutionary War through the debates by the states on the ratification of the Constitution, and then to the adoption of the Seventh Amendment as part of the Bill of Rights. The Seventh Amendment was unanimously approved by the states. At no time did the Founders discuss abridging that right by splitting cases or causes of action into economic and non-economic, with different rights for different types.

The Supreme Court's decision in the Obamacare case (Acrobat document) highlighted the limits of federal authority over states' and individual rights. Over and over again, Chief Justice Roberts wrote of the Constitution's enumerated powers for the federal government and of the need to protect states from an overreaching federal government. He defined states' rights in terms of the inherent "police power" which is reserved for the states. Here is a key quote:

The Constitution may restrict state governments--as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and do perform many of the vital functions of modern government--punishing street crime, running public schools, and zoning property for development, to name but a few--even though the Constitution's text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the 'police power.' See, e.g., United States v. Morrison, 529 U. S. 598, 618-619 (2000).

And Justice Roberts was unwilling to enable the federal government to mandate the purchase of health insurance under the Commerce Clause, in contradiction to the "police power" of the states.

"The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States... The Government argues that the individual mandate can be sustained as a sort of exception to this rule, because health insurance is a unique product... The proximity and degree of connection between the mandate and the subsequent commercial activity is too lacking to justify an exception of the sort urged by the Government. The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to 'regulate Commerce.'"

Justice Roberts cited the U.S. v Morrison case, in which then-Chief Justice Rehnquist wrote several times that the Constitution reserved the "police power" to the states, and quoted from the Supreme Court's ruling in the U.S. v Lopez case: "[W]e always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power."

Paul Clement, who argued the case against Obamacare before the Court, also asserted that "the police power resides with the states" in a debate at the 2011 Federalist Society national convention. In the brief filed for the State of Florida before the Court, he asserted that the Constitution "reserves the plenary police power to the states" (page 17 of the brief).

So what is included under the umbrella of the constitutional "police power?" Well, one of the Republicans' favorite legal experts and anti-Obamacare theorists says that tort law is a "police power" not subject to federal authority:

Prof. Randy Barnett, in May 2011: "But tort law -- the body of rules by which persons seek damages for injuries to their person and property -- has always been regulated by states, not the federal government. Tort law is at the heart of what is called the 'police power' of states... Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power."

And other top Republican, anti-Obamacare constitutional experts clearly agree with Prof. Barnett's conclusion that Congress has no business regulating tort law through, for instance, federal limits on awards in medical malpractice lawsuits.

Virginia Attorney General Ken Cuccinelli, in November 2011, writing about a Senate bill to cap awards in medical malpractice cases: "The legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia's) against the individual mandate of the 2010 federal health-care law... This legislation expands federal power, tramples the states and violates the Constitution."

Sen. Mike Lee on Fox Business Network in March: "It's the states that license and regulate health care, health insurance companies. It's the states that come up with the system of tort laws that govern medical malpractice lawsuits."

Prof. John Baker, in June 2011: "To justify their efforts to nationalize medical malpractice law, House Republicans are stretching the Supreme Court's New Deal Commerce Clause jurisprudence almost as far as Democrats did for Obamacare."

Carrie Severino of the Judicial Action Network, in October 2011: "The law's own justification for its constitutional authority should be chilling to anyone committed to limited federal power... Congress would be nationalizing purely local activity because state-by-state solutions would require a lot of resources and hard work."

Rob Natelson, writing about the Founders' intentions in the Constitution in his monograph titled, 'The Roots of Judicial Federalism': "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."

So there's no argument among top Republican experts - tort law just isn't a federal issue, and the Obamacare decision only made that point perfectly clear.

Judson Phillips, founder of Tea Party Nation and Associate Director of, has been defending the 7th Amendment for much of the past year, and is among the national conservatives most quoted on the unconstitutionality of federal limits on medical malpractice awards. Judson's years of experience in the courtroom as a litigator and prosecutor, and his years of political activism, endow him with special credibility on these issues. Last week, he challenged the conventional wisdom on the impact of Texas state limits on medmal awards in a post and a radio interview.

Judson posted 'A hollow liberty' on on July 9. In it, he discussed the deterioration of the constitutional right to a civil jury trial through tort reform laws. He then described a famous medmal case in Texas in which the victim was left with no means of exercising his right to hold the negligent doctor accountable in court, thanks to Texas medmal limits. Here is an excerpt:

"What good is a right if you cannot exercise it? That is not one of those, if a tree falls in the forest and no one hears it, does it make a sound questions. Our Constitutional rights are under assault from various sources. Those who want to attack our rights have learned they can never get those rights repealed, so instead they simply try to make it impossible for those rights to be exercised.

What happened to Charles Caldwell is a terrible example of what has gone wrong. Caldwell suffered from Parkinson's disease and went to a nursing home after surgery to recover. Among other things, a feeding tube was placed in his stomach because he could no longer swallow.

His son and daughter in law Bill and Kelly Putnam were visiting his father when the nurses at Signature Pointe Nursing home tried to give medications to Caldwell through his feeding tube. When the medicine did not go down the right way, the nurses tried the old fashioned method of "if it doesn't go, force it." After three tries it did not go. Finally Caldwell began to struggle and thrash. The medicine had gone into his lungs instead of going into his stomach. Caldwell drowned on medicine in front of his family.

When Putnam decided he was going to sue over his father's death, he found the hard truth about Tort Reform. No lawyer would take the case. It was not that it was not a strong case. It was a strong case. Simply put, because of Tort Reform lawyers can no longer take those types of cases because they are no longer economically viable for the lawyers."

Judson reminded his readers that it's impossible for us to exercise our 7th Amendment rights if we state-imposed limits disincentivize lawyers to take the case. "By imposing caps on so-called "non-economic" damages, lawyers can no longer take these types of cases. Lawyers have staffs they have to pay. They have expenses such as the costs of their offices. Plus in cases such as these, the lawyer will advance the costs for expenses such as the required experts who must review cases before a suit is filed. Without a lawyer, the 7th Amendment Right to a jury trial is effectively gone."

And he referred to recent studies concluding that Texas medmal limits have neither kept health care costs down nor attracted doctors to Texas. "The myth of tort reform is that it will reduce costs and will attract doctors to the profession. Unfortunately as with all myths, that one is untrue. Healthcare costs in Texas have not been reduced, nor are doctors flocking to Texas."

Judson Phillips concluded with a warning for Americans about the future if Congress imposes a federal limit on medmal awards. "What has happened is that another right has been lost. Freedom is reduced and liberty has taken another step towards becoming simply a hollow shell."

