Recently in Quote of the Day Category

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.

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.

What I would do is keep, as we have today, state responsibility for those that are uninsured. You see I believe in the 10th Amendment. I believe the states have responsibility to care for their people in the way they feel best.

So said Mitt Romney, Republican candidate for President, in his most detailed speech on health care policy to date. Speaking in Orlando under a banner announcing, "Repeal & Replace Obamacare," Romney pledged to replace Obamacare in several steps. Most importantly for my purposes, here is what Mitt Romney did and did not do yesterday:

He pledged to uphold and protect the 10th Amendment in all of his health care policy decisions.

He did not criticize Americans for exercising their 7th Amendment right to ask a jury to hold health care professionals responsible for deadly medical errors. He didn't even mention civil suits.

He was not inconsistent or hypocritical with the 10th Amendment by simultaneously proposing to crush states' and individual rights by instituting unconstitutional federal medmal limits.

He did not back the efforts by health care companies, their associations, or their Beltway allies to enact such laws.

He did not promise to reward the pro-Obamacare health care associations, the very groups that shoved Obamacare down our throats through their secret deals and lobbying, with another special deal to immunize them from civil liability.

He did not associate himself with the doctors in Congress who are trying to enact special interest legislation to protect their industry from accountability and responsibility through federal tort reform.

And he did not commit to using a phony CBO estimate of budget "savings" from medical malpractice limits as a way to pay for other budget items.

Now I know that as Massachusetts Governor, Mitt Romney enacted statewide limits on awards in medical malpractice lawsuits.

I also know that his campaign website includes a proposal to "Cap non-economic damages in medical malpractice lawsuits."

SO WHICH MITT ROMNEY WOULD BE PRESIDENT?

Is it the self-proclaimed protector of states' rights? Or is it the former governor who unabashedly closed state courthouse doors to victims of deadly medical errors? Will he convert into a true federalist?

I convert Republicans in Washington into consistent states' rights advocates. I show them what their own favorite constitutional experts say about the unconstitutionality of federal tort reform. I don't have to say much. I've seen it work time and again.

Mitt Romney? We'll see...

"When it comes to the States' tort system, the State court system, it's none of our business unless there is an adequate Federal nexus. That's guided a couple of votes that may have surprised people that I made, but I simply could not support Federal takeover of State tort law."

That was Rep. Louie Gohmert of Texas, who not only talks the talk of limited government under the Constitution and Bill of Rights, but walks the walk. When H.R. 5, the bill to mandate federal limits on awards from all medical malpractice and health care-related lawsuits, was under consideration, he spoke out against it and voted against it on the floor of the U.S. House. Last week, during debate on the defense authorization bill, Rep. Gohmert once again stood up for the rights of states to run their civil justice systems without federal interference from Congress. Here's more from those floor remarks:

"Congress has this power to create the courts, Federal courts. States take care of their own State system. It's one of the reasons, though, that I voted against a couple of bills recently, because medical malpractice reform was being dictated from here in Congress for every State in the country.

I love what Texas did with medical malpractice reform in its State court system, but it's a State court system. I also know that if the Congress decides we need to start dictating to every State what their State court system can or can't do, then when a far more liberal Congress comes in they will be able to say, Look, you so-called "conservative" Republicans dictated to the States what their State tort law should be, so now we're going to dictate to the States what we think it should be, and it ends up being a Federal takeover of something that is entirely a State system."

THAT is a federalist! I hope I have the chance soon to discuss with Rep. Gohmert the latest research on the Texas state medmal law, showing that there was no "hemorrhage of doctors" prior to its imposition and no big increase afterwards. In the meantime, it's great to see this authentic constitutional conservative standing up against the agenda of the medical groups demanding a Washington takeover of state law and a Beltway Cabal that would dictate health care policy from Washington.

"That's beyond my pay grade. That's the speaker. They're the ones doing that coordination."

That's how Rep. Joe Pitts, chairman of a powerful health subcommittee in the U.S. House, described how the House GOP majority is designing its future health care policy.

A small cabal of House GOP Members and leadership staff has recently taken the reins of policy formation away from the rest of the House GOP and the conservative base of the party, and is forcing the Members to accept it, whether it's constitutional or not. And it's not. They're copying what Nancy Pelosi did that drove the GOP nuts when Democrats ran the House.

For almost a year, the House GOP paid attention to constitutional principles and avoided crossing the line by not voting on the House floor for H.R. 5. After all, its finest legal experts wrote time and again that federally imposed limits on medical malpractice lawsuits, especially those imposed in H.R. 5, are an unconstitutional abridgement of states' and unconstitutional rights. And many GOP Congressmen listened.

The lineup against H.R. 5 is full of GOP legal superstars: Anti-Obamacare superstar Professor Randy Barnett, Virginia Attorney General Ken Cuccinelli, Federalist Society superstar Professor John Baker, Rob Natelson of the Tenth Amendment Center, Carrie Severing of the Judicial Crisis Network, Hans von Spakovsky of the Heritage Foundation, Professor Ilya Somin of George Mason Law School, and more. Even Ted Frank and Walter Olson, who sharply criticize the plaintiffs' bar, warned the House GOP that H.R. 5 is a bridge too far.

And important conservative political figures and groups joined them in condemning federal interference in state civil justice systems: Sens. Tom Coburn and Mike Lee, the Tea Party Patriots group, Judson Phillips of Tea Party Nation, the National Conference of State Legislators, the Cato Institute, and Reps. Ted Poe, Louie Gohmert, Lee Terry, Morgan Griffith, and many others.

Then, two months ago, House Speaker Boehner and his close lieutenants put the Tea Party in the rear-view mirror. They intentionally moved away from principles of limited government in the name of "practical politics," in order to gain more support from business interests. The new agenda included a cyber-security bill that raises privacy concerns; the reauthorization of the Export-Import Bank (which really angered conservative leaders); and a heavy push for H.R. 5.

The Beltway Cabal has since made it almost impossible for principled GOP Congressmen to vote for the Constitution and against H.R. 5. First, they announced after the House left town that H.R. 5 would be combined with a very attractive bill to repeal the Obamacare "death panels." Then they fixed the rules so hesitant Members had no opportunity to strip unconstitutional federal medmal limits from that combined bill. When that passed, they shoved H.R. 5 into a budget bill, again with no opportunity for conservatives to vote against it on the House floor.

Both times, GOP Members complained to Speaker Boehner's office that they were being forced to compromise constitutional principles - the very basis of their opposition to Obamacare - to support special interest legislation for the very groups that backed the enactment of Obamacare. Both times, the Speaker and his Beltway Cabal shut that opposition down with no floor debate or vote.

Multiple GOP Congressmen voted with the Constitution the first time, even though it meant not voting against Obamacare. I've been told by individual Members and key staff of "heated" conversations beetween Tea Party-side Republicans and leadership staff, but the Beltway Cabal doesn't care. Dissenting Republicans are afraid of losing committee seats and campaign dollars - just what Democrats who disagreed with Pelosi faced.

