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September 17 is "Constitution Day" to commemorate the decision on September 17, 1787, of the Constitutional Convention in Philadelphia to approve the U.S. Constitution and send it to the states for ratification. Some delegates to that convention insisted on amending the Constitution to enunciate and protect individual rights, including the right to a jury trial for civil suits, and the Seventh Amendment was the eventual result. To educate the public on that constitutional right, the Let America Know website and newsletter, initiated several years ago to mount a grassroots campaign to defend Seventh Amendment rights, interviewed me about trends in proposed tort reform legislation in Washington and forced arbitration issues.

I discussed the shift in federal tort reform efforts by the business community from the 30-year effort to impose nationwide limits on damages in civil suits to (a) "Loser Pays" (or "fee-shifting") amendments, especially in bills amending environmental law; and (b) vigorous opposition to any bill to end pre-dispute forced arbitration clauses in consumer contracts. I addressed the unforeseen consequences of Loser Pays rules, which could include limiting the ability of social conservative groups and small businesses. And forced arbitration clauses are buried in our agreements with our bank, cell phone company, or car dealer, and drafted by the company to dilute our right to hold it accountable. Forced arbitration clauses drive valid disagreements towards a secret, company-dictated process with no procedural safeguards, no right to appeal and little chance of success by the individual consumer. Americans need more Reality Checks, like this one from a Cincinnati TV station, about the forced arbitration clauses that the Supreme Court has okayed to help businesses avoid legal accountability and responsibility.

In the interview, I discussed one special bill introduced in Congress to enable our servicemembers overseas to avoid forced arbitration that could result in judgments against them while they're in the battlefield. The last thing a Marine or Navy Seal waging war on terrorists should worry about is an apartment landlord using a forced arbitration clause to evict the soldier. The SCRA Rights Protection Act, a bipartisan bill in both houses, would amend the Servicemembers Civil Relief Act of 2003 to enable servicemembers to void such clauses. Sadly, certain elements of the business community are quietly waging a lobbying campaign to kill the bill. Please contact your Congressman and Senator and urge support of this bill!

You can listen to my interview on the LAK website. As the LAK editors state, we need the right to a jury trial for civil suits holds corporations accountable for their actions. If corporations want to be treated as "persons" under the First Amendment for campaign finance purposes, then they should be subject to a jury of our peers in accordance with the Seventh Amendment, with our being "tort reformed" out of court through artificial caps on damages, Loser Pays rules or forced arbitration clauses.

A Democratic Senator and a Republican Congressman have demanded, in separate hearings with General Motors executives, that GM drop its claim in federal bankruptcy court of civil immunity for injuries suffered from defects prior to the filing. GM's lawyers have recently asserted that in its 2009 bankruptcy filing, the sale of its assets to the government-backed "New GM" results in protection from liability arising from safety defects occurring before the filing, a claim which would prevent victims from exercising their constitutional rights to compensation.

During a hearing on the GM defects issues of the Senate Commerce Committee on July 17, Sen. Richard Blumenthal (D-CT) asked GM General Counsel Michael Millikin whether GM would drop that claim. After trying to duck the question, Millikin replied, "We will not."

That follows the questioning of GM President Mary Barra by Rep. Morgan Griffith (R-VA) on June 18 during a hearing of the House Energy and Commerce Committee. You can see that segment of the hearing on Rep. Griffith's YouTube page. He asked, "Ms. Barra - why are your lawyers still trying to seek protection in the bankruptcy court?" She refused to agree to drop the claim of immunity filed in bankruptcy court.

After the hearing, Rep. Griffith issued a statement with this: "GM may be entitled to bankruptcy protection, but don't tell us that you are going to take care of victims while simultaneously seeking a shield from the bankruptcy court from those same victims and their families. If GM truly wants to fully and fairly compensate everyone that's been harmed as a result of safety defect issues, GM's lawyers ought to stop asking the bankruptcy court for protection, and let these matters work their way through the normal channels."

Sen. Blumenthal and Rep. Griffith were experienced attorneys prior to entering public service, and Sen. Blumenthal officially represented the people of Connecticut as the state Attorney General. Here we have bipartisan agreement, from a conservative Republican and liberal Democrat no less, that the Americans who suffered from GM's dangerously defective cars should be entitled to exercise their constitutional right to bring their claims before a jury without GM hiding behind a change in corporate form. These two men realize that the civil justice system designed by the Founding Fathers is the appropriate forum for GM's victims to seek compensation. Hats off to them.

Today is a special day in the history of democracy and jurisprudence, the 799th anniversary of the sealing of the Magna Carta by King John at Runnymede in England on June 15, 1215. The document required King John to proclaim certain individual liberties, and accept that his will was not arbitrary, for example by explicitly accepting that no "freeman" (in the sense of non-serf) could be punished except through the law of the land. The Wikipedia entry describes it as "the first document forced onto an English King by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their privileges." Constitutional scholar Rob Natelson of the Independence Institute was invited to write the entry on the Magna Carta for the limited-edition Encyclopedia of the U.S. Supreme Court. He told me that he considers the Magna Carta as "Probably the greatest Anglo-American legal document of all." It's certainly the charter for modern democracy, the basis for eight centuries of British and American law (copied around the world), and the foundation for the U.S. Constitution and the Bill of Rights. The colonies in Virginia, Massachusetts, and Maryland especially sought to reflect various points of the Magna Carta in their early charters and laws. In 1957, the American Bar Association acknowledged the debt that American law and constitutionalism owed to the Magna Carta by erecting a monument at Runnymede.

British jurist Sir William Blackstone organized the 1215 version into numbered articles. Article 39 of the Magna Carta can be translated as, No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. It is this article that establishes and protects the right to a trial by local jury in criminal and civil cases, to protect all other individual liberties from the power of centralized government. The Founding Fathers studied the Magna Carta and knew the many instances in which the British had deprived them of their right. John Adams referred to it as "that fundamental law" when opposing the Stamp Act of 1765, and the deprivation of jury trials was among the grievances listed in the Declaration of Independence. George Mason, who refused to sign the Constitution because it didn't explicitly protect individual rights and the prerogatives of states, drew upon it for his writings, which eventually led to the enactment of the Bill of Rights.

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

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.

On Friday, March 21st, Regent University School of Law in Virginia Beach, VA, will hold what might be the first conference in years (if ever) to discuss the potential for the incorporation of the Seventh Amendment right to civil jury trials to the states as a fundamental right. The conference is under the direction of Regent Law Prof. David Wagner, who has had a long successful career in teaching and in Washington policy circles. The other panelists so far are Prof. Paul Finkelman of Albany University Law School, a nationally recognized expert on constitutional law and constitutional history, and Sean P. Tracey of the Tracey Law Firm in Houston. I've already highlighted some of Prof. Wagner's pro-Seventh work; he previously wrote the first pro-civil juries piece in years in a mainstream conservative magazine (for The Weekly Standard), and wrote blog posts last year opposing federal medical malpractice limits and the House-passed patent reform bill with "loser pays."