He was interviewed about this issue on July 11 by Terry Lowry for his nationally syndicated 'What's Up' program, heard weekdays on 12 radio stations and on Sirius Channel 131, Family Talk Radio. You can download and listen to the first segment here and the second segment here. That program is the only nationally broadcast program on radio or TV to regularly defend and discuss our constitutional right to a jury trial for civil rights and deserves our support.

I want to post links to podcasts of two interviews I've recently done on the unconstitutionality of federal tort reform.

The group 'Let America Know' interviewed me for their July 12 "You Should Know" newsletter, sent to 50,000 subscribers. In the podcast, I summarized the Founding Fathers' writings, assertions by legal experts on the unconstitutionality of federal caps on medical malpractice damages and other tort reform measures, and the impact of Texas medmal limits. For regular readers of my work, there's nothing new, but if someone wants a 15-minute summary of everything I've do, this podcast will do nicely (MP3 file). Please note that I recorded the interview before the Supreme Court's Obamacare decision, so it doesn't reflect the substantial impact of that ruling on this issue. LAK was founded by Art Kosieradzki, a practicing attorney in Minneapolis, and now partners with state trial lawyer associations and the American Association for Justice, one of my clients, to teach Americans about the civil justice system and Seventh Amendment right to a civil jury trial.

I was interviewed on July 10 by Terry Lowry for his nationally syndicated 'What's Up' program, heard weekdays on 12 radio stations and on Sirius Channel 131, Family Talk Radio, to discuss the post-Obamacare landscape for federal tort reform (MP3 file). That program is the only nationally broadcast program on radio or TV to regularly defend and discuss our constitutional right to a jury trial for civil rights and deserves our support.

I want to thank LAK and Terry Lowry for their invitations to discuss these issues and hope readers will distribute the podcasts nationwide, especially in this election year.

In the Obamacare decision on Thursday, the five conservative Supreme Court Justices rejected the unlimited scope of the Commerce Clause and the Necessary & Proper Clause envisioned by proponents of federal tort reform bills (especially caps on damages in medical malpractice lawsuits). Justice Roberts was especially deferential to federalism, employing the terms "state sovereignty" and "enumerated powers" often in his decision. Proponents of federal tort reform are among the big losers in the Obamacare decision.

Moreover, the majority adopted the framework for decisions on both clauses as proposed in amici briefs or articles by numerous anti-Obamacare legal experts, such as Profs. Randy Barnett and Ilya Somin; Virginia AG Ken Cuccinelli; Rob Natelson of the Independence Institute and Tenth Amendment Center; Prof. John Baker of LSU and Catholic University Law Schools; Carrie Severino of the Judicial Crisis Network; and Senator Mike Lee.

Each of the conservative and libertarian legal experts cited above are anti-Obamacare AND anti-federal tort reform. They know that Obamacare and federal tort reform, especially H.R. 5, the bill to cap medmal damages, are the "Wickard Twins," equally based on the 1942 Wickard v Filburn decision by the Supreme Court. The decision, cited numerous times in the Obamacare decision by all of the Justices, led to the explosion in the scope of the Commerce Clause that finally ended with the Obamacare ruling.

And other legal experts, particularly Rob Natelson, have written frequently that the Necessary & Proper Clause doesn't create additional powers for Congress; it enables Congress to exercise those powers which are merely "incidental" to Congress's enumerated powers. The conservative majority adopted that view in toto, thus further limiting the constitutional basis for federal laws designed to take over state tort law and courtrooms.

So any Congressman or Senator looking for support from Randy Barnett, or any of the other experts cited above, for federal tort reform is in for a rude awakening. They've already warned Republican leaders that federal tort reform, especially medmal caps, are just as unconstitutional as Obamacare, for the same reasons. Those leaders just don't want to listen.

Here are illustrative quotes in Justice Roberts' rulings on the Commerce Clause and the Necessary & Proper Clause, equally applicable to any federal scheme to take over state tort law:

"State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power." New York v. United States, 505 U. S. 144, 181 (1992). Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens' daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which "in the ordinary course of affairs, concern the lives, liberties, and properties of the people" were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293(J. Madison).."

"The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer."

"The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States."

"Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power...The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power... Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it."

Last week, scores of influential Catholic and Christian groups publicly backed the principles underlying the lawsuits filed on May 21 by Catholic dioceses and groups against the Obamacare drug and device mandates. The announcements should add considerable pressure on the Obama White House to rescind or amend HHS regulations ordering faith-based groups to engage in health care activities totally contrary to the congregations' religious doctrines.

On June 11, over 150 faith-based organizations joined in a letter to HHS Secretary Sebelius, expressing "grave concern" over the impact that the Obamacare mandate will have on religious freedom. The Institutional Religious Freedom Alliance, a Washington, D.C.-based coalition, organized the letter. It was signed by aid organizations, including World Relief and the U.S. branches of the Salvation Army and World Vision, Inc, as well as by the National Association of Evangelicals; the National Hispanic Christian Leadership Conference; the Baptist Bible College & Seminary; and the North American Baptist Conference. Legal organizations involved in lawsuits against the Obamacare mandate, such as Liberty Counsel and the American Center for Law and Justice, also signed the letter. They wrote:

As leaders and supporters of faith-based service organizations, we write to express our grave concern about the two-class concept of religious organizations that has been created by your department and other federal agencies in connection with the contraceptives mandate of the health insurance regulations for preventive services for women.

But we are united in opposition to the creation in federal law of two classes of religious organizations: churches--considered sufficiently focused inwardly to merit an exemption and thus full protection from the mandate; and faith-based service organizations--outwardly oriented and given a lesser degree of protection. It is this two-class system that the administration has embedded in federal law via the February 15, 2012, publication of the final rules providing for an exemption from the mandate for a narrowly defined set of "religious employers" and the related administration publications and statements about a different "accommodation" for non-exempt religious organizations.

On June 14, the Catholic Heath Association, the largest groups of Catholic-based hospitals in the U.S., delivered a crushing blow to any hopes that the Obamacare mandates would find any approval among leading Catholic-based organizations. The Catholic Health Association, the largest group of Catholic-affiliated hospitals and nursing homes in the country, issued a letter opposing the HHS mandate. The CHA's opposition is especially damaging to the future of Obamacare because (a) it represents 600 hospitals and hundreds of nursing homes (one of every six patients in the U.S. is cared for in a Catholic hospital); and (b) it supported the enactment of Obamacare and was a key player in votes for the law by Catholic Democrats in the U.S. House.

CHA President, Sister Carol Keehan, wrote in the letter that, "we continue to believe that it is imperative for the Administration to abandon the narrow definition of "religious employer" and instead use an expanded definition to exempt from the contraceptive mandate not only churches, but also Catholic hospitals, health care organizations and other ministries of the Church."