The Beltway Cabal consists of no more than a dozen GOP House Members. The Speaker and the other three top Republicans in the GOP Conference; the chairman of the Rules Commitee, which sets the terms of debate for bills in the House; two committee and subcommittee chairmen; and two powerful Congressmen who were doctors and are committed to medmal limits at all costs are running the show. It's "the Pelosi Rules," GOP style.

The message to Tea Party backers and average Americans is that when push comes to shove, the Constitution takes a backseat to Crony Capitalism.

UPDATE, May 22: I discussed this in a radio interview on the "What's Up" radio program, hosted by Terry Lowry and broadcast on Sirius Satellite Radio and on 12 FM radio stations. You can listen to Segment 1 here and to Segment 2 here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The effort to impose federal control over state courts and state civil justice violates one of the core principles of our federal system: That most judicial matters are local. Keeping courts and procedures local is, in fact, a crucial protection for individual liberty.

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

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

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

The Roots of American Judicial Federalism is not Rob Natelson's first foray into the federal medical malpractice debate. In April, he became the first of a long line of conservative and Tea Party-side activists and scholars who oppose federal medmal laws on federalism grounds. In his letter to Congress, he spelled out the constitutionally based objections to H.R. 5, the primary bill desired by the medical groups to limit all health care lawsuits, including those filed for medical malpractice. "H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution's Commerce Power. Yet as I shall explain, its subject-matter--civil actions in federal and state courts--is not within the Constitution's meaning of 'Commerce.' Nor can H.R. 5 be justified under the Necessary and Proper Clause as incidental to the regulation of interstate Commerce."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This spring, Tea Party Patriots co-founder and national coordinator Mark Meckler voiced his opposition to federal tort reform on the grounds that it violates states' rights. "Most folks in the tea party movement would say those things should be dealt with at the state level," Meckler said. "It's not for the federal government to be adjusting the legal system of individual states."

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

In a Washington Post op-ed posted October 28, Virginia Attorney General Ken Cuccinelli promised to file suit in federal court against a federal tort reform bill should it become law. "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)."

Attorney General Cuccinelli strongly objected to S. 197, a bill sponsored in the U.S. Senate by eight Republicans, which would impose caps on awards in health care-related lawsuits and install a federal wage scale for contingent fee attorneys involved in such suits. The bill was slipped into a Senate Republican "jobs bill" in October by Republican leadership without the knowledge or approval of numerous Republican Senators, just to appease the AMA and other medical groups clamoring for special federal protection from civil liability. Attorney General Cuccinelli, a rising star in the conservative community for his lawsuit against ObamaCare and assertive defense of conservative legal positions, emphasized the constitutional right of each state to protect and run its local civil justice system:

"With Senate Bill 197 -- legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award -- several Republican senators have reminded us that federal impositions on states that run contrary to the U.S. Constitution and to the spirit of federalism have never been the sole prerogative of just Democrats. As a state attorney general struggling to hold back a flood of impositions by the Obama administration that violate federal law, the Constitution or both, it is disappointing to see so many Republicans making the same types of mistakes that President Obama and his allies have made...

Senate Bill 197 takes an approach that implies "Washington knows best" while trampling states' authority and the 10th Amendment. 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. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits. How does this sort of constitutional disconnect happen?"

Attorney General Cuccinelli's promise to sue is the most forceful of a series of conservative and Tea Party-side condemnations of the Senate bill and of federal tort reform legislation in general. The libertarian Cato Institute recently announced that caps on medical malpractice lawsuit awards would endanger patients and wouldn't reduce health care costs. The attorney who wrote the Senate Republicans' court brief against ObamaCare, Carrie Severino, publicly urged Republicans to remove S. 197 from the jobs bill before introduction, but they ignored her. Professor Randy Barnett, one of the counsels arguing the key anti-ObamaCare lawsuit in federal court, accused S. 197 backers of being "FINOs" ("Federalists in Name Only"). In May, Professor Barnett accused House Republicans who backed a bill similar to S. 197 of being "fair-weather federalists." Six conservative legal experts, including two who regularly criticize trial lawyers, joined Professor Barnett at that time in characterizing bills to federalize medical malpractice lawsuits as an unconstitutional violation of states' rights. The non-partisan National Conference of State Legislators joined them in a letter to House Republicans against the House bill.

The AMA and its allies in the medical profession have pushed the federal tort reform bills, just as they have backed ObamaCare with its equally unconstitutional individual mandate. For 30 years, they've used their political muscle inside the Beltway, and millions of dollars in political contributions across America, as the way to persuade Congress, especially Republicans, to enact special immunity from civil liability, regardless of the constitutional implications. Republicans will have to ignore the medical profession's misshapen view of Washington as the center of political power in order to protect our constitutional rights. Attorney General Cuccinelli's forceful warning might be the nail in the coffin of the AMA's dreams.

"Reducing physician liability for negligent care by capping court awards, all else equal, will reduce the resources allocated to medical professional liability underwriting and oversight and make many patients worse off. Legislators who see mandatory liability caps as a cost-containment tool should look elsewhere."

That's the conclusion of a new study released by the most respected libertarian think tank in Washington, declaring that capping medical malpractice damages is a very bad idea for consumers, and further declaring that awards in medmal lawsuits aren't excessive compared to actual damages. This study will rock the AMA's world, even as it continues to press Congress for special protection through an unconstitutional limit on awards in all health care-related cases. The study wasn't conducted by trial lawyers or a bunch of liberals, but by an academic for the Cato Institute, which has lots of fans among the new House Republican majority and among the GOP Senate minority.

Read it yourself and send it to your favorite tort reform proponents. Here are selections from the Executive Summary:

Supporters of capping court awards for medical malpractice argue that caps will make health care more affordable. It may not be that simple. First, caps on awards may result in some patients not receiving adequate compensation for injuries they suffer as a result of physician negligence. Second, because caps limit physician liability, they can also mute incentives for physicians to reduce the risk of negligent injuries...

This paper reviews an existing body of work that shows that medical malpractice awards do track actual damages. Furthermore, this paper provides evidence that medical malpractice insurance carriers use various tools to reduce the risk of patient injury, including experience rating of physicians' malpractice premiums. High-risk physicians face higher malpractice insurance premiums than their less-risky peers...

In particular, caps on damages would reduce physicians' and carriers' incentives to keep track of and reduce practice risk. Laws that shield government-employed physicians from malpractice liability eliminate insurance company oversight of physicians working for government agencies...

There's even more in the body of the study, such as:

Some observers are skeptical that medical malpractice awards are the driving force behind excessive tests and procedures, claiming that physicians deliver these services because they are risk-averse, to please patients, or to generate additional income rather than to avoid liability.

Furthermore, defensive medicine is not necessarily undesirable. A well-functioning malpractice system would not eliminate defensive medicine. Rather, it would discourage the use of inefficient defensive medicine, where the expected costs of a test or treatment exceed the expected benefits, and promote efficient defensive medicine, where expected benefits exceed expected costs.

Opponents of damage caps rightly point out that caps shift the costs of malpractice injuries from negligent providers to their victims.