Gun-rights advocates fought for forty years for the Supreme Court to recognize the Second Amendment as a fundamental right, and that is where Seventh Amendment advocates must head. That is the only way to guarantee the God-given right that the Founder cherished so much in the Constitution and Bill of Rights, even over the right to vote. Whether it takes four, fourteen or forty years, we have to start someplace. That's why we need to hold events like the Unity Summit, which starts today, and the Regent University conference.

I hope readers in the Norfolk-Virginia Beach area will be able to attend the conference, which begins at 6 pm in Robertson Hall at Regent Law School.


Readers in the Southeast, especially in or near Jackson, MS, have a special opportunity to learn more about our Seventh Amendment right to a civil jury trial and how the Seventh Amendment supports the First and Second Amendments. On March 13 and 14, lawyers and legislators from around U.S. will come together at "The Unity Summit" to inform and educate all citizens interested in understanding and protecting our God-given and constitutionally protected rights. The Unity Summit will focus on our First Amendment rights of free speech and free exercise of religion, Second Amendment right to own and bear arms, and Seventh Amendment right to a civil trial by jury. Nationally known speakers will present and debate current issues such as the impact of the Affordable Care Act and IRS scrutiny of nonprofit organizations on First Amendment rights; the debate over the Second Amendment rights of students on college campuses; and the erosion of Seventh Amendment rights due to compulsory arbitration clauses in cell phone, car and other consumer contracts. You'll hear the Founding Fathers' own quotes on the importance of the civil jury trial to the very existence of democracy and the current legal trends, many of them unpublicized by the Mainstream Media, that threaten Seventh Amendment rights. And you'll be inspired by the service and sacrifice of a Iraq War veteran in a special presentation.

Every American of any political persuasion who cherishes the Constitution and Bill of Rights and wants a "deep dive" into current legal and political issues will benefit from attending the Unity Summit. You can register for it here. And please "Like" the Unity Summit Facebook page and send it and the website link to friends and followers.

It's always great to find another Reagan Conservative who cherishes the Founders' ideal of civil jury trials, as protected by the 7th Amendment to the Constitution, and to see that support in a mainstream conservative publication. Like me, Prof. David Wagner of Regent University Law School was a political appointee in the Reagan Administration who later served as a counsel for House Republicans on a congressional committee. And Prof. Wagner, who teaches constitutional law and other subjects, knows the rich history of the 7th Amendment. He wrote about the importance of civil juries in the January 20 issue of The Weekly Standard in an article titled, "Who Loves a Jury? The Framers of the Constitution, that's who." It might be the first pro-civil jury piece in a mainstream conservative publication in many years. An excerpt:

"It seems the civil jury can't get no respect.

Although it's conservatives who most often make the case against civil justice excesses, the downgrading of juries in popular respect marks a huge, though almost unnoticed, divide between this generation and the Framers.

Ask most people today what is the most direct way they participate in government. They will probably say voting. And yes, the right to vote is in the constitutional text, although something of a latecomer, in various forms in the 14th, 15th, 19th, 23rd, and 26th Amendments.

But 81 years before the right to vote made its first appearance in the Constitution, the jury right in criminal cases was already included in the unamended Constitution (Article III, Section 2, paragraph 3), as it came from the Philadelphia Convention. But the convention declined to extend this right to civil cases. This alone lost the Constitution the votes of George Mason and Elbridge Gerry, and got the ball rolling on the movement for a Bill of Rights, either as a condition of ratification (constitutional opponents lost on that), or as a top item of business when the new government convened (they won on that; politicians kept promises in those days). And so a guarantee of jury trial in civil cases became the 7th Amendment.

In fact, 3 of the first 10 amendments mention juries: We have grand juries in the 5th, criminal petit juries in the 6th, and civil juries in the 7th. For comparison, the right to vote is nowhere mentioned in the Bill of Rights. A latecomer, as I said...

At first the Bill of Rights was binding only on the federal government, and to this day the 7th Amendment remains one of the provisions in the Bill of Rights that the Supreme Court has not fully applied to the states. The reason? No apparent need: The states themselves guarantee the civil jury right, and have done so since the Founding. Northwestern's Steven Calabresi and his fellow legal scholars have recently found that 12 of the original 13 states, representing about three-fourths of the population of the new United States of America, had civil jury provisions in their state constitutions at the time of the Founding, second only to provisions for the free exercise of religion."

Prof. Wagner has some concerns about flaws that he sees in the civil litigation process, but he warns against limiting the civil jury trial. "The civil litigation system is flawed along several fissures; juries are not the only ones, or the worst. Above all, they have countervailing, decisive civic, and constitutional benefits. At least our Framers, after debating the issue, came to that conclusion, and we are unwise to ignore their counsel." And he's criticized bills proposed in Congress to nationally limit medical malpractice damages.

Here's hoping more of my fellow conservatives realize the wisdom of the Founders and protect civil jury trials.

House Speaker John Boehner announced last week that House Republicans would decide on an Obamacare alternative health care plan to bring to the House floor for a vote. The Republican Establishment in D.C. is pushing a plan drafted by Republican doctors serving in the House, one section of which imposes federal medical malpractice limits to help... DOCTORS - not patients. Last year, the Republican doctors took over the task of drafting a health care plan for the House Republican Study Committee, a group of conservative Members that used to protect states' rights in its proposals and avoided proposals for a federal takeover of health care and state tort law. As I've written many times here, the legal experts who crafted the litigation strategy against Obamacare and advise House Republicans on the Constitution say that federal medmal limits of the type in the RSC bill are unconstitutional and accuse the GOP of being "FINOs - Federalists in Name Only." Rob Natelson, probably the chief legal expert in the growing movement for an Article V convention to reassert federalism principles, criticized the federal medmal caps section in the RSC bill in October. It's worth remembering that the Supreme Court agreed with Rob Natelson, Randy Barnett, and other anti-Obamacare experts in its 2012 decision on Obamacare that the law isn't a valid exercise of Congress' authority under the Commerce Clause.