In other words, the Obamacare mandate would force CHA-member institutions to either turn away non-Catholic patients or close. That's what numerous Catholic social services organizations have said - hospitals, nursing homes, AIDS clinics, and local clinics for the poor could all close.

These letters are precursors to the next stage of lawsuits against Obamacare by faith-based social service organizations, unless the White House amends or rescinds the current version of the mandate or the Supreme Court throws out the entire law.

The 43 Catholic dioceses, organizations and universities that sued the Obama administration on May 21 invoked their 7th Amendment rights and demanded that local juries hear the suits, not judges. It would be better if push doesn't come to shove, but if it does, the nation will see why the Founding Fathers were unanimous in including this "sacred" and "inviolable" right in the Bill of Rights.

Only one nationally broadcast radio program regularly supports the right to a jury trial for civil suits, a right protected by the 7th Amendment to the Constitution. It's the 'What's Up' radio program, broadcast daily at various times on twelve radio stations and on Sirius satellite radio on Channel 131, Family Talk Radio, at midnight Eastern time.

Based in Houston, the program is hosted by Terry Lowry, a longtime broadcaster and dedicated Christian who has been involved in conservative causes for years. Terry's broadcasts mix discussions on the political issues, practical advice about life and family, and Christian-oriented spirituality.

But Terry is also dedicated to fighting to protect our constitutional rights, including our right to bring our medical malpractice and other tort claims before a jury of our peers, just as the Founding Fathers intended. Several times a week, Terry discusses the right to a civil jury trial with legal experts and Congressmen such as Professor Randy Barnett and Rep. John Duncan (R-TN), respectively.

I've been honored to be a frequent guest to discuss the need to protect the right to a civil jury trial for lawsuits over the full range of constitutional rights, from medmal claims to religious liberty issues and property rights.

Terry's broadcast on May 30 is a case in point. He broadcast a segment with me about Texas Republican Rep. Louie Gohmert's strong objections to federal tort reform as a violation of states' rights, and another segment focusing on the recent study in the failure of Texas state limits on awards in medmal lawsuits. You can download and listen to Segment 1 here and listen to Segment 2 here.

He then broadcast two segments with Alex Winslow, Executive Director of Texas Watch, a consumer watchdog group, about the history and failure of Texas medmal limits. I consider Alex among the premier experts on the truth underneath the wild claims of success by proponents of that law. You can download and listen to Segment 1 of that interview here, then listen to Segment 2 here.

Then Terry broadcast an interview with an Israeli government official about Iran's nuclear weapons program. That's Terry - he's able to pivot from local to international issues, from constitutional law to foreign affairs, and educate his listeners on all of them. And he's as well-versed on the history of the right to a civil jury trial, from the time of Moses to this year's votes in Congress, as any Member of Congress.

Anyone whose life, business or cause depends on open access to courtrooms and juries should download and listen to Terry Lowry's podcasts on the need to protect the right to a civil jury trial for all causes and cases. And then send the podcasts to your friends to open their minds to the intent of the Founders.

Terry needs and deserves our support, especially in an election year.

Two things, actually.

First, none of the three are proper subjects for the federal government under the Constitution. Neither domestic relations law governing marriage, nor health care, nor tort law are matters enumerated for the federal government.

Powerful groups on the liberal or conservative side ignore the limits of the Constitution in order to change that in each case. Gay marriage advocates want the federal judiciary or Congress to override state marriage laws.

President Obama and Democrats forced the individual insurance mandate down our throats with the assistance of the AMA and health care-related associations, and those same health care associations have enlisted Congressional Republican leaders in an effort to override state tort law by effectively immunizing them from medical malpractice lawsuits.

In each case, the advocates ignore centuries of established common law precedent and the clear writings of the Founding Fathers. Congressional Republican leaders oppose gay marriage and Obamacare, but their own hypocritical campaign for federal limits on medmal lawsuits invites Democrats and gay marriage advocates to do so for their causes.

The second similarity is that truly principled constitutional conservatives and Tea Party-side legal experts recognize that Uncle Sam has no business overriding states' rights in any of these cases.

Ken Cuccinelli, Attorney General of Virginia, gave an interview last August in which he stressed the importance of maintaining a consistent defense of the state' authority over marriage. "The Supreme Court ruled that marriage is not a subject that the federal government can exercise jurisdiction over," he said. "Including the courts."

"Frankly, I think it is worth some consideration for the things that aren't reached by the federal constitution to just leave it to each state... As between the two options, I certainly prefer the states deciding these constitutional questions and I don't mean just the one you raised. I mean all the ones that fall in that gray area of whether or not the federal government can do it. If it is a gray area, the federal government shouldn't be able to do it."

Cuccinelli became nationally known for his lawsuit against Obamacare, and he took a forceful stand against federal tort reform last fall in an opinion piece and during the Republican Presidential debates.

I'm thankful that my state's Attorney General understands the proper role for federal power and won't hesitate to defend our rights in court.

Other Republicans have compromised their self-proclaimed "Constitutional conservative" status by pushing to federalize tort law and calling for a constitutional amendment banning gay marriage, even though most states have already done so through election referenda.

Rep. Michele Bachmann exposed her hypocrisy over states' rights, simultaneously slamming Obamacare while pushing federal medmal limits.

Cuccinelli nailed her on it during a debate, but Rep. Bachmann remains an undaunted flip-flopper on states' rights.

Rick Perry, Rick Santorum, and Rep. Bachmann failed to grasp their own inconsistencies on these issues during the campaign, while Ron Paul remained a true constitutional conservative on all three issues.

A constitutional amendment to define marriage isn't necessary unless the federal judiciary overrsteps the limits of its authority and crushes states' authority over marriage law.

Overstepping constitutional limits brings political consequences. Voters no longer trust Democrats who insist that they can force us to buy a commercial product such as private health insurance, and we want the Supreme Court to declare the mandate unconstitutional.

But Americans also won't easily trust Republicans who proclaim their allegiance to the Constitution and the Bill of Rights, then sell out to business interests in the heat of political campaigns by pushing for tort reform.

Gay marriage advocates who try to shove their interpretation of the Constitution down our throats also face a real backlash from a public sick of excessive federal power in areas reserved for local control.

UPDATE, May 19: I discussed this in a radio interview on the "What's Up" radio program, hosted by Terry Lowry and broadcast on Sirius Satellite Radio and on 12 FM radio stations. You can listen to Segment 1 here and to Segment 2 here.

I'm happy to see fellow Catholics wade into the public policy arena and inject our Church's teachings on moral responsibility and social justice into the debate on legislation. I haven't done so explicitly here, but my faith underlies much of what I write on the need to protect the right to a civil jury trial for religious liberty and pro-life lawsuits.