The study recounts the moving story of a tort reform lobbyist who became the victim of his success in capping damages after he had suffered from medical negligence, and later wrote, "Make no mistake, damage caps... remove the only effective deterrent to negligent medical care."

It also slams state medical boards for letting bad doctors continue to practice. "State medical boards do a poor job of informing the public about high-risk physicians, often to the point of protecting those physicians from public scrutiny. Another mark against the state system is that the regulatory apparatus can be manipulated by special interest groups to limit competition through scope-of-practice restrictions."

Every Member of Congress, especially those on the deficit reduction "Supercommittee," should be forced to read this study.

Professor Randy Barnett, co-counsel in the leading lawsuit case against ObamaCare and likely to argue the case before the Supreme Court, takes aim again at federal tort reform proposals in a post on "The Volokh Conspiracy," this time at the inclusion of S. 197 the "MCAP Act' tort reform bill, in the Senate GOP jobs plan released last Thursday. "Over the summer I criticized a House Republican medical malpractice reform as "fair-weather federalism" in this op-ed in the Washington Examiner: Tort reform and the GOP's fair-weather federalism. Now Senate Republicans are emulating their colleagues in the House by including medical malpractice reform as part of their new "jobs" bill. " I've quoted from that piece often here, most recently in my letter to the deficit reduction "supercommittee" considering cuts to future federal spending.

Professor Barnett approvingly quotes from Carrie Severino's post critical of S. 197 on NRO's "Bench Memos" today, and personally criticizes the Senate Republicans: "Yes, you read that right. Senate Republicans are claiming that Congress has power over the judiciary of the states because state courts are an activity that "affect[s] commerce."

He then adds, "With friends like these, constitutional federalism does not need enemies. Can we coin a new pejorative FINO: "Federalists in Name Only"? Oh well, I guess not. But the best thing that can be said about this proposal is that it won't become law."

Let's hope not. I am actually most concerned that pro-tort reformers among the House Republican leadership will ignore the Constitution, transform the Senate GOP plan into a House bill, and force their members into an up-or-down vote as a test of allegiance. Seventh and Tenth Amendment Advocates need to contact the Senate and House and tell them to drop this idea.

An article in today's "Roll Call" newspaper, which covers Congress, discusses the extensive influence that Sen. Tom Coburn has over members of the debt reduction "supercommittee" charged with finding over $1 trillion in federal budget cuts ovr a ten-year period. It appears that Sen. Coburn's own "Back to Black" deficit reduction plan, which he released in July, is the basis for many pollicy proposals under consideration by the supercommittee.

That could be a positive development in the fight to protect each state's right under the 10th Amendment to the Constitution to run their own civil justice systems and each American's right under the 7th Amendment to seek a jury trial for civil suits, including medical malpractice lawsuits. Sen. Coburn's "Back to Black" plan doesn't call for unconstitutional federal tort reform in any way. Instead it relies on the states to manage their own legal systems, and specifically enables any injured patient to take a medical malpractice case to state court. Sen. Coburn also recognizes the terrible toll on patients as a result of deadly medical errors.

Sen. Coburn recommends that the federal government fund expert panels and health courts to resolve medical disputes, ideas implemented in some states and which do not, in practice, always protect a patient's rights. But it preserves the patient's right to access the state court system at any point; the state panels and health courts aren't a mandatory step. The Senator disagreed with federal tort reform solutions on constitutional grounds in an interview posted on June 30, and this plan is consistent with his objection. I'm not endorsing the plan, but at least it protects our constitutional rights from federal "tort reform" efforts.

In contrast, the American Medical Association and numerous medical groups are asking the supercommittee to squash our constitutional rights and grant total immunity to medical professionals from their errors. They sent a letter to the supercommittee that ignores the clear consensus against federal tort reform by respected conservative legal experts such as Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country. Rolling over the Constitution and Bill of Rights is nothing new for the AMA and most of their fellow medical lobbying groups, the co-conspirators in the enactment of ObamaCare, with its equally unconstitutional individual mandate to buy health insurance.

The Founding Fathers' insistence on individual liberty and state sovereignty over their legal systems means nothing to "Big Medicine." They're the walking definition of "Crony Capitalism" for continuously lobbying for national health care with total civil immunity. Limits in the Constitution on the enumerated powers for the federal government, and the 7th and 10th Amendments, are mere bumps in the road for the AMA and their cronies, which wants to interfere in local health care and tort law decisions so they can shape and manage our lives. There's nothing "constitutionally conservative" about federal "tort reform" laws which would ignore the Founding Fathers, shut down local juries, and deprive Americans of our unalienable rights. The supercommittee should reject these blatant attempts by Big Medicine, and instead seek real reductions in the federal deficit.

On September 12, Texas Governor Rick Perry called for federal tort reform during the GOP Presidential debate. "You want to talk about some powerful job creation, tell the trial lawyers to get out of your state and to quit costing businessmen and women. That's what needs to happen in the states. and it's also what needs to happen at the federal level, passing federal tort reform at those federal levels." As I wrote on September 16, Gov. Perry now stands against some of the most respected Tea Party-side and conservative legal experts in America, who have written that a federal tort reform law is as unconstitutional as ObamaCare, and for the same reasons. But Gov. Perry also ignored two of the leading proponents of tort reform, who conceded months ago that a Texas-style national limit on medical malpractice lawsuits is clearly unconstitutional.

Walter Olson of the Cato Institute has been dubbed the "intellectual guru of tort reform." He was previously a senior fellow at the Manhattan Institute, and his writing appears regularly in all of the major newspapers and networks. But on May 24, Mr. Olson wrote that conservative and anti-ObamaCare Professor Randy Barnett of the Georgetown University law Center was right in stating that tort law is strictly a state power and not subject to federal oversight. A short segment of his concession post: "Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems. Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government's constitutionally prescribed powers is it acting? Even if it can identify such authority, it should also ask: is it a wise idea--consistent with what one might call a prudential federalism--to gather yet more power in Washington at the expense of the states? Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court's very expansive "substantial effects" doctrine..."

Ted Frank, Adjunct Fellow with the Center for Legal Policy at the Manhattan Institute, is described by the Wall Street Journal as a "leading tort-reform advocate." He's also the Editor of the pro-tort reform Point of Law blog; president of the Center for Class Action Fairness; has written for law reviews and numerous media outlets; and has testified before Congress multiple times. Mr. Frank is one of the chief theorists and spokepersons for the pro-tort reform movement. But also on May 24, Ted Frank conceded that Prof. Barnett and another conservative and anti-ObamaCare Professor, Ilya Somin of the George Mason University School of Law, were correct in their criticism of a federal tort reform law. Mr. Frank's quote: "It's easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care. It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform."

So the "intellectual guru of tort reform" says that a national, one-size-fits-all law killing medmal lawsuits would have "serious federalism problems," while "a leading tort-reform advocate" says a Texas-style federal medmal law is "impermissible." Between them and the five conservative legal experts, such as Randy Barnett, it looks like the case is closed.

Is Rick Perry listening? Maybe we'll find out during the next GOP Presidential debate on Thursday. Personally, I'm not optimistic, since he ignored the writings of the five conservative legal experts and two pro-tort reform experts on the Internet months before he went nuclear on the subject.