Republican-side health care experts who accurately predicted Obamacare's failures and are advising House Republicans on an alternative don't favor federal medical malpractice limits either. Some recognize the conflict with the party's stated goal of protecting states' rights, and others know it really doesn't save much in health care costs (see my post here for examples). Here are some of the numerous plans - truly conservative, actually market-based alternatives - that House Republicans should consider to avoid the Cronyist, anti-federalism landmine in the RSC bill:

James Capretta & Kevin Dayaratna, Compelling evidence makes the case for a market-driven health care system on the AEI website;

Avik Roy, Obamacare - The End of the Beginning on National Review Online;

James Capretta and Yuval Levin, Unwinding Obamacare published in The Weekly Standard;

Thomas P. Miller, Conservative health care reform - A reality check and The end of Obamacare - Just the beginning of better health care both also on the AEI website;

The Heritage Foundation, After Repeal of Obamacare: Moving to Patient-Centered, Market-Based Health Care ; and

Rep. Paul Broun, M.D. (R-GA), H.R. 2900, the Patient OPTION Act

SEVEN conservative, market-based health care plans, all with great ideas, none with unconstitutional, hypocritical, cronyist federal medical malpractice limits. Let's hope House Republicans act according to principle.

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.

Two more movement conservatives have examined the new healthcare bill proposed by some House Republicans and oppose the section mandating federal limits on medical liability.

Ramesh Ponnuru, respected conservative author and columnist at National Review, wrote about the bill on Bloomberg. While he approves of many of the proposals in the bill as a replacement for Obamacare, he opposes the federal medical malpractice limits in the bill.

"And medical malpractice reform, as popular as it is among Republicans, shouldn't be done at the federal level. Medical torts have traditionally been regulated by states, and states have the incentive to set their policies on it the right way -- because their residents will pay the price if they don't."

This isn't the first time Ponnuru has opposed federal medmal caps; he's a consistent federalist. After Pres. Obama mentioned the idea in the 2011 State of the Union speech, Ponnuru dismissed it in two sentences: "Great: President Obama is open to one of the Republicans' crummiest ideas. There's no need for a federal takeover of medical-malpractice rules." (Emphasis added.)

Judson Phillips, founder of Tea Party Nation, continued his consistent defense of Constitutional rights in a post about the bill. His comments:

"With great fanfare, the Republican Study Committee unveiled a new plan yesterday to repeal Obamacare with "The American Health Care Reform Act."  One of the sections of the bill is designed to kill the bill.

That section is Title V of the bill, which is called "Reforming Medical Liability Law."  Translating that into plain English, it is tort reform

Under this section, the Federal Government will take control of state court systems and tell states what limits are imposed on medical malpractice lawsuits.

This law is bad on a number of fronts.  First, it shreds the Seventh Amendment of the Constitution. The Tenth Amendment of the Constitution specifies that the powers not given to the Federal Government are reserved to the states.  Tort law has always been reserved to the states.  This is just another federal power grab, this time authored by Republicans

The bill repeats the old claim that lawsuits are driving up the cost of medical care.  Texas has thoroughly disproved that theory.  Texas imposed draconian medical malpractice reform and what happened?  Medical costs have not dropped but if a doctor commits malpractice on you, good luck getting a lawyer to sue.  It is now almost impossible to get a lawyer to take a medical malpractice case in Texas."

He discussed the issue on the Mark McCaig Show, broadcast on Houston radio station KNTH AM1070 - here is the link to the podcast.

On the tenth anniversary of the enactment of "tort reform" in Texas that dramatically limited damages in medical malpractice lawsuits, Gov. Rick Perry was shocked that anyone could doubt the law's success. "I'm just continually surprised that some people still want to argue that tort reform didn't work." That's because Gov. Perry is only looking at the impact on doctors. He doesn't care about the impact on patients or the millions of other Texans

Doctors in Texas now have lower medmal insurance premiums to pay and face sharply reduced risks of being held accountable for their negligence. The doctors are doing just fine.

The patients? Not so good. The cap on damages and new expert-witness rules sharply reduced the ability of a law firm to handle a medmal case for years, fronting the costs of preparation and litigation, and to find an expert who would qualify as a witness in court. Lawyers are simply turning away many cases that might have been filed prior to 2003.

Moreover, the basic promises of the proponents of the medmal limits have never been met. They promised more access to health care, more doctors, and lower health care costs. But an objective study by respected academicians show no positive impact on the number of doctors. Even a leading critic of the plaintiffs' bar declared that he would no longer claim that the Texas law increased doctor supply.

And even the most fervent supporters of the Texas medmal law won't claim that it bent the healthcare cost curve. Their costs haven't stopped climbing at all. The doctors just pocketed the savings in insurance premiums.

And worst of all, the doctors' reduced risk of malpractice liability means Texans are at higher risk of suffering from deadly medical errors. Doctors moving into Texas didn't have to worry about extensive background checks, because the state licensing board didn't bother to conduct them for years.

All this led a nationwide Tea Party leader, Judson Phillips of Tea Party Nation, to slam the Texas tort reform myth and warn Americans that we risk losing precious rights protected by the 7th Amendment.

All this is lost on Rick Perry. But of course we already know that he's not very good and recognizing and remembering facts, don't we?

Jenny Beth Martin, President and Co-Founder of the powerful Tea Party Patriots group, is planning a massive anti-Obamacare rally on September 10 in Washington. She's trying to persuade House Republicans to defund Obamacare in any way possible, including in a debt ceiling bill or continuing resolution to fund the government. Speaker Boehner and House Republican leaders have another idea for health care "reform," and it would actually protect the doctors and other medical professionals whose lobbyists in DC fought for Obamacare and profit from it.

Speaker Boehner is still hellbent on enacting federal law to protect pro-Obamacare doctors, hospitals, drug and medical device companies and nursing homes from their negligence. Before the August recess, he told House Republicans that he wanted to spend time this fall on "GOP proposals to help end costly junk lawsuits and curb defensive medicine by enacting medical liability reform." That sounds like the caps on lawsuit damages that Boehner supported in a bill he pushed in 2011, when he combined it with an anti-Obamacare bill to ensure approval by the Republican conference.

But Jenny Beth Martin opposed Boehner's bill two years ago to protect pro-Obamacare doctors, because she knew that the bill was an unconstitutional infringement of states' rights.

In a blast email that she sent to followers and to Congress, Martin wrote the following:

The malpractice reform will affect not only federal law but also state law. It would take the authority to create tort law (i.e. medical malpractice) from the state and hand it over the federal government. This is an outright violation of the 10th Amendment...

The malpractice reform contains two components that are troubling. The first is that it is federal malpractice reform, even though tort law is supposed to be made at the state level. Second, not only will it affect federal law but, it goes a step further and overrides existing state law! This brings to light a new unconstitutional overreach by the federal government, violating our core value of constitutionally limited government.