So when Rep. Paul Ryan said in an interview that the Catholic principle of subsidiarity underlies some of his proposals in the FY 2013 federal budget, I respected his attempt as a sincerely personal application of our common faith. Obviously, other Catholics, including the U.S. Conference of Catholic Bishops, disagree with him on the application of that principle, but I'm glad we're having the discussion on that plane.

But if Rep. Ryan seriously believes, as he said in the interview, that subsidiarity "is really federalism, meaning government closest to the people governs best," then he must apply it consistently. And that requires that he remove any current reference to federal limits on medical malpractice lawsuits, including caps on noneconomic damages, from his budget proposals. Rep. Ryan's favorite legal experts on federalism have been writing for over a year that federal limits on civil suits are as unconstitutional an infringement on states' and individual rights as the individual mandate in Obamacare. If, as one conservative commentator says, "A humane government is one that leaves decisions closest to the people," then surely the regulation of state courtrooms is not a matter for Congress to decide. The budget proposed by the conservative House Republican Study Committee doesn't include any federal limits on civil jury trials - I guess that makes it "more Catholic."

And please don't interpret this piece as an implicit acceptance of state-imposed limits on the right to a civil jury trial. I don't believe that the Founding Fathers meant for a right that they called "sacred" and "inviolable" to be limited to civil suits filed in federal courts, while enabling state legislatures to close courtroom doors anytime they see fit. But that's a subject for a different post.

But if Rep. Ryan wants to reflect Catholic social teachings in his proposed budget, then he needs to do so without infringing on that "sacred" and "inviolable" right at the federal level.

It's a stunning betrayal of all those hardworking, pro-Constitution Americans who gave U.S. House Republicans their majority.

That's how Rob Natelson, premier constitutional scholar and past Republican candidate, yesterday described the plan concocted by House GOP leaders to force House Republicans to vote for either a bill crushing states' rights or to affirm a key section of the equally unconstitutional Obamacare health care law. After the House adjourned last week, Speaker Boehner and Majority Leader Cantor announced that they would push Members to vote for H.R. 5, a bill mandating sweeping a federal takeover of all medical malpractice lawsuits. That bill has been on the shelf for months, thanks to strong conservative opposition. So to make it extremely difficult for GOP Congressmen to oppose it now, Boehner and Cantor attached a very attractive Obamacare repeal bill to H.R. 5. The result is the Hobbesian choice as described succinctly by Rob Natelson: If Republicans vote "aye," they get unconstitutional tort reform. If they vote "no," then they're retaining an unconstitutional part of Obamacare.

Mr. Natelson, a former law professor at the University of Montana, has made a national reputation in constitutional scholarship for identifying the early writings and letters of the Founding Fathers. He has been warning Republicans to avoid H.R. 5 for almost a year. Once again, he takes dead aim at it on the Tenth Amendment Center website:

Although promoted as "medical malpractice reform," the measure is actually a big step toward federal control of state court systems. Essentially, it's a lengthy set of mandates telling state and federal judges how to run their own courts whenever they deal with any health-care-related personal injury cases... This measure tells state judges and legislatures what damages they can allow, when they can allow them, how to instruct their juries, what the time period for bringing suit must be, etc. etc. One section beginning with the words "The provisions governing health care lawsuits set forth in this title preempt . . . State law" is given the Orwellian title, "State Flexibility and Protection of States' Rights."

Mr. Natelson's new blast at the plan to push H.R. 5 was joined yesterday by Prof. Ilya Somin of the George Mason Law School, who criticized House leaders on the legal blog, "Volokh Conspiracy."

"It is indeed true that I have argued that federally mandated tort reform is both constitutionally suspect and largely unnecessary, because interjurisdictional competition gives states strong incentives to reign in their tort lawsuits on their own, as many have already done. House Republicans' support for federal tort reform calls into question the genuineness of the GOP's commitment to respecting constitutional limits on federal power."

Mr. Natelson also slams the hypocrisy of the House GOP leaders for basing their plan to take over state courts on the same constitutional justification as Obamacare:

"How do its sponsors justify this under the Constitution? The same way the national health care zealots justify Obamacare: The Constitution gives Congress power to regulate interstate commerce, so Congress may regulate everything that "affects" commerce, presumably including breathing. Of course, this justification is bogus. When the Constitution was being debated, its supporters emphasized that personal injury law within state boundaries would be a state concern. And although the modern Supreme Court has smudged constitutional boundaries a good deal, it has never authorized congressional micro-meddling of state judicial systems. On the contrary, the Supreme Court has ruled repeatedly that states and state courts are constitutionally free of most federal 'commandeering.'

These two respected conservative scholars join the National Conference of State Legislators in opposing H.R. 5.

NOTE: In his post, Prof. Somin comments on my characterization of his positions in my post yesterday about Ted Frank's and Walter Olson's positions on H.R. 5. I certainly did not intend to refer incorrectly to Prof. Somin and have amended that post accordingly.

I've traded Tweets this morning with Ted Frank of the Manhattan Institute and is a leading critic of civil litigation, about his position on H.R. 5, the bill mandating limits on awards in medical malpractice lawsuits. With House leadership intent on forcing a floor vote on H.R. 5 next week, I want to remind everyone what Mr. Frank and Walter Olson, another esteemed member of the anti-civil litigation movement, wrote last year about H.R. 5.

On May 22 of last year, Prof. Ilya Somin of George Mason Law School, a noted libertarian and anti-Obamacare scholar, concurred with Prof. Randy Barnett's view that H.R. 5 is an unconstitutional infringement on states' rights and inconsistent with Republican opposition to Obamacare. "Hopefully, at least some Republican conservatives will begin to see that you can't advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other." (CORRECTION, March 15: Prof. Somin is a libertarian and has never been in the "anti-trial lawyer" camp and I apologize for any confusion. I include his views in this post to establish the timeline.)

The next day, Ted Frank wrote his concurrence with that view. Quote: "It's easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care. It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform."

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

I'm not taking anyone's words out of context. I truly respect Messrs. Frank and Olson for their views, even as I disagree with them. I'm just quoting two of the bright shining lights in the "tort reform" movement. each of whom are clearly opposed to H.R. 5 in its current form. House leadership should take note.