It's remarkable that Texas Governor Rick Perry would call for federal tort reform and ignore the writings of so many highly respected conservative and Tea Party-side constitutional experts. Instead, he's sided with the pro-tort reform community in its reliance on constitutional theory that enables the federal government to trample on individual and states' rights in health care and tort law, issues which the Founding Fathers clearly reserved for the states alone. Ironically, his "federal tort reform" would reward members of health care associations, such as the AMA, AHIP, and the health insurance industry, which were the co-conspirators in the enactment of the Affordable Care Act, a.k.a. ObamaCare, which he promises to repeal. Let's review the legal theories in controversy here and how conservative legal experts have condemned federal tort reform this year.

At the start of the new Congress, pro-tort reform Republicans, led by a "Doctors Caucus" seeking special protection for their industry, introduced a bill, H.R. 5, a bill to impose stringent limits on the damages that victims of medical malpractice and other health care negligence can seek. The limits would apply to all lawsuits in the U.S. against doctors, hospitals, drug and device companies, nursing homes, and the insurance industry. The bill preempts all state laws that provide additional protections to patients.

Rob Natelson, formerly of the University of Montana Law School, is now Senior Fellow at the Independence Institute, a Tea Party-side legal expert and a former Republican candidate in Montana. He was the first expert from "the right side" to criticize H.R. 5, in a letter to Congress in April, and then again in an op-ed piece on May 9. Here are some excerpts from each:

H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution's Commerce Power. Yet as I shall explain, its subject-matter--civil actions in federal and state courts--is not within the Constitution's meaning of "Commerce." Nor can H.R. 5 be justified under the Necessary and Proper Clause as incidental to the regulation of interstate Commerce. On the contrary, during the debates over ratification of the Constitution, leading Founders specifically represented that the subject-matter of H.R. 5 was outside federal enumerated powers and reserved to the states...

Even before the Ninth and Tenth Amendments reinforced the limits, Founders, such as Madison, Hamilton, and James Wilson, among others, represented that tort law and civil justice specifically were to be state concerns. True, Congress could erect and regulate federal courts with diversity jurisdiction, but only because of separate constitutional grants, not as a result of the Commerce Power. Indeed, I have never seen any evidence that the power to erect and regulate federal courts included authority to alter prevailing tort law even in those courts, and certainly not in state courts.

To the extent that H.R. 5 regulates health care in addition to civil justice, it is also outside the Commerce Clause. No less an authority than Chief Justice John Marshall said so, in Gibbons v. Ogden, a decision celebrated as an expansive interpretation of the Commerce Power. In that case, Marshall (himself formerly a leading Ratifier) stated that "health laws of every description"--presumably including laws governing health care litigation--were reserved exclusively to the states...

Up till now the state courts have been one of the few areas of life relatively untouched by federal meddling. That is as it was supposed to be: State court systems are central to state sovereignty. Moreover, the Constitution reserves most issues of civil and criminal justice to the exclusive authority of the states, rather than the federal government. When the Constitution was being considered, its supporters said explicitly that state court systems are constitutionally out-of-bounds for Congress...

HR 5 is advertised as addressing abusive lawsuits against physicians, but it goes far beyond that. It would regulate in detail just about every American lawsuit that has anything to do with health care: What an injured party can allege in his or her initial filing, the damages he or she can recover, how damages are disbursed, burdens of proof, what the jury may and may not consider, which state laws survive and which don't. HR 5 even directs state judges to conceal pertinent information from the jury. It's not certain the Supreme Court would uphold all of this bill. But it is certainly a flagrant invasion of local control. Here's a real irony: The Republicans supporting HR 5 justify it by parroting exactly the same ridiculous "Commerce Clause" claims the President uses to justify ObamaCare.

Partially in response to the Rob Natelson's April letter to Congress, the pro-tort reform side trotted out a corporate lawyer to write a defense of H.R. 5. The paper relies on what has become, since the early 1940s, the standard basis cited for all encroachments by the federal government into business decisions. Quoting from the ATRA paper:

Since the 1942 case of Wickard v. Filburn, involving Congress's power to regulate the production of homegrown wheat, the United States Supreme Court has interpreted the Commerce Clause quite broadly with respect to the regulation of economic activity... The nonpartisan Congressional Research Service (CRS) has closely analyzed judicial precedent and concluded that 'there seems little doubt that tort reform legislation, in general, would be within Congress's commerce power.' Under its power to regulate interstate commerce, Congress may 'make such legislation applicable to intrastate torts, because tort suits generally affect interstate commerce.' With respect to the HEALTH Act, CRS has specifically recognized that '[m]edical malpractice liability is governed by state law, but Congress has the power, under the Commerce Clause of the United States Constitution (Art. I, § 8, cl. 3) to regulate it.' Healthcare is truly national in scope and fundamental to interstate commerce... By placing an upper limit on subjective and otherwise limitless pain and suffering damages against doctors and other medical professionals, Congress can promote a more cost-effective healthcare delivery system... H.R. 5 is consistent with the Tenth Amendment, which provides that '[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Other conservative and Tea Party-side legal experts revolted openly against this paper and H.R. 5, and chastised House Republicans for condemning ObamaCare in one speech and pushing the expansion of fedral authority over health care and states' rights in another.

Professor Randy Barnett of Georgetown University Law Center, the conservative legal superstar involved in the multistate lawsuit against ObamaCare in federal court, wrote in an op-ed on May 21: "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. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits. Constitutional law professors have long cynically ridiculed a 'fair-weather federalism' that is abandoned whenever it is inconvenient to someone's policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers 'reserved to the states' as affirmed by the Tenth Amendment, they will prove my colleagues right."

Prof. Barnett was interviewed on the nationally syndicated What's Up radio program by host Terry Lowry about how H.R. 5 violates the limitations on the powers granted to the federal government in the Constitution and Bill of Rights. You can listen to the first segment of his interview here and listen to the second segment of the interview here (MP3 audio files). Starting at 2:32 of the second segment, he said, "Congress doesn't really have the authority to do tort reform legislation because that has historically been within the province of the states..." He proceeded to reiterate the other points of his op-ed, especially that federal tort reform legislation is an abuse of the Commerce Clause.

Prof. Ilya Somin of the George Mason University School of Law, another conservative legal expert who co-authored amicus briefs in anti-ObamaCare court cases, concurred with Prof. Barnett in a May 23 blog post. "Hopefully, at least some Republican conservatives will begin to see that you can't advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other. In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states' ability to regulate conduct outside their borders." The previous post to which he referred was in February in which he wrote, "In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any 'activity.' Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward."

Yet another respected conservative professor, Jonathan Adler of the Case Western Reserve School of Law, wrote a very brief comment against H.R. 5 in support of an attack from an unusual source, an pro-tort reform advocate, about which I will write in a separate post. Prof. Adler wrote that, "support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme." Professor Adler is a frequent contributor to the events and publications of the Federalist Society, considered the premier conservative-side legal organization in the country.