Jenny Beth Martin stands with top libertarian and conservative legal experts such as Randy Barnett, Rob Natelson, John Baker, Ilya Somin and Carrie Severino, and with real Constitutional conservatives such as Reps. Ted Poe and Louis Gohmert and Sen. Mike Lee. She defends states' and individual rights against federal encroachment and Crony Capitalism.

I have no doubt that if Speaker Boehner demands that House Republicans vote again to crush state sovereignty in medical malpractice issues, Jenny Beth Martin will again oppose it.

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.

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.

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

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

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

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

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

Some Members of Congress continued to pursue federal medical liability limits this spring, notably Republican leadership in both houses; Reps. Paul Ryan, Marsha Blackburn and Renee Ellmers; and Sen. Rob. Portman. They ignore the warnings from experts in constitutional law cited often by Republicans, such as Prof. Randy Barnett, Virginia AG Ken Cuccinelli, Prof. Ilya Somin, Rob Natelson, Ted Frank and Walter Olson. The protestations of states' rights advocates such as the National Council of State Legislators; Sens. Tom Coburn and Mike Lee; Reps. Ted Poe and Louis Gohmert; and the leaders of Tea Party Patriots and Tea Party Nation go ignored. Republican experts on health care policy, such as Tom Miller, Jim Capretta and Avik Roy, advised Republicans to pursue measures other than liability limits to improve health care quality or reduce the cost, but the Republicans named above ignored that advice.

All these experts and 10th Amendment advocates have opined that a federal medical liability limit is an excessive use of federal power and now has little chance of surviving scrutiny by the Supreme Court under its rulings on the Commerce Clause and the Necessary & Proper Clause in the Obamacare decision. Nevertheless, Republican House and Senate leaders forced a medical liability limit provision into their budget plans, and did so without committee debate.

A better name for any federal medical liability limit would be the "Dr. Gosnell & Abortion Butchers Civil Protection Act." Almost every such proposal would have the impact of protecting abortion butchers like Dr. Gosnell, now on trial for murder in Philadelphia, from full accountability before a local jury.

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, and the Gosnells of America would be allowed to keep much of the "blood money," if federal limits are imposed. Most medical liability limit proposals would sharply limit non-economic and punitive damages, so butchers such as Gosnell wouldn't feel the full sting of a jury verdict on his assets. And they even protect doctors who commit intentional torts, such as sexual abuse! All this is lost on the politicians who ignorantly repeat whatever the medical lobbies put in front of them.

For John Boehner, Rob Portman and Paul Ryan, medical liability limits are an article of faith to beat trial lawyers over the head. Even though these Republicans are vocally protective of the right to life, they don't stop to think that liability limits are a blank check for butchers like Gosnell.

But I'm really surprised that Republican women in Congress, such as Reps. Blackburn and Ellmers, so thoughtlessly ignore the impact of federal liability limits on women's health. Didn't they read the horrific accounts of the deaths of the born babies and 41-year-old Karnamaya Mongar, who died at Gosnell's hands? Don't they realize the danger of their insensitivity? Why don't they see the value of the civil justice system that the Founders designed, grounded in the 7th Amendment right to a civil jury trial, as a means of punishing dangerously negligent doctors?

If Republican women politicians and their leaders want to avoid being accused of waging a "war on women," they should start by ensuring that deadly doctors, hospitals, nursing homes, and drugs and devices don't receive legal protection from civil liability in federal law.

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.

Here's why real conservatives should oppose the Ryan budget:

1. It maintains the federal leviathan working to control our lives. FACTS: The Ryan budget won't result in the single closure of any sizable federal agency and explicitly avoids layoffs of federal workers. As Roll Call newspaper put it, "Ryan's budget eliminates the deficit in 2023 not because of large new spending cuts relative to his past budgets, but because he's keeping hundreds of billions of dollars a year of President Barack Obama's own budget policies in place." There's nothing "conservative" about using Obama's phony budgeting.

2. The Ryan budget also maintains the Obamacare and fiscal cliff taxes needed to fund Big Uncle Sam. Again, quoting Roll Call, "Ryan's budget also would not balance without the $600 billion-plus increase in taxes extracted by the president in the fiscal cliff deal." What's "conservative" about backing Obama's tax increase?

3. The result of the Ryan spending and tax decisions is that he sacrifices the conservative principle of reducing the role of the federal government for a goal of a balanced budget, which is a numbers exercise (albeit an important one). And that is exactly what happened in the Reagan budgets (I was there) and during the Gingrich era in the 1990s, when we achieved a budget surplus but didn't get Big Uncle Sam out of our lives. Is that what conservatives want?

4. The Ryan budget violates the 10th Amendment and restricts the 7th Amendment right to civil jury trials. It unconstitutionally crushes each state's right to maintain its own civil justice system, by mandating federal limits on damages available in healthcare-related lawsuits. The plan ignores the opinions of the most respected Republican-side and libertarian legal experts and officials who have repeatedly written that Congress has no authority to enact federal caps on medical malpractice lawsuits, especially under the majority opinion in the Supreme Court's Obamacare opinion. These experts include Prof. Randy Barnett; Virginia AG Ken Cuccinelli; legal experts Rob Natelson, John Baker and Carrie Severino; and Reps. Ted Poe, Louie Gohmert and Lee Terry, and Senators Tom Coburn and Mike Lee. The National Conference of State Legislators has always protested federal caps as a violation of the states' right to operate their civil justice systems without federal interference. Tea party leaders such as Judson Phillips and the Tea Party Patriots criticized the passage of caps by the Republican House in the last session of Congress.

5. The same caps do nothing to raise the quality of health care in the U.S., which is why Republican-side healthcare experts don't support federal caps on such lawsuits (e.g., Avik Roy, Jim Capretta and Tom Miller). A recent study by respected academics punctures five myths of medical malpractice, but these realities are ignored by Rep. Ryan and House leadership.

6. The combination of the continued federal presence in the regulatory agencies and the proposed civil immunity for the entire medical community, from doctors to insurance companies to nursing homes, make the Ryan budget a perfect vehicle for Crony Capitalism. Federal bureaucrats will feel free to preempt state laws and restrict individual freedom in all types of settings. There's no effective "STOP" sign on Uncle Sam in the Ryan budget.

Conservatives and Tea Partiers should oppose the Ryan budget. It doesn't promote the conservative vision of a reduced role for the federal government in our lives. It continues to "feed the beast." It infringes on states' and individual rights. It's not a conservative or Tea Party manifesto and should not excite or inspire any conservative, Tea Partier or libertarian. It doesn't project the Founding Fathers' vision for the nation or for a limited government. There's no reason to spill any political blood over it.

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.