UPDATE: As I was posting the above, Mr. Frank wrote a new post on H.R. 5 on his blog (which I recommend to anyone interested in legal policy), and I'll quote in full below:

"HR 5, federal regulation of medical malpractice litigation, represents good public policy that would reduce abusive lawsuits and improve health outcomes. But since it would transfer wealth away from lawyers to patients and doctors, the litigation lobby has actively opposed it, and quoted me out of context in that regard. One would certainly prefer that HR 5 be tweaked to unambiguously comply with a vision of the Commerce Clause consistent with, say, the Randy Barnett view. It would be painless to do so. For example, one could structure the legislation to withhold 25% of Medicare funds from states that fail to meet certain medical malpractice litigation standards, rather than federalizing what is (unlike, say, product liability or consumer class actions) largely a local issue: the end result would be even better than this bill. And states that have already implemented reform might be legitimately offended that the benefits of their foresight will be blunted when Congress shunts competing states along; one solution to that might be to limit the reforms to patients who use federally-subsidized medicine, such as Medicare, Medicaid, or PPACA exchanges. But given trial lawyer support for an administration that has propounded PPACA, the trial lawyer opposition to this bill on Commerce Clause grounds is totally disingenuous. Let's see the trial bar lobby for repeal of PPACA, and then they can legitimately complain about HR 5's federalism issues. (Of course, as a political matter, this is largely counting angels on the heads of pins: Harry Reid will never permit this to come to a vote in the Senate, and even if it passed the Senate, Barack Obama would veto this on behalf of his trial-lawyer friends.)"

Four points in response: First, Mr. Frank is still clearly uncomfortable with H.R. 5 in its current form. Second, I wouldn't consider the changes that he proposes to be mere "tweaks," and I'll bet the bill's sponsors and supporters wouldn't either. Third, the trial lawyers' lobby (my clients) didn't lobby for the enactment of Obamacare and supports principled conservatives in the Republican Party every day, and my longtime readers know that I HATE OBAMACARE, mostly because it's as unconstitutional as H.R. 5. Fourth, a House bill's chances in the Senate are irrelevant; something like 90% of House-passed bills never get a Senate floor vote. That's no reason for the House to pass an unconstitutional bill.

I appreciate Mr. Frank's post and will update this post accordingly.

For months, it appeared that House Republicans had largely agreed with conservatives and libertarians such as Virginia Attorney General Ken Cuccinelli; Randy Barnett; Senators Tom Coburn and Mike Lee; Tea Party movement leaders such as Judson Phillips and numerous House Republicans that federal tort reform bills violate the states' rights under the 10th Amendment to run their own legal systems without federal interference. There has been no floor action on H.R. 5, a bill mandating federal limits on awards in medical malpractice lawsuits and the subject of numerous posts on this website.

But last Friday, after the House adjourned for ten days, House Republican leadership reportedly decided to attach H.R. 5 to the bipartisan bill repealing the Independent Payment Advisory Panel (IPAB), a key staple of ObamaCare, with a floor vote as early as next week. Here's a reminder of the lineup against H.R. 5: Prof. Randy Barnett stands against both ObamaCare and federal tort reform, referring to pro-H.R. 5 Republicans as fair-weather federalists and FINOs ("Federalists In Name Only"). Prof. John Baker, a Federalist Society superstar, wrote last year that a vote for H.R. 5 would weaken the anti-ObamaCare legal argument before the Supreme Court. And Virginia Attorney General Ken Cuccinelli promised to sue against a federal tort reform bill even quicker than he sued against ObamaCare. Sen. Tom Coburn has told me personally that if the federal government is going to take over state tort law, there's no reason to even have states, and he opposed federal tort reform in an interview last year. Sen. Mike Lee refused to vote for the Senate Republican jobs bill precisely because it included a version of H.R. 5. State legislators warned Congress last year against mandating federal medmal limits. Other conservative politicians and leading intellectuals against H.R. 5 include Reps. Ron Paul, Ted Poe, John Duncan, Lee Terry, and Morgan Griffith; and Walter Olson, Ted Frank, Rob Natelson, Carrie Severino and Ilya Somin.

The upper echelon of conservative and libertarian legal theorists know that neither tort law nor health care are enumerated powers for the federal government in the Constitution. The pro-medmal law crowd abuses the Commerce Clause, as well as the Necessary and Proper Clause, as much as ObamaCare proponents. Yet House Republican leadership unilaterally decided, behind closed doors in the oak-panelled, leather-appointed chambers of the Capitol, to blast away at states' and individual rights. This cannot stand. Real constitutional conservatives should contact their Representatives immediately and oppose this assault on the Constitution and the Bill of Rights.

There is ONE bill in the House that take's Iran's funds stored in a U.S. account and reserves them to compensate Iran's American terrorism victims. H.R. 4070 is sponsored by Rep. Bob Turner (R-NY) and supported by Members of both parties. Iranian terrorists killed 241 of our servicemen, and injured hundreds more, in the 1983 bombing of the Marine Corps barracks in Beirut, Lebanon. For years, the 1300 survivors and families of those killed have sought justice in American courts for that attack, and were awarded a judgment in federal court of over $2.6 billion against Iran. Their attorneys then identified and attached an account of $1.8 billion in Iranian central bank funds in a bank in NYC to satisfy that judgment. Then the families of the servicemen killed in the 1996 Iranian bombing of the Khobar Towers in Saudi Arabia won a judgment and now stand to share in that account. But without special legislation, the order freezing the funds could be lifted, possibly enabling Iran to recover the money. This morning, the Beirut Marine families issued a press release urging House Members to co-sponsor and pass H.R. 4070. Lynn Smith Derbyshire, whose brother was killed in the barracks bombing and is now national spokesperson for the Beirut Marine families, says, "The Government of Iran will continue to do everything it can to hurt Americans. We see no reason to enable Tehran's campaign of terror. Allowing the Iranian Government to get this frozen money back would do just that." The bill is similar to language inserted into the Senate version of the Iran sanctions bill, now numbered S. 2101, which was approved by the Senate Banking Committee on February 2 and awaits Senate floor action.

No other bill before the House actually takes Iran's money and reserves it for Iran's American victims. The Beirut Marine families are urging House Members to co-sponsor H.R. 4070 and bring it to the floor quickly.

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 Founding Fathers built a civil justice system designed to protect the God-given, unalienable right of all Americans to present their claims before a local jury. That right was enunciated centuries ago by Moses, when he decreed that a man whose property is damaged by a neighbor's actions is entitled to punitive damages. That right to civil justice was protected by Article 39 of the Magna Carta, sealed in 1215, when English peasants forced King john to recognize God-given rights to self-government. That right was protected by our Founders in the 7th Amendment to the Constitution, introduced by James Madison during the first Congress, along with the other amendments in the Bill of Rights.

The Founders didn't limit the exercise of that God-given right to certain causes or to one group of citizens over another group of citizens. As the shackles of racism and sexism were removed, all Americans were eventually afforded that right to seek justice before a jury for their claims. So trespass cases, medical malpractice claims, property rights claims, and lawsuits to protect religious liberty under the First Amendment are equal under the Constitution and Bill of Rights, just as each so if is equal in the eyes of God.