Professor John Baker, a Distinguished Scholar at Catholic University Law School, Professor Emeritus at LSU Law School, and frequent presenter at Federalist Society events, wrote on the Daily Caller website on June 22 that H.R. 5 and ObamaCare are two peas from the same post-Willard Commerce Clause pod:

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. Both national medical malpractice reform and Obamacare are radically at odds with our constitutional structure of federalism, though Obamacare is especially radical because it represents the first time that the federal government has required people to purchase a product (health insurance).

What compels House Republican leaders to ignore the Constitution? Nationalizing medical malpractice law would not necessarily protect hometown doctors. Some states currently offer doctors better protection, without being subjected to federal bureaucrats. Other states would do so if doctors worked their own state legislatures, rather than relying on a Washington lobby, the American Medical Association.

The explanation for the eagerness of House Republican leaders to nationalize even more of the economy is a simple reality: both Congressional Democrats and Congressional Republicans like the New Deal interpretation of the Commerce Clause, which allows them to expand national power. They would just do so for different purposes.

Prof. Baker went further, warning Republicans like Rick Perry that enacting a federal tort reform bill like H.R. 5 could boost the chances that the Supreme Court would rule favorably on the Affordable Care Act. "Seeing that Republicans are as willing as Democrats to nationalize different parts of healthcare, the justices might conclude that there is a Congressional consensus to nationalize all of healthcare. Since justices tend to defer to Congress, that might be enough to tip the scales in Obamacare's favor."

Is that really what Rick Perry wants? To boost the chances of victory for ObamaCare?

Rob Natelson returned to the subjects of federal tort reform and the Commerce Clause on July 18 in the course of a discussion on Chief Justice John Marshall and his signature case, Gibbons v. Ogden, on the Tenth Amendment Center website:

"Gibbons v. Odgen is often appealed to, as Justice Jackson did, for a very broad reading of the 'commerce' component of the Necessary and Proper Clause. Under this reading, the Necessary and Proper Clause allows Congress to regulate any economic activity "substantially affecting" interstate commerce: agriculture, mining, manufacturing, heath care, insurance, medical marijuana--in fact, the entire economy.

However, Gibbons did not even mention the Necessary and Proper Clause. The primary holding of Gibbons was that navigation was within the prevailing legal definition of 'commerce' for constitutional purposes--a decision that, under the original understanding of the Constitution, was clearly correct. Some of the Court's dicta (extraneous language) added that in some circumstances commerce (including navigation) within state boundaries might be so tied up with interstate commerce that Congress could regulate it as well. But when Marshall addressed other aspects of the economy, it was to say that they were outside of Congress's power. He specifically mentioned 'health laws of every description' as being reserved exclusively to the states.

So those who use Gibbons to argue for the constitutionality of federal control of manufacturing, agriculture, land use, or health care are twisting some of Marshall's words and omitting others.

In other words, the pro-ObamaCare forces and the pro-tort reform causes make the same error for the same reasons. In both cases, the result of victory in each case would be the exercise of excessive federal power, to the detriment of individual rights and the rights of individual states to regulate and manage the daily activities of the citizenry.

That makes FIVE conservative legal experts, bright shining stars in the conservative legal universe, standing against the concept of federal tort reform. Two other legal experts wrote about the unconstitutionality of H.R. 5, but they deserve special discussion in another post, because they're pro-tort reform advocates who recognized the unconstitutionality of H.R. 5.

Rick Perry used to be a sincere advocate of states' rights. He was against a federal tort reform bill as recently as last year.

Rick Perry, November 4, 2010, on CNN:

"One of the reasons why I was never for a national tort reform was because I think we do it better in the state of Texas... that ought to be our decision in the state of Texas."

Now? Well, he's under pressure from other Republican candidates, so he whipped out his big applause line last night.

Rick Perry, September 12, 2011, during the CNN-Tea Party Express debate:

"...one of the things that's really important, one of the things that the Fed Reserve chairman said was the most powerful, one of the most powerful thing that happened, was tort reform that we passed in that state. You want to talk about some powerful job creation, tell the trial lawyers to get out of your state and to quit costing businessmen and women. That's what needs to happen in the states. and it's also what needs to happen at the federal level, passing federal tort reform at those federal levels."

But you don't have to take my word for it, watch it yourself on YouTube below!

Governor Rick Perry took the gloves off in the CNN-Tea Party Express debate, declaring war on the 7th and 10th Amendments by calling for "federal tort reform," as follows:

"...one of the things that's really important, one of the things that the Fed Reserve chairman said was the most powerful, one of the most powerful thing that happened, was tort reform that we passed in that state. You want to talk about some powerful job creation, tell the trial lawyers to get out of your state and to quit costing businessmen and women. That's what needs to happen in the states. and it's also what needs to happen at the federal level, passing federal tort reform at those federal levels."

So never mind that SEVEN conservative experts on constitutional law, including the leading anti-ObamaCare professor in America and two noted ANTI-civil litigation experts, have written that federal tort reform is an unconstitutional abridgement of states' rights. Never mind that the long list of REPUBLICANS who agree with that assessment include former Texas judge and current Congressman Ted Poe; Rep. Ron Paul; Sen. Tom Coburn; Tea Party favorite Rep. Morgan Griffith of Virginia; and veteran Rep. John Duncan of Tennessee. Never mind that the co-founder of the Tea Party Patriots, Mark Meckler of Texas, also says that tort law is a province of the states. Forget about the long letter by the bi-partisan National Conference of State Legislators, co-signed by a Texas state representive, that warned Congress against enacting federal tort reform because it violates states' rights.

Has Rick Perry or his vaunted team ever read what the Founding Fathers actually wrote about the right to a jury trial for civil suits? What about James Madison's famous admonition that the 7th Amendment right is "as essential in securing the liberty of the people as any of the pre-eminent rights of nature," and Thomas Jefferson's clear principle that trial by jury in all cases is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." Doesn't he realize that
the protection of any of our inalienable rights depends, in large measure, on the right to unfettered access to state and local courts?

Conservatives like Rick Perry who think that "tort reform" can be limited to just medical malpractice cases are dreaming. When any of our rights are compromised, ALL of our rights are limited, including the rights to freely exercise our religion, bear arms, express our opinions without fear of being muzzled, and enjoy the benefits of our private property and labor freely offered.

No, Perry didn't care about constitutional principles at all. He felt the heat of all the criticism he was taking from the other candidates and grasped for the big applause line - "kill all the lawyers." He shot his mouth off in the heat of battle. Sound like a real President to you? What will he say when he's up against a real tough guy, like Ahmadinijad? If he's ignorant on some of the basic writings of our Founding Fathers, distrustful of local juries, and willing to throw the Constitution overboard for an applause line, how are we supposed to trust him with our lives and fortunes?

Ideas have consequences. I'll discuss the real-world consequences of Rick Perry's federal tort reform for victims in my next post. For starters, the consequences are that Rick Perry breaks his promises; that he's a phony "states' righter;" he's flip-flopped on the use of federal power and the Constitution as they apply to abortion, marriage, and the civil jury process; he's not a real "Tea Party" leader or representative; and he's a classic "crony capitalist." What else is there?