Yesterday was the 102nd birthday of Ronald Reagan, the greatest President of my lifetime, to whom I owe personal and professional thanks for my marriage (to one of his White House secretaries) and my Washington career (beginning as a Reagan Administration political appointee). His personally autographed photo congratulating us on our marriage is one of our most cherished possessions.

Almost two years ago, I researched all of his speeches and writings available on the internet to determine whether he would be considered a "constitutional conservative" by today's standards, meaning fidelity to the Bill of Rights, or whether he would stand with today's "Crony Capitalists" who lobby in Washington for special protection in federal law through the preemption of state law or, worse yet, immunity through federal tort reform. Too many politicians who pass themselves off as constitutional conservatives ditch the 7th Amendment right to civil jury trials and side with Crony Capitalists to protect companies they represent.

I then wrote a special post titled, "What Ronald Reagan REALLY Said About Tort Reform," which I re-posted in January of last year. The conclusion of my research is crystal clear.

Ronald Reagan was never for federal tort reform. He never proposed a federal tort reform bill in his State of the Union speeches, budget proposals, nomination acceptance speeches, or major addresses on the economy.

Reagan's silence in the issue is due primarily to his strong belief in the rights of the states and individual, as protected in the Bill of Rights. Reagan understood, better than almost any political figure of our times, the limitations on central power built into the Constitution and fortified by the Bill of Rights. He highlighted his fidelity to federalism in his first Inaugural Address in 1981:

All of us need to be reminded that the federal government did not create the states; the states created the federal government.

And before that, in his 1979 speech announcing his candidacy:

The federal government has taken on functions it was never intended to perform and which it does not perform well. There should be a planned, orderly transfer of such functions to states and communities and a transfer with them of the sources of taxation to pay for them.

That sounds like a constitutional conservative, not a Crony Capitalist. And I remember that Reagan was the presidential candidate for "Main Street Republicans," including the social conservative movement, while John Connolly of Texas was the guy backed by the "Wall Street Republicans."

In the decades in which he addressed public policy issues as a commentator, Governor and President, he addressed the issue of federal tort reform apparently only once, near the end of his Presidency. In remarks he gave in Washington in April 1986, he remained true to his roots, saying, "To be sure, much tort law would remain to be reformed by the 50 States, not the Federal Government. And in our Federal system of government this is only right." That's a man who knows that Uncle Sam's authority is limited to the powers enumerated in the Constitution. Unlike many on the left and right today, Reagan would have had no inconsistency between his opinion on Obamacare and his thoughts on federal tort reform. He would have found both unconstitutional.

Reagan would feel right at home with the Tea Party base of the Republican Party that recognizes and honors the 7th Amendment right to a jury trial for civil suits. He would have stood with legal scholars Randy Barnett and Rob Natelson; Senators Tom Coburn and Mike Lee; and Virginia Attorney General Ken Cuccinelli against the takeover of state tort law by the feds. I have to believe that anyone proposing sweeping preemption of the states' rights to protect citizens and manage courtrooms would've drawn severe skepticism or outright opposition by President Reagan.

So thank you, Ronald Reagan, for your vigorous defense of personal and states' rights, and for so much more.

Conservatives love the 2nd Amendment. The 7th Amendment? Not so much. But the funny thing is, the 7th Amendment could be what saves the 2nd Amendment... If seven million gun owners each individually filed lawsuits along with a request for a restraining order keeping the Obama Regime from imposing whatever gun control it has in mind, numbers alone dictate that some of these lawsuits will land in front of judges that support the 2nd Amendment.

Judson Phillips, Tea Party Nation, January 12

Judson Phillips, the Founder of the Tea Party Nation group, knows and defends each amendment in the Bill of Rights. He knows that the Founding Fathers based the civil justice system on an "inviolate" right to a jury trial for civil suits in order to place real power in the hands of local jurors, not the sovereign. The Founders created one civil justice system and protected civil jury trials under the 7th Amendment for all causes and cases, from the protection of gun rights (2nd Amendment) and religious liberty (1st Amendment) and property rights from an activist central government, to the defense of economic rights exploited in the free market, through lawsuits for defective products and medical malpractice.

Real conservatives need to defend each and every God-given right enumerated in the Bill of Rights, and fight to maintain the limits on central power inherent in the Constitution. The Supreme Court ruling in the Obamacare decision made it clear that the Commerce Clause doesn't authorize federal encroachment into local health care decisions, a ruling clearly applicable to most civil justice issues and tort law.

I discussed these issues recently on the syndicated What's Up radio show, hosted by Christian conservative Terry Lowry and broadcast on various radio stations around the country. You can download the podcast of my interview from the What's Up website at this link (mp3 file). I noted that the Bill of Rights is not a menu that we can just pick and choose from, like we do at a restaurant. Liberals who love civil jury trials for their causes need to protect our right to bear arms, and conservatives need to protect the right to civil jury trials from crony capitalists who would abridge our right to a civil jury trial through "tort reform." I added that neither God nor the Founding Fathers makes anyone in the healthcare industry so special as to be worthy of immunity from civil suits and accountability for their 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.

Politicians in the state of New York want to cap the number of bullets in a clip or magazine, by law, from 10 to 7. Such a law would immediately transform all sorts of legally owned handguns into illegal firearms, and the owners into felons. Think the criminals will care about that cap, or will they just use an illegally modified clip to ensure they have enough to shoot as many innocent people as they want? How's that cap going to stop criminals? And what clause in the Constitution and Bill of Rights gives politicians the power to do that to us?

It's as unworkable an idea as mandating a cap on the number and type of words a blogger or journalist can use in a post or article. As one attorney put it recently, "Would you have the right of freedom of speech if that speech were limited to a certain vocabulary - say 500 words? Or even 350,000 words?.. If one is artificially limited in the words you can speak, then how does one have true freedom of speech?"

Too many Americans who claim to base their political decisions on the Constitution and Bill of Rights fold like a paper airplane when push comes to shove. Too many of us pick our founding documents apart to choose which of the limits on power in the Constitution, or which of the ten amendments in the Bill of Rights, we back at any given moment.

On no issue is that conflict more obvious than proposals to cap civil damages for medical malpractice or for broader health care-related lawsuits. First and Second Amendment absolutists ignore the right to a jury trial for civil suits, protected under the Seventh Amendment, at a moment's notice. Some politicians are so inconsistent that they back civil suits for all types of causes, such as excessive eminent domain actions or to protect religious liberty, but flip on a dime to close courthouse doors to Americans injured or killed by medical negligence.

Who made doctors, hospitals, drug companies, nursing homes and insurance companies so special? Certainly not the Founding Fathers. Not many Supreme Court Justices, or state Supreme Court justices, or modern constitutional conservatives and libertarians.