Today on the nationally syndicated What's Up broadcast on Sirius Channel 131 and 12 radio stations, I discussed the fight for religious liberty brewing over the Obama Administration's "compromise" on the mandate for insurers to provide contraceptives, some of which act as abortifacients. Those of us who own a business and are faithful to the teachings of the Catholic Church, and non-Catholic business owners whose religious convictions oppose abortion, will find it impossible to reconcile that mandate with our religious convictions. Eventually, we might have to seek justice, and prevent the imposition of that mandate, by filing suit in federal court. In so doing, we would follow in the footsteps of our forefathers who sought protection from excessive power wielded by the sovereign, through an appeal in the halls of civil justice. Regardless of anyone's views on the underlying issues, all Americans should respect the conscientious objections to certain types of medical services, and all Americans should respect the constitutionally protected right to defend such objections in a court of law.

You can download my audio interview from the What's Up program:
Segment 1
Segment 2

I've written often about the interviews conducted by Terry Lowry on his radio show, the What's Up show, broadcast on 12 radio stations from Houston to Chattanooga to Pittsburgh. I'm pleased to announce that this pro-7th Amendment broadcast, by a noted social conservative and Christian broadcaster, is now also heard on Sirius satellite radio on Channel 131, Family Talk Radio. Now the entire nation can hear periodic reports on civil justice issues and a defense of the Founding Fathers' plan for open courtrooms for all types of cases, from medical malpractice and defective products to religious liberty, property rights and other personal rights. The interviews are also available for downloading from the What's Up home page.

Terry interviewed me for today's broadcast, and we discussed recent congressional action to assist property rights owners, victims of forced abortions, and American victims of Iranian terrorism by enabling their lawsuits. I noted the inconsistency between the protection by many Congressmen of those groups' 7th Amendment rights and the attacks by some of the same Congressmen on medical malpractice lawsuits. As I noted, the Founders built a civil justice system to enable Americans to have their civil suits heard before juries in all types of cases. The Founders didn't differentiate between lawsuits to protect property rights and medmal claims, and neither should Congress. See my post of January 25 on the reasons for Republicans and Tea Partiers to support open courtrooms for all.

You can download listen to the first interview segment here and to the second interview segment here.

The history of the soft alliance between trial lawyers and pro-lifers has never been given the attention it deserves by pro-life Republicans. The Founding Fathers warned repeatedly against entrusting bureaucrats with decisions that belong in the hands of a local jury. Trial lawyers serve the pro-life cause by challenging FDA decisions to approve dangerous medical devices and drugs taken as birth control by women. History has shown the FDA is too often influenced by political forces and by the industry it seeks to regulate, and the FDA cannot always be trusted to keep unsafe drugs and medical devices off the market. When the FDA approves unsafe products, or allows dangerous products to stay on the market, lawsuits by injured patients are often the last line of defense to provide protection to innocent victims. Civil suits forced many of these dangerous drugs and devices off the market, while the FDA did nothing. Here are some examples.

The Dalkon Shield IUD was implanted in an estimated 2.5 million women from January 1971 through June 1974 before it was taken off the market, thanks to civil litigation brought by injured women. At the time, medical devices were not required to receive pre-market approval from the Food and Drug Administration. Approximately 200,000 women claimed they were injured by the device and filed lawsuits against the company. The Dalkon Shield IUD often became imbedded in the uterus, and the multifilament tail string on the device became a vehicle for bacteria. As a result, women wearing the shield were seven times more likely to develop pelvic infections than women using no contraceptives. There were over 200 documented cases of a rare, potentially lethal type of infected miscarriage called spontaneous septic abortion. Twenty women died of complications associated with the Dalkon Shield. The dangers of the Dalkon Shield were not revealed until the first device lawsuit went to trial in 1974, where the public found out that the IUD's manufacturer knew about the life-threatening risks of the device but withheld this information.

Meanwhile, thanks to aggressive marketing efforts, about 10 million women in the U.S. used the Copper-7 IUD between 1974 and 1986. By 1986, hundreds of lawsuits were filed claiming that the Copper-7 caused pelvic inflammatory diseases, ectopic pregnancies, perforated uteruses and sterility. As a result, the Copper-7 was taken off the market, solely because of the lawsuits brought against the manufacturers. But the FDA never withdrew its approval of the Copper-7.

RU-486 was never tested in uncontrolled trials or tested for use by women under 18, despite being approved for any age. By approving RU-486, the FDA also mandated a previously unapproved use of misprostol over the objections of its manufacturer Searle, who originally created misprostol to reduce the risk of ulcers. According to 9,300 pages of documents uncovered by Judicial Watch, standard procedural and scientific requirements were circumvented during the expedited FDA approval of RU-486 in 2000. A host of pro-life organizations, including the American Association of Pro-Life Obstetric Gynecologists and the Christian Medical Association, have opposed RU-486 from its testing period to today.

The Ortho Evra transdermal birth control patch was approved by the FDA in 2002 as a supposedly safe alternative to the birth control pill - this despite the FDA's own pre-approval findings that the patch led to three times as many non-fatal blood clots. This FDA finding was kept quiet as women switched over to the patch - by 2004, 800,000 women were on the patch. A 2005 FOIA request finally revealed that the FDA had received 16,000 different adverse reaction reports associated with the patch, including 17 deaths that appeared to be clot-related. The women who died included Kathleen Thoren, a 25-year-old mother of three; Sasha Webber, a 25-year-old mother of two; and Zakiya Kennedy, an 18-year-old Manhattan fashion student. Ortho Evra's manufacturer waited until 2006 to warn women that the patch would expose them to the possibility of blood clots. Worse still, FDA kept that information quiet in 2002 when it approved the patch. Lawsuits continue against the company.

Norplant was introduced in 1991, and women began noticing that Norplant's label inadequately warned about severe side effects like excessive menstrual bleeding, headaches, nausea, dizziness, and depression. In a complaint filed against Norplant's manufacturer Wyeth-Ayerst, women who used the system suffered significant weight gain, felt numbness and pain in their arms (where the silicone rods were implanted), and experienced excessive bleeding for two
weeks. Many of these women also experienced great difficulty exiting from the Norplant protocol - some women became scarred after having to undergo surgery under a general anesthetic to remove the implants. In 1999, Wyeth-Ayerst agreed to pay out at least $50 million to settle the claims of 36,000 women. The American Life League maintains a Norplant page on its website, explaining its qualities and the testing deficiencies.