I've written often about Rep. Ron Paul's support for real Constitutional conservatism and states' rights, including for protecting state civil justice systems from federal takeover through "tort reform" or limits on state medical malpractice lawsuits. Recently the conservative Club for Growth issued a "Presidential White Paper" about Dr. Paul's votes on key issues, and they devoted an entire section to "Tort Reform." It's obvious that on this issue, the CfG is no more of a "Constitutionally conservative" group than many groups in the business community - check out the following comments on Dr. Paul's stand:

The American economy suffers from excessive litigation which increases the cost of doing business and slows economic growth. The Club for Growth supports major reforms to our tort system to restore a more just and less costly balance in tort litigation.

Representative Paul opposes federal tort reform for the same reason he opposes most federal solutions--he believes the federal approach "damages the Constitution by denying states the right to decide their own local medical standards and legal rules." To that end, he has voted against many tort reform measures in Congress...

Instead of traditional federal tort reform, he proposes "private contractual agreements between physicians and patients" that "enables patients to protect themselves with 'negative outcomes' insurance purchased before medical treatment." In theory, Paul's solution may help alleviate the situation, but it is politically untenable. While Paul's idealism is laudable, he has not offered a viable alternative for dealing with a problem that is hurting American consumers and businesses, while diminishing our international competitiveness.

So when it comes to the civil justice system, the CfG treats the Constitution as just a "laudable ideal" that isn't "viable" in dealing with "problems." There's nothing Constitutional about that stance. The Founding Fathers didn't think that way. Dr. Paul doesn't think that way, thank God. Neither do Republican Members of Congress like Reps. Ted Poe, Lee Terry, and Morgan Griffith, or Sen. Tom Coburn. Seven nationally respected experts on the Constitution, the National Conference of State Legislators, and Tea Party Patriots co-founder Mark Meckler don't think so either. They recognize that "a problem that is hurting American consumers and businesses" is no excuse for cutting the Bill of Rights in half.

The Club for Growth's disdain for Constitutional limits on federal power is closer to the views of the pro-ObamaCare crowd than it is to the Founding Fathers or the Tea Party movement's views. To the Club for Growth, the Constitution and Bill of Rights are movable targets subject to negotiation and the impact of lobbying and campaign contributions, not a set of firm principles of limited government protecting God-given, "unalienable" rights. Candidates seeking the support of the Club for Growth should be wary of their demands.

Texas Governor Rick Perry is putting a Presidential campaign in place, and I assume he'll run. But which Rick Perry will we see? Will we see the Rick Perry who cherishes and honors the 10th Amendment as the vehicle for protecting states' rights - the one who is willing to honor a state's decisions even when it might interfere with his personal views? Or will we see the Rick Perry who continues to brag about Texas-style tort reform, as it it's a nationwide solution, even though federal tort reform is clearly a breach of the 10th Amendment and states' rights? On July 23, I asked whether he would stand against federal tort reform as a true Constitutional conservative, and what I've seen since then hasn't lessened my curiosity or concern.

Both Rick Perrys were on display on July 30, when he addressed the Western Conservative Forum in Colorado. He began the substantive part of the speech by proposing that Washington "has intruded upon the rights of the states and individuals to make decisions about our own healthcare, our businesses, our money,..." all pure pro-10th Amendment, anti-ObamaCare talk. Terrific! And then he described the Constitutional limits on the federal government, and he read the entire 10th Amendment. Great, love it! But then he talked about the Texas model for economic success, which includes tort reform "so frivolous lawsuits don't paralyze employers..." He never specifically called for a one-size-fits-all, federally mandated takeover of state civil justice systems, but he left the obvious impression that he would take that idea forward, with no consideration of the rights of states or individuals. And in his book, "Fed Up," Governor Perry says that Republicans stand for ending frivolous lawsuits through "real tort reform," again with no thought for the Founding Fathers' respect for civil jury trials.

So while Governor Perry hasn't specifically called for Uncle Sam to run over the 7th Amendment right of individual Americans to seek a civil jury trial, or or pre-empt the 10th Amendment right of states to run their own courtrooms, it's obvious that he hasn't read what's already been said on the issue by Reps. Ron Paul and Ted Poe; Sen. Tom Coburn; anti-ObamaCare Prof. Randy Barnett and six other experts on the Constitution; Mark Meckler; pro-life activist Ken Connor; and the nation's largest group of state legislators. All of them say that Texas-style tort reform is unconstitutional on the federal level. There are no group of legal experts who say otherwise now.

The country doesn't need a part-time Constitutional conservative - we have enough of those. I hope Governor Perry makes a strong statement of his pure commitment to Constitutional rights before he starts the campaign.

P.S. To all of you who attended the WCF and applauded loudly at Gov. Perry's comments on tort reform, I can only say that you're not real Constitutional conservatives... yet.

One editorial note here about what has been termed by politicians and the public the "ridiculous" debt limit debate as the compromise bill is enacted. Now matter which side you take in the outcome, it should be clear that the issue highlights the massive size and scope of federal power today (80 million checks a month!), and the tendency for that power to eventually overshadow all other facets of Americans' daily life. That's exactly what the Founding Fathers feared, and why signers of the Constitution, such as George Mason, Eldridge Gerry and Edmund Randolph, led the movement to ensure that federal power is limited even beyond the language of the Constitution, through enactment of a Bill of Rights. Many wise legal scholars are asserting, correctly, that the Commerce Clause in Article I of the Constitution was never intended as the basis for either ObamaCare or a sweeping federal tort reform/medical malpractice bill. George Mason explicitly warned that, absent a Bill of Rights, the power granted in Article I would eventually overpower both God-given individual rights (including the right to civil jury trials) and the authority which is better left to the states.

In the midst of overheated rhetoric about the intentions of either sides in the debt limit debate (I take particular offense to the characterization of Tea Party activists as "terrorists"), I hope all Americans determine that any enterprise with this much power MUST be limited by strict and pure adherence to the protection of individual and states' rights. Any politician who adheres to such a belief cannot pick and choose between which rights to protect and the time at which to protect them. The "ridiculous" debt limit debate is the perfect opportunity for those of us who cherish the right to civil jury trials to remind the rest of America that the man who drafted the Bill of Rights, James Madison, referred to that particular right in the highest terms: "as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Over the course of the year, I've quoted constitutional scholar Rob Natelson of the Tea Party-side Independence Institute numerous times, for his clear writings condemning a federal bill to limit damages awarded in medical malpractice and other health care-related lawsuits. He continues to analyze the original writings of the Founding Fathers to determine their intentions for the scope and shape of the powers enumerated to the federal government in the Constitution.

Writing recently on the pages of the Tenth Amendment Center, Natelson wrote an article titled, "The Greatly Misunderstood Chief Justice John Marshall." In it he discussed the twisting of Marshall's legacy by historians to justify judicial activism. Included in the discussion is an analysis of Marshall's rulings in key cases such as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), the case often cited for an expansive view of the Commerce Clause by proponents of both ObamaCare and a federal tort reform bill to override state court systems. Natelson describes the actual intention of Marshall's rulings in those two cases:

Marshall's treatment of the Necessary and Proper Clause in McCulloch v. Maryland is widely misunderstood by people who (A) don't know the law of the time, (B) haven't read the entire opinion, and/or © don't know that two of the words Marshall used--"convenient" and "appropriate"-- had narrower meanings in his time than they have today. Marshall himself explained the decision in a subsequent series of op-eds, where he acknowledged that the Necessary and Proper Clause is not a grant of power at all, but an interpretive guide.