But some Missouri Republicans don't get it. Even though their own state Constitution makes the right to a civil jury trial "inviolate," a term used in many state constitutions, some there want to reinstate caps after the state Supreme Court ruled a Missouri cap law unconstitutional. Apparently, "inviolate" means one thing when it comes to freedom of religion and the right to bear arms, and something less when it comes to jury trials in Missouri.

Pro-cap legislators claim that only caps will prevent increases in health care costs. But the state caps haven't stopped health care costs from rising in Missouri, any more than caps in Texas have held down costs there. According to the Center for Medicare Services at H.H.S., health care spending per capita rose at an average of 5.1 percent each year from 2004 through 2009, during which caps were in effect.

First and Second Amendment advocates who want to strip us of the right to a civil jury trial should remember that a jury of peers is the Founding Fathers' way of protecting those other cherished rights. Or, as Judson Phillips of Tea Party Nation puts it, we need to use the Seventh Amendment to save the Second Amendment.

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

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

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

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

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

"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." -- Thomas Jefferson to Thomas Paine

"By a declaration of rights I mean one which shall stipulate freedom of religion, freedom of the press, trial by juries in all cases..." -- Thomas Jefferson to Alexander Donald

"The civil jury is a valuable safeguard to liberty." -- Alexander Hamilton

"In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." -- James Madison

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

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

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

(3) Last but not least, G-O-D. Yes, God Almighty decreed that humans, his creation, have the right to hold each other accountable at law. Attorney Thomas Methvin of the Beasley Allen firm in Montgomery, Alabama published a comprehensive paper, Trial Lawyers And The Biblical Basis For What We Do, and he discussed it on the air on April 21. As Mr. Methvin wrote, the Bible speaks early and often about the duties to avoid committing negligence, paying damages for harm to property, and even paying punitive damages. For instance:

And if a man shall open a pit, or if a man shall dig a pit, and not cover it, and an ox or an ass fall therein; The owner of the pit shall make it good, and give money unto the owner of them; and the dead beast shall be his. (Exodus 21:33-34)

For all manner of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing, which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbour. (Exodus 22:9)

If a man shall cause a field or vineyard to be eaten, and shall put in his beast, and shall feed in another man's field; of the best of his own field, and of the best of his own vineyard, shall he make restitution. (Exodus 22:5)

Do not deny justice to your poor people in their lawsuits. (Exodus 23:6)

The Lord takes his place in court. He is the great prosecuting attorney, presenting his case against his people! The leaders and the princes will be the first to feel the Lord's judgment. (Isaiah 3:13-15)

Seek justice, encourage the oppressed. Defend the cause of the fatherless, plead the case of the widow. (Isaiah 1:17)

Mr. Methvin's paper presents more details on the civil justice system established for the Israelites in the law of Moses. He also sets out a Biblical basis for the professional trial lawyer, for instance in Psalm 106:3, Blessed are they who maintain justice, who constantly do what is right.

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

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.

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

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

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

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

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

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.

Catholic churches and Catholic-based social services groups have filed lawsuits throughtout America to defend religious liberty from President Obama's mandate to pay for abortion-inducing, baby-killing drugs, in violation of official Church teachings. 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 Catholic-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.

All this is lost on Obama, who apparently sees his mission as telling the churches and all of the religions in the U.S. how to operate or face closure. Now he has created, out of thin air, a new constitutional standard for religious liberty. In an interview with a New Orleans TV station, Obama said it's "not fair" for the Catholic Church to deny abortion-inducing, baby-killing drugs to its employees. Somehow this former professor of Constitutional law thinks that he can dictate a Fairness Doctrine on Catholics and any other church in America. Where did he make this up?

Our Founding Fathers must be rolling over in their graves. They knew that religious liberty was the reason why many left England, and in the First Amendment they defended the right of all faiths to practice in accordance with their own doctrines. And they practoced what they enshrined in law. The first Catholic Bishop in the U.S., John Carroll, was a close friend of George Washington and sought, at Washington's request, to persuade the French to provide assistance to the colonies seeking freedom from England. And Washington, though not a Catholic, donated the first funds to build the first Catholic church in Alexandria, Virginia, near his home at Mount Vernon.

Fortunately, the Founders created a civil justice system and protected the right to seek justice before a local jury. Many of the Catholic groups have exercised that right, protected under the Seventh Amendment to the Constitution, to ask a local jury to hear their cases. They don't want to entrust their precious, God-given right to a federal judge nominated by any President.

A terrific story in the Wall Street Journal and Congressional testimony by a Republican Lt. Governor depict why health care costs are still soaring and how to bend the curve. And a new study by the Texas Medical Association shows why Texans on Medicare and Medicaid are having trouble accessing quality health care. In neither case is the cost of medical malpractice awards even mentioned, an indication of its actual irrelevance.

The Wall Street Journal story, "The Crushing Cost of Care," describes several real cases in which a 41-year-old who needed a heart transplant suffered so many complications that he became "one of the most expensive Americans on Medicare." It presents some simple facts about the cause of rising health care costs:

A sliver of the sickest patients account for the majority of U.S. health-care spending. In 2009, the top 10% of Medicare beneficiaries who received hospital care accounted for 64% of the program's hospital spending, the Journal's analysis found.

As for Medicare's long-term cost trajectory, it is relentlessly upward. The program's net expenditures totaled $486 billion last year, according to the Congressional Budget Office, or 13.5% of all federal expenditures. In March, the CBO projected that Medicare expenditures would grow an average of 5.7% per year through 2022 and equal 16.2% of all federal outlays.

Medicare patients rack up disproportionate costs in the final year of life. In 2009, 6.6% of the people who received hospital care died. Those 1.6 million people accounted for 22.3% of total hospital expenditures, the Journal's analysis shows.

Notably, the costliest patients aren't necessarily the oldest, even though Medicare mainly cares for people 65 or older. Of the top 10 costliest people on Medicare in 2009, eight were on disability, including Mr. Crawford. Disability is the main way people under 65 qualify for Medicare.

The medical personnel appear to have done everything they could, and nowhere in the article is either medical malpractice, or awards in medical malpractice lawsuits, discussed as an issue in soaring Medicare/Medicaid costs.

Testimony today by the Republican Lt. Governor of Kansas, who is also a practicing surgeon, also points to soaring Medicare & Medicaid costs as a primary driver in the overall cost of health care. Lt. Gov. Jeffrey Collyer, M.D., testified before a U.S. House subcommittee on the impact of Obamacare on doctors and patients. Dr. Collyer summarized the cost curve prior to his taking office with a new Republican Governor in 2011:

From 2002-2008, Kansas Medicaid spending grew 33 percent, while enrollment increased 25 percent. This growth occurred as Kansas tax revenues remained strong. Since then, Kansas' Medicaid budget has ballooned from $2.4 billion in 2008, at the onset of federally mandated "maintenance of effort" requirements, to what will reach nearly $3 billion in 2013 without reforms.