Last year, the FDA approved the pill "Ella," a product of the French maker HRA Pharma, which reduces the chance of pregnancy up to five days after sex. The pro-life Family Research Council claims that Ella blocks progesterone receptor proteins, and thereby starves a developing baby of this needed protein, much like RU-486. FRC cites numerous studies in Europe that show "that Ella causes abortions in animals, including rats, rabbits, guinea pigs and macaques (similar to monkeys)."

And FRC says that "there is compelling reason to believe that it (Ella) will likely have similar side effects" as RU-486, such as "excessive bleeding and increase(d) vulnerability to infection." In other words, trial lawyers exercising the 7th Amendment right to a jury trial for civil suits may have to ride to the rescue of the women who will be harmed by Ella, just as they have with respect to other devices and drugs dangerous to women.

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.

Lawmakers who voted last year for an unconstitutional bill to crush states' and individual rights, by sharply limiting medical malpractice lawsuits, did a 180-degree turn on Tuesday, approving a federal bill to enable lawsuits against abusive eminent domain actions by local governments.

The House Judiciary Committee voted to approve H.R. 1433, titled The Private Property Rights Protection Act. Co-sponsored by a bipartisan group of Representatives including many Republicans the bill is aimed at stopping municipalities from condemning private property for private land development. The bill was inspired in part by the case of a group of homeowners in Long Beach, New Jersey, who successfully fought the city's efforts to take their homes and allow developers to make millions building upscale condos. Section 4 of the bill creates a private right of action to fight local eminent domain actions.

It's too bad the committee Republicans aren't as committed to protecing our lives from the impact of deadly medical errors by negligent health care personnel. Many of the Republicans voting for H.R. 1433 also voted last year to crush most medical malpractice lawsuits, as provided for in H.R. 5. That bill imposes caps on noneconomic damages, which would eliminate an incentive for lawsuits filed by the elderly and infirm. That bill would tell states how to manage their courtrooms and mandate a wage scale for the attoneys filing the cases, the only federally imposed wage scale approved by any set of Republicans.

It's ridiculously inconsistent for the Republican co-sponsors of H.R. 1433 to also co-sponsor H.R. 5. The two bills couldn't be more contradictory in intent, spirit, and basis in American Constitutional law. House Judciary Republicans should think twice before placing a higher value on property rights than on human life.

On Thursday, the Arkansas Supreme Court voiced its support for the unalienable right to a civil jury trial by striking down a section of the state tort reform law. In the medical malpractice case of Teresa Broussard v. St. Edward Mercy Medical Center, the court ruled that sections of the law establishing standards for medical witness testimony were an unconstitutional infringement on the court's authority to decide witness qualifications. Chief Justice Jim Hanna upheld the court's right to determine the constitutionality of a state medical malpractice law and protected the court's sole authority to determine witness qualifications. He also reiterated a section of Arkansas law stipulating that the trial court "always has the inherent authority to secure the fair trial rights of litigants before it."

It wasn't the first time the court voided part of the state "Civil Justice Reform Act of 2003" and protected the rights of plaintiffs. Late last year, the court ruled that the section of that law capping punitive damages was unconstitutional, and in 2009, ruled that sections of the law limiting evidence of medical costs and allowing defendants to reduce their liability by naming "non-parties at fault" were unconstitutional for the same reason.

Let's hope other state supreme courts follow the Arkansas court's lead in protecting the right to a civil jury trial, and then take it a step further by striking down all onerous limitations on the right to a jury trial for civil suits.

The Discovery Institute is a conservative think tank headquartered in Seattle, Washington, dedicated to "the reinvigoration of traditional Western principles and institutions and the worldview from which they issued." The Institute has a special focus, to emphasize "the role that science and technology play in our culture and how they can advance free markets, illuminate public policy and support the theistic foundations of the West."

The Institute is now highlighting a religious discrimination lawsuit brought by a former employee of NASA's Jet Propulsion Laboratory (JPL). David Coppedge was a 14-year veteran and the senior member of the JPL team that oversees computers for NASA's mission to send a satellite to Saturn, one of the most complicated in its history. He is also a fervent Christian and believer in the "intelligent design" theory of history, which contrasts with Darwin's theory of evolution, and he manages a website on creationism.

Over the course of a decade, Coppedge periodically discussed "intelligent design" with co-workers and offered them DVDs on the subject. Then, in March 2009, Coppedge's manager ordered him to stop "pushing religion," which resulted in an argument between the two, with Coppedge finally agreeing to halt such discussions. A month later, JPL suddenly demoted Coppedge and warned him that he had violated the ethics policy. Coppedge filed a discrimination suit against JPL in Los Angeles. JPL responded to the lawsuit by firing Coppedge. Mr. Coppedge is being defended by attorney William J. Becker Jr., who is supported by the Alliance Defense Fund, the outstanding group defending religious liberty across America.

On November 18, a Los Angeles County Superior Court judge ruled Friday that Mr. Coppedge is entitled to exercise his 7th Amendment right to a civil jury trial against the JPL. In an interview on the nationally syndicated 'What's Up' radio program, Discovery's legal affairs policy analyst, Joshua Youngkin, explained to host Terry Lowry the "very significant point" of the judge's ruling:

"The jury and not the judge will determine whether or not David Coppedge had his rights infringed. And that's a very important right that we all cherish."

As Terry Lowry pointed out, the right to a trial by jury was listed in the Declaration of Independence above the right to bear arms. Whether you believe in "intelligent design" or the Darwin theory of evolution is irrelevant. Every American is entitled to assert, before a local jury of peers, whether adverse employment actions were the result of religious discrimination. Americans who want to "tort-reform" away cases involving medical malpractice with damage caps and procedural hurdles rarely stop to think whether the tort reformers would then turn against other rights protected in the Bill of Rights.

You can listen to the pertinent portion of Terry Lowry's interview of Joshua Youngkin on the "What's Up" program by downloading this short podcast.

During a speech on November 11 at the national convention of the Federalist Society, Republican Senator Mike Lee of Utah discussed why he could not vote for the jobs bill proposed by Senate Republican leadership (he voted "present"), even though it included many economic growth proposals with which he agreed. The Senator made it clear that he would have trouble voting for any federal tort reform bill, because most such bills inherently override states' rights. Here is a transcript of the pertinent section of that speech:

I had a situation just yesterday in which members of my party put forward a proposal consisting of a lot of bills rolled together. I agreed with almost all of them. Almost all of them achieved some favorable policy objective. But there was one with which I fundamentally disagreed; not because it was bad policy, but because it was utterly reconcilable with principles of federalism to which I took an oath. There was one portion of this Republican jobs package that would have told state courts, applying state law, reviewing state causes of action, that they were subject to certain limits, all in the name of interstate commerce; all because these things, like everything else, have a substantial effect on interstate commerce. I wanted to vote for the bill. Were I a member of the state legislature in the State of Utah, I would have voted for that kind of tort reform. But I couldn't do it, because it's not within my power. It was painful not to be able to vote in favor of that bill, but sometimes we have to do painful things, even when they undercut our underlying policy interests. In other words, just as textualism and originalism need to be protected and preserved, they need to be followed religiously so that they don't come under fire, and correctly as I believe, as simple tools to bring about a conservative philosophical revolution of sorts, we in the political branches of government who are dyed-in-the-wool advocates of federalism need to stick to federalism. Federalism is the answer, not just because it leads to right results, but because it is the right result, and it is the law. (Emphasis mine.)