Gibbons v. Odgen is often appealed to, as Justice Jackson did, for a very broad reading of the "commerce" component of the Necessary and Proper Clause. Under this reading, the Necessary and Proper Clause allows Congress to regulate any economic activity "substantially affecting" interstate commerce: agriculture, mining, manufacturing, heath care, insurance, medical marijuana--in fact, the entire economy.

However, Gibbons did not even mention the Necessary and Proper Clause. The primary holding of Gibbons was that navigation was within the prevailing legal definition of "commerce" for constitutional purposes--a decision that, under the original understanding of the Constitution, was clearly correct. Some of the Court's dicta (extraneous language) added that in some circumstances commerce (including navigation) within state boundaries might be so tied up with interstate commerce that Congress could regulate it as well. But when Marshall addressed other aspects of the economy, it was to say that they were outside of Congress's power. He specifically mentioned "health laws of every description" as being reserved exclusively to the states.

So those who use Gibbons to argue for the constitutionality of federal control of manufacturing, agriculture, land use, or health care are twisting some of Marshall's words and omitting others.

In other words, the pro-ObamaCare forces and the pro-tort reform causes make the same error for the same reasons. In both cases, the result of victory in each case would be the exercise of excessive federal power, to the detriment of individual rights and the rights of individual states to regulate and manage the daily activities of the citizenry.

Americans are fortunate to have someone like Rob Natelson who has the ability and time to dig into the details of the foundational documents of our nation and educate us on the limits on federal power as intended by the Founders.

Recently the West Virginia Supreme Court ruled that a new state law imposing caps on noneconomic damages in medical malpractice awards was constitutional, ignoring the fact that the West Virginia Constitution protects the right to a jury trial for civil suits with identical language as the Seventh Amendment to the U.S. Constitution. A visiting circuit court judge who assisted the Supreme Court in that case dissented strongly, with a vigorous and detailed assertion that damage caps effectively abridge the constitutional rights of West Virginia citizens. Here are excerpts from Circuit Judge Ronald Wilson's 12-page dissenting opinion, released Friday afternoon and sent to me by Joseph Rice and Victoria Antion Nelson of the Motley Rice law firm:

The West Virginia Legislature made a purely political decision and violated the West Virginia Constitution when it drastically reduced the cap on noneconomic damages in medical malpractice cases from $1 million to $250,000, in most cases. When the Legislature turns against its constituency in favor of pressure groups with selfish interests, it is the peoples' right to seek help from their Supreme Court, and it is the duty of the judicial branch to exercise its proper role in the 'separation of powers' to void legislation that violates the constitutional rights of its citizens...

Not affecting fundamental rights? The right to a trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial? How could the majority in MacDonald avoid the reverberating 'NO' answer to these questions when the answer had been clearly stated in several West Virginia cases... 'In other words, 'when a legislative enactment either substantially impairs vested rights or severely limits existing procedural remedies permitting court adjudication of cases, then the certain remedy provision of Article III, Section 17 of the West Virginia Constitution is implicated.' Syl. pt. 6, in part, Gibson v. West Virginia Dep't of Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991)...

The Court's degrading of the right of a jury trial in a civil case in West Virginia is in square conflict with the United States Constitution. The phrases used in the United States Constitution and the West Virginia Constitution for granting the right to a civil jury trial are almost identical. For our Supreme Court to suggest that the right to a jury trial in West Virginia is not as great as that in another state that uses the phrase "the right to trial by jury shall remain inviolate" in its constitution makes no sense. If the Federal right to a jury trial is based upon the phrase "the right of trial by jury, if required by either party, shall be preserved" and West Virginia's constitutional right to a jury trial is based upon the phrase "the right of trial by jury, if required by either party, shall be preserved" is our Supreme Court being a bit iniquitous to even suggest that the right to a jury trial in West Virginia is not as great as it is in, for instance, the state of Georgia? (Editor's Note: The Georgia Supreme Court ruled in 2010 that damage caps in medmal cases violate the Georgia constitution.)

Not affecting fundamental rights? The right of equal treatment is also a very fundamental right. How can a damage cap that blatantly favors a special class of medical professional by limiting or taking away the damages an injured person may recover from a medical professional be constitutional? No other person who negligently injures another person is given that unconstitutional protection. Would any West Virginia legislator suggest that lawyers be given that special protection? I doubt it...

Although we wish it were not so, all judges have audiences that they seek to please. With these audiences and with the natural desire to win expensive elections, it is essential for judges and justices to always remember the importance of the protections given to all people in our State and Federal Constitution and to decide disputes based on those cherished documents. In many cases that means a decision that displease a majority of the voters. It may mean that a judge's audience will be unhappy with the decision. But an independent judiciary has to protect the rights of minorities as well as the rights of the majority. And an independent judiciary has to protect the rights of victims of medical negligence as well as the rights of doctors who are overcharged by insurance companies...

The battleground for the fundamental right to a civil trial by a local jury is shifting from Washington to the states, with many imposing damage caps in the face of their own constitution. Judge Wilson's dissent should be carried into courtrooms throughout the country.

"Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That's New York, and that's their business, and that's fine with me. That is their call. If you believe in the 10th Amendment, stay out of their business."

That's Gov. Rick Perry of Texas, quoted by the AP and repeated in Politico yesterday. So obviously, Gov. Perry should be in favor of protecting state tort law regimes and against federal tort reform, right?! After all, his fellow Texans, Rep. Ron Paul and Tea Party Patriots co-founder Mark Meckler, are already on record against it, and another Texas Republican, Rep. Ted Poe, is against H.R. 5, the medical malpractice tort reform bill pushed by Texas Republican Rep. Lamar Smith.

We need a clear statement from Gov. Perry on his stand on federal tort reform if he runs for President. Either he's the real deal like Ron Paul, or he's just another inconsistent "Constitutional conservative" like Michele Bachmann and all of the other GOP Presidential candidates right now.

The Gang of Six proposal includes a sentence to save "an unspecified amount through medical malpractice reform." But that's unconstitutional. Sen. Coburn said so three weeks ago when he compared the idea to ObamaCare: "What I worry about as a fiscal conservative and also as a constitutionalist, is that the first time we put our nose under the tent to start telling Oklahoma or Ohio or Michigan what their tort law will be, where will it stop? In other words, if we can expand the commerce clause enough to mandate that you have to buy health insurance, then I'm sure nobody would object to saying we can extend it enough to say what your tort law is going to be." Conservative Professor John Baker, a Federalist Society superstar, says enacting national medmal reform could boost ObamaCare - "Both national medical malpractice reform and Obamacare are radically at odds with our constitutional structure of federalism..." Anti-ObamaCare Professor Randy Barnett also says federal tort reform is unconstitutional: "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." Conservative and anti-ObamaCare legal scholars Ilya Somin and Jonathan Adler concurred with Barnett's op-ed. So did tort reform advocates Walter Olson ("most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems") and Ted Frank (referring to Congress: "It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform"). And Constitutional scholar Rob Natelson of the Independence Institute wrote the first letter to House Republicans on this subject months ago, warning against the medmal reform bill there: "H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments... Here's a real irony: The Republicans supporting HR 5 justify it by parroting exactly the same ridiculous 'Commerce Clause' claims the President uses to justify ObamaCare."