He then described the steps taken to bend the cost curve and remake Medicaid, without cutting anyone off. Projected savings will be over $1 billion, and the reforms even added new services.

The Lt. Governor recommended nine innovations to enable states to remake their own Medicaid systems. None of the steps involve closing courthouse doors to victims of medical malpractice.

In Texas, a new survey of doctors by the Texas Medical Association shows that an increasing number are refusing to take on new patients who depend on Medicare and Medicaid. The TMA blames the "government regulatory burdens, red tape, payment hassles, and low pay" that result from accepting Medicare and Medicaid reimbursements. The real victims are theose Texans who can least afford it. "Hardest hit are low-income Texans who rely on Medicaid for their care. Texas physicians available to treat new Medicaid patients have plummeted from 42 percent in 2010 to 31 percent -- an all-time low."

Nowhere in the press release does the TMA claim that doctors' fear of medical malpractice awards in other cases is a factor in their refusing to take on new Medicare/Medicaid patients. That's not a surprise, given that recent studies show that the Texas law limiting medmal awards has neither reduced the increase in health care costs or improved access to health care.

A great trial lawyer and Founding Father, John Adams, is credited with saying, "Facts are hard things." The debate over tort reform is driven far too often by myths, not hard facts. It's time for those pushing an unconstitutional, one-size-fits-all, federal solution to see the facts behind the rise in health care costs and stop using medical malpractice as a convenient punching bag.

In my opinion, the single biggest problem with the Republican Party today is that its leaders claim to represent the cause of limited government, or "constitutional conservatism," but either don't know what that really means or hypocritically ignore its meaning to advance an "un-conservative" political agenda. The Obamacare decision by the Supreme Court revealed an incredible disconnect between the claims of top Beltway Republicans and their stands on the specific use of federal power to limit states' and personal rights. House Republican leaders such as Speaker Boehner and Reps. Hensarling and Price toss out "medmal limits" as a response to Obamacare, mindless of the constitutional inconsistency.

And where is Mitt Romney on this issue? Well, he's been confused for a long time and remains so. It's no surprise that Tea Partiers had such a tough time accepting his winning the Republican Presidential nomination, because his record is anything but "constitutionally conservative."

As Governor, Mitt Romney pushed through tort reform measures with caps on damages, and he's continued to push tort reform as a panacea for rising health care costs and poor economic growth. The attached Word file documents the numerous instances in which he called for state and federal medmal limits prior to starting his current campaign.

Romney is full of contradictions in his own recent statements on federal interference in health care. I wrote on June 13 that in a speech billed as a "major health care speech," Romney pledged to uphold and protect the 10th Amendment in all of his health care policy decisions. Moreover, he didn't call for federal medmal limits.

However, on the 'Health Care section of his campaign website he proposes to "Cap non-economic damages in medical malpractice lawsuits." Never mind that it follows a section proposing to "Restore State Leadership and Flexibility."

That's not all. In the 'Regulation' section, he proposes to "Reform legal liability system to prevent spurious litigation."

So it looks pretty clear that Mitt Romney is for federal tort reform, with little regard for states' rights.

If Romney is going to "believe in the 10th Amendment," as he says, maybe he needs a short refresher course in its meaning and history. The Founding Fathers clearly intended for Americans to take their civil suits before a local jury of their peers, and they never differentiated between economic claims (i.e., personal injury) and non-economic claims (i.e., free speech and property rights). They did so from long before independence from Britain through the great debates over the ratification of the Constitution and then the Bill of Rights. In 1765, John Adams condemned the British for abrogating the right to a civil jury trial through a provision in the Stamp Act. Constitutional scholar Rob Natelson has documented the texts in the pre-Revolutionary pamphlets and pre-Constitution ratification debates indicating the dedication of the Founders to preserving state sovereignty over civil law, including the right to trials by jury. And in her award-winning book, Ratification: The People Debate the Constitution, 1787-1788, historian Pauline Maier documents the ratification debates over the right to a civil jury trial in Pennsylvania, Connecticut and Virginia. The Founders added the 10th Amendment as a rule of construction to steer future generations away from imposing on state sovereignty and personal liberty.

There can be no debate over the intent of the Founders. Summarizing them, Rob Natelson wrote, "The effort to impose federal control over state courts and state civil justice violates one of the core principles of our federal system: That most judicial matters are local. Keeping courts and procedures local is, in fact, a crucial protection for individual liberty."

Romney and Beltway Republicans either don't know of these writings or don't care. Instead, many Republicans have taken the position that the Constitution itself, through the Commerce Clause and the Necessary & Proper Clause, enables Congress to override state tort law and direct state courtrooms how to hear claims over medical malpractice.

Not only did the Obamacare decision not support that theory, I assert (without rebuttal thus far) that Justice Roberts' opinion makes it much more likely that this Supreme Court would rule against federal tort reform laws. Current constitutional scholars, including the leading anti-Obamacare legal theorists such as Randy Barnett, Virginia Attorney General Ken Cuccinelli, Ilya Somin and Rob Natelson, have written numerous times that federal tort reform is not a valid exercise of the Commerce and the Necessary & Proper Clauses.

Romney has never proposed a coherent approach to constitutional rights and the limits on federal power. He deserves the skepticism of the real conservatives in his party and of all 7th and 10th Amendment advocates.

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."

Judson Phillips, founder of Tea Party Nation, continuously "gets it." He knows that Obamacare and federal tort reform bills are "the Wickard twins," equally unconstitutional ideas arising from the Supreme Court decision in 1942 that unleashed a runaway Commerce Clause on an unsuspecting American public. States' and individual rights don't have a prayer if we let an unlimited Commerce Clause govern aspects of American life in ways never envisioned by the Founders, starting with health care and tort law. That's why Judson has written and spoken often against federally imposed on caps in medical malpractice cases, such as those proposed in H.R. 5. We've even seen the spectacle of Democrats challenging the states' rights position of Republicans with Judson's own words, for which the pro-H.R. 5 Republicans have no response.

He's at it again in a post on Tea Party Nation, as follows:

If the Republicans are successful in taking the White House and the Senate (they will keep the House), then we will see the next incarnation of attacks on state sovereignty.

That will come in the form of Federal Tort Reform. Some Republicans want to impose Federal Tort Reform on all of the states. Many people have a knee jerk reaction to tort reform. Oh, we don't like the trial lawyers. We don't like lawyers, period. Let's hurt the lawyers.