Senator Lee's comments were met with applause by the audience, who obviously recognized and approved of his steadfast allegiance to constitutional principles.

During questioning by the audience, Senator Lee conceded that Congress could enact "some medical malpractice reforms" for federal suits brought in federal courts under federal law, or if such a bill is tied to "the provision of medical services with federal funds." But the federal tort reform bills being pushed by the AMA and other medical groups are straightforward, head-on, bills to crush states' and individual rights in health care-related lawsuits. Personally, I don't foresee Republicans proposing a bill to limit Medicare or Medicaid recipients' right to civil litigation, because of the political backlash it would generate.

Senator Lee's courageous vote on that bill and his statement in his speech place him squarely among the many Republicans and Tea Party-side conservatives who have come to recognize the unconstitutionality of federal tort reform bills. That growing list includes Virginia Attorney General Ken Cuccinelli; constitutional law expert Rob Natelson of the Independence Institute; Professor Randy Barnett; Tea Party movement leaders Judson Phillips and Mark Meckler; and many others, including critics of the plaintiffs' bar, all of whom insist on upholding the Constitution and Bill of Rights over political objectives. They've found, as Rob Natelson has detailed in his new study, that the Founding Fathers clearly and specifically did not want state tort law and state courts pre-empted or overruled by Congress through federal tort reform.

You can watch Senator Lee's entire speech below; scroll to the 20-minute mark to hear him discuss this issue.

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.

Over a year ago, I first posted an open bet with an offer to buy the winner the best dinner in Washington, DC. I've re-posted that twice, and want to renew the bet now, because no one has even tried to win the bet. Here it is:

If anyone shows me ONE, just ONE quote from any of the Founding Fathers that is pro-"tort reform," I'll buy you the best dinner in Washington, DC, with your choice of appetizer, entree, wine (2 glasses only, $50/bottle max) and dessert. After researching the Founders' quotes on the subject for months (see the links in the right sidebar on the home page), I'm supremely confident that I have nothing to fear. For purposes of this offer, I'm defining the term "Founding Fathers" based on a list at this website, which includes signers of the Declaration of Independence, the Constitution, and other notable figures from the founding of the United States.

I would value this dinner at roughly $200 but I'm not limiting the offer to that amount. Go ahead, make my day!

Tomorrow, the House Foreign Affairs Committee will hold a hearing titled, "Righting the Enduring Wrongs of the Holocaust: Insurance Accountability and Rail Justice," to examine the facts and circumstances underlying two bills. First, H.R. 890, the Holocaust Insurance Accountability Act, would allow Holocaust survivors to rely upon state laws so they can have their day in court. It also requires the European insurance companies to disclose Nazi-era insurance policy information, and establishes a federal right of action to recover proceeds due under the covered policies. Second, H.R. 1193, the Holocaust Rail Justice Act, would prevent the French national rail company SCNF from claiming foreign sovereign immunity in a class action law suit brought against them by Holocaust survivors. SNCF trains transported 76,000 individuals to concentration camps during the Holocaust.

A group of Holocaust survivors sued SNCF in 2001, arguing that the company knew of and should be liable for the horrid conditions Jews were forced to endure on their way to Nazi death camps. The company has argued in court that it is an arm of the French government and therefore immune from suit under the Foreign Sovereign Immunities Act, but the plaintiffs claim that it is a separate entity. The Supreme Court sided with SCNF and dismissed the lawsuit under the FSIA; H.R. 1193 would strip SCNF of any FSIA immunity and enable the plaintiffs to reinstate the case.

Both bills have broad bipartisan support. The committee chairman, Rep. Ileana Ros-Lehtinen (R-FL), is the original sponsor of H.R. 890 and a co-sponsor of H.R. 1193, and has always supported the 7th Amendment rights of Holocaust survivors. In 2010, while supporting the Holocaust Insurance Accountability Act, Rep. Ros-Lehtinen said, "Holocaust survivors, just like anyone else, should have the right to have their day in court to recover under their policies... It is not in the interests of the United States to deny survivors their legal rights." That's the kind of pro-7th Amendment sentiment we need more of in Congress.

This afternoon, the House Judiciary Committee is holding a hearing on ''The State of Religious Liberty in America.'' Among the witnesses will be Colby May, Director and Senior Counsel of the Washington office of the American Center for Law and Justice (ACLJ), one of the premier pro-religious liberty groups in America. Colby May goes to court all the time to protect religious liberty, taking advantage of the 7th Amendment rights protected by the Founding Fathers to enable Americans to exercise our faith without infringement by the federal or state governments. His testimony recognizes that, ''The courts and the judges that preside over them will largely determine the strength of America's religious liberties.'' And he is testifying about the recent instances in which courts have failed to protect our rights against a college administrator, such as has happened at the University of California in the Christian Legal Society v. Martinez case.

I hope Members and witnesses remember that to survive, religious liberty needs open courtrooms. Any measure to restrict the ability of Americans to file a lawsuit in court compromises our ability to defend our religious liberty. So, for instance, the Judiciary Committee's original bill to toughen sanctions against attorneys under the Federal Rules of Civil Procedure could have resulted in a nonprofit's or small-sized law firm's refusal to take on a religious liberty lawsuit because of potential attorney sanctions. That's why the committee added a rule of construction to exempt lawsuits over constitutional issues from application of the proposed sanctions. Similarly, the application of the Supreme Court's decisions in the Iqbal and Twombly cases could result in the dismissal of a religious liberty case that would otherwise proceed to the discovery, if the attorney can't provide the threshhold level of documentation needed to meet the stricter pleading standards enunciated by the Court in those cases. A plaintiff seeking to protect religious liberty rights against an overbearing college or business might find it difficult to meet the standards if witnesses to the behavior at issue are afraid to come forward without a subpoena.

The Founding Fathers didn't differentiate between lawsuits to protect constitutional rights and lawsuits for negligence; they designed the civil justice system for all causes. The "tort rerform" movement could continue to spark conflict with social conservatives over the access to civil justice, unless Americans tell Congress and state legislatures to keep courtroom doors opened.

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