There's more. Rep. Ron Paul, a medical doctor, said during the Fox News South Carolina Presidential debate that federal medical malpractice reform is unconstitutional: "It's a state matter; tort law is a state matter." Veteran GOP Congressmen such as Rep. John Duncan agree with Sen. Coburn and Dr. Paul - "I have faith in the people - I have faith in the jury system. It's one of the most important elements of our freedom, and it was so recognized in the Constitution..." And the nonpartisan National Conference of State Legislators wrote to Congress slamming H.R. 5, the "medmal reform" bill: "Federal medical malpractice legislation inappropriately seeks to preempt various areas of state law." Mark Meckler, Tea Party Patriots co-founder and coordinator, says "'It's not for the federal government to be adjusting the legal system of individual states." This week, veteran social conservative leader Ken Connor, former President of the Family Research Council, criticized federal tort reform as unconstitutional.

I'm disappointed that Sen. Coburn flip-flopped on his statement of three weeks ago and that the Gang of Six didn't research the constitutionality of the medmal proposal before including it. There are lots of great ideas for reducing health care costs out there in the medical community, readily available to anyone who has an Internet connection. The rest of Congress shouldn't ignore the Constitution and should drop that sentence from future deliberations.

Congress did not intend for arbitration agreements, adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, and which require questions about the negligence be submitted to arbitration, to be governed by the Federal Arbitration Act.

In essence, our Constitution recognizes that factual disputes should be decided by juries of lay citizens rather than paid, professional fact-finders (arbitrators) who may be more interested in their fees than the disputes at hand.

The admission agreements in this case contain arbitration clauses that eliminate a fundamental constitutional right: the right of the parties to have a jury trial in the West Virginia circuit court system on the plaintiffs' personal injury claims against the defendant nursing homes.

The West Virginia Supreme Court wrote these statements last week when issuing rulings in three cases against the use of forced arbitration clauses in nursing home contracts to keep victims from taking their case to a jury of their peers. Each case involved (1) a claim that a nursing home negligently caused the death of a resident; (2) a contract signed by a representative for the resident with a clause mandating that any disputes arising from negligent treatment would be submitted to arbitration; and (3) a defense by the nursing home that the claim should be submitted to arbitration, not to a jury at trial.

The court courageously disagreed, citing Article III, § 13 of the state Constitution, which preserves the right of the people to a jury trial with language identical to that of the Seventh Amendment. The Justices also criticized the "tendentious reasoning" used by the U.S. Supreme Court in its rulings to turn the Federal Arbitration Act into a substantive law that preempts most state law.

Congratulations to the attorneys who pleaded these cases and won the victory for their clients. Hopefully this decision will start a trend in other courtrooms and spark a change in opinions in Congress about forced nursing home arbitration contracts. A bill to ban such clauses has been gathering dust for several years and needs to be resuscitated.

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

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

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

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

"The people choose a grand jury, to make inquiry and presentment of crimes. Twelve of these must agree in finding the bill. And the petit jury must try the same fact over again, and find the person guilty, before he can be punished. Innocence, therefore, is so well protected in this wise constitution, that no man can be punished till twenty-four of his neighbors have said upon oath that he is guilty. So it is also in the trial of causes between party and party. No man's property or liberty can be taken from him till twelve men in his neighborhood have said upon oath, that by laws of his own making it ought to be taken away, that is, that the facts are such as to fall within such laws. What a satisfaction is it to reflect, that he can lie under the imputation of no guilt, be subjected to no punishment, lose none of his property, or the necessaries, conveniencies, or ornaments of life, which indulgent Providence has showered around him, but by the judgment of his peers, his equals, his neighbors, men who know him and to whom he is known, who have no end to serve by punishing him, who wish to find him innocent, if charged with a crime, and are indifferent on which side the truth lies, if he disputes with his neighbor!"

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

'And a trial by jury shall be preserved as usual in civil cases.'

Elbridge Gerry, one of the signers of the Declaration of Independence, proposed that addition to the draft of the U.S. Constitution near the end of the Constitutional Convention in September 1787. Charles Pinckney, delegate to the convention from South Carolina, joined him in the motion. The motion reflected the fervent belief by the two men that the Constitution would be incomplete and would not sufficiently protect the rights of individuals and of the states, in particular the right to a jury trial for civil cases. Gerry voted against the Constitution for that reason and was joined by George Mason and Edmund Randolph of Virginia. Although the motion was defeated that day, co-authors Gerry and Pinckney saw their motion included in the Bill of Rights introduced into the First Congress by James Madison and ratified by the states as the Seventh Amendment to the Constitution.

This quote is included in an excellent article, Charles Pinckney and the Seventh Amendment, written by Joel W. Collins, Jr., of the firm of Collins & Lacy, PC, for the Fall 2009 issue of Voir Dire, published by the American Board of Trial Advocates. The article also includes additional details on the development of the right to a jury trial for civil suits, and I highly recommend it.

"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:"

And the Declaration was preceded by the first Virginia Constitution, enacted June 29, 1776, which also condemned King George III, "For depriving us of the benefits of trial by jury," and the Virginia Declaration of Rights enacted on June 12, 1776, in which Article XI states, "That in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred."

As I posted when I opened this website, our Founding Fathers were crystal clear that Americans have an unalienable right to jury trials for civil suits.

HAPPY INDEPENDENCE DAY!!

What I worry about as a fiscal conservative and also as a constitutionalist, is that the first time we put our nose under the tent to start telling Oklahoma or Ohio or Michigan what their tort law will be, where will it stop? In other words, if we can expand the commerce clause enough to mandate that you have to buy health insurance, then I'm sure nobody would object to saying we can extend it enough to say what your tort law is going to be. Then we are going to have the federal government telling us what our tort laws are going to be in healthcare, and what about our tort laws in everything else? Where does it stop?

One of the things our founders believed was that our 13 separate states could actually have some unique identity under this constitution and maybe do things differently, and I think we ought to allow that process to continue as long as we are protecting human and civil rights.

So says Sen. Tom Coburn, Republican from Oklahoma and a veteran doctor, in a new interview with Medscape, a pro-tort reform website. Thank God there are more clear-eyed Constitutional conservatives now in Congress like Sen. Coburn, who recognizes what the Founding Fathers were actually doing when they enacted the Commerce Clause and the Bill of Rights. The Commerce Clause in no way justifies the imposition of federal tort reform laws such as H.R. 5, the medical malpractice tort reform bill to federally limit civil suits against health care providers, drug and device companies, and insurance companies. He reiterