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.