Since 1787, states have regulated state courts. Since 1787, states have regulated licensed professionals in those states including doctors, lawyers and others. In Federal Court, unless there is a lawsuit governed by a specific federal statute, state law controls the federal courts. Lawyers cannot be admitted to practice before federal courts until they are admitted before the highest court of one of the states.

To allow the Federal Government to impose tort reform on the states wipes out some of the last vestiges of state sovereignty, namely the ability to make its own laws.

State sovereignty has always been the bulwark against they tyranny of a massive federal government. Our founding fathers knew that. That is why they purposefully made the Federal Government weak.

As we hopefully approach the end of the Obamacare Era, either by judicial decision or through an election, Republicans must resist the urge to respond to polls favorable to medmal caps. After all, polls were once favorable to Obamacare, too.

Instead, they should listen to the wisdom of Tea Party-side experts and activists such as Judson Phillips, and avoid any incursion on the Constitution and Bill of Rights.

UPDATE, June 28: Great news on this one: the two most ardent supporters of unconstitutional federal medmal limits, Sen. Barrasso and Rep. Price, dropped out, replaced by Tevi Troy of the Hudson Institute. Read his bio here. I don't know his position on federal medmal bills, but he has to be an improvement. Here's the original post:
Every group in Washington with a stake in the upcoming Obamacare decision is planning a panel or session while it's announced, and the American Enterprise Institute is no exception. But I fear that the its panel might be stacked in favor of supporting unconstitutional federal caps on awards in medical malpractice lawsuits. Here are the advertised participants:

Sen.John Barrasso, Chairman of U.S. Senate Republican Policy Committee (R-Wyo.)
Karlyn Bowman, AEI
James C. Capretta, AEI and Ethics and Public Policy Center
Thomas M. Christina, Ogletree Deakins
Thomas P. Miller, AEI
Rep. Tom Price, Chairman of U.S. House Republican Policy Committee (R-Ga.)

Sen. Barrasso and Rep. Price are doctors and vociferous supporters of federal medmal limits, and have never paid any attention to the constitutional arguments against such a federal law. They've repeatedly ignored the warnings and opinions of Prof. Randy Barnett; VA Attorney General Ken Cuccinelli; other conservative legal superstars such as Carrie Severino, Hans von Spakovsky, Rob Natelson and John Baker; and Republican Members of Congress such as Reps. Ted Poe and Louie Gohmert and Sens. Tom Coburn and Mike Lee. Drs. Barrasso and Price can't cite any current constitutional scholarship for federal medmal limits; they just want to ram it into law in a political power play.

Thomas Christina is a corporate lawyer who has opposed Obamacare in court and in his writings - nothing wrong with that, I'm also opposed - but I find no indication that he understands that Obamacare and federal tort reform are equal "Wickard twins," arising from the expansion of the Commerce Claus after the Wickard v. Filburn decision. Plenty of Republican corporate lawyers oppose Obamacare, then turn right around and fight for federal medmal limits, either not realizing or not caring that tort law is no more an object of federal power under the Constitution than health care. I hope I'm wrong about Mr. Christina.

Ms. Bowman is a renowned expert on public opinion and a top-flight pollster, but she's not an expert in this field.

Messrs. Capretta and Miller offer some hope for balance. I've personally known Jim Capretta for almost 20 years, have discussed these issues with him, and have seen his writings evolve towards a more consistent approach towards federalism. I worked with Tom Miller on several issues while I was Senior Oversight Counsel to the House Financial Services Committee, and he's a consistent federalist. The health care plan plan described in April by Miller, Capretta, and Grace-Marie Turner honors federalist principles by not recommending federal limits on medmal awards.

But no one on the panel has actively worked with constitutional conservatives and Tea Party leaders who know that federal medmal caps are as violative as states' and individual rights as Obamacare, and for the same reasons. Rep. Price is the featured speaker, and he pushes federal medmal limits at every opportunity. Sen. Barasso spoke for caps on the Senate floor last fall when Senate Republican leaders pushed caps as part of a jobs plan. I know from experience that Members of Congress dominate panels such as these, and I suspect that protestations over the unconstitutionality of federal medmal caps will get short shrift. Instead, the AEI panel will be another opportunity to push federal tort reform on an audience of conservative listeners.

"If this law is upheld as constitutional by the Supreme Court, then there's virtually nothing that's beyond Congress's reach, and I think that would be a horrible, horrible precedent for the country."

So said Sen. Mike Lee (R-UT), member of the Senate Judiciary Committee, discussing the potential impact of a Supreme Court ruling affirming the constitutionality of the Obamacare individual mandate. Sen. Lee confirms what I've been trying to tell pro-Obamacare civil justice liberals for almost two years - that if Obamacare wins, federal medmal limits will be considered as more permissible under the Commerce Clause and therefore far more likely to be enacted.

Go look at my Archives, back to my post in January 2011 about Justice Thomas' warning on the unlimited danger of an unlimited Commerce Clause. Look at what anti-Obamacare legal experts such as Randy Barnett, Virginia Attorney General Ken Cuccinelli and John Baker wrote about H.R. 5, the bill to impose federal limits on awards in medical malpractice lawsuits. Read what I wrote in my post titled, Obamacare and Federal Tort Reform, Perfect Together. The theme is the same:

Obamacare and federal medmal limits, and indeed most federal tort reform bills, are based on the same abusive interpretation of the Commerce Clause, to the detriment of states' and individual rights. The Obama Justice Department and the tort reform advocates cite the same landmark Supreme Court ruling, Wickard v. Filburn, for their bills.

So if Obamacare wins, the cause of federal tort reform will advance. If Obamacare wins, courtroom doors around America could close. If Obamacare wins, victims of medical malpractice, defective drugs and devices, nursing home abuse, and deadly hospital errors could eventually see their lawsuits dismissed. Nationwide.

A few groups get this. Constitutional conservatives like Sen. Lee, the legal experts I cited, Tea Party leaders such as Judson Phillips, all get it. They want nothing to do with Obamacare OR federal tort reform.

The medical providers and associations get it too. They pushed Obamacare in Congress under secret deals with the Obama White House and backed it in court. They want millions of new patients, paid for by the rest of us. They push H.R. 5 and other federal tort reform bills because it gives them effective immunity from civil suits.

Pro-Obamacare civil justice liberals don't get it. I've seen post after post, article after article, from those who pledge to protect "justice for all" or whose entire business model depends on open courtrooms, nodding their heads at Obamacare in full bobblehead mode. I shake my head in wonder.

But soon, very soon, the Supreme Court will redefine the meaning of the Commerce Clause in the Obamacare decision. Then one side will win and another will lose, and we'll know more about the limits of federal power.

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.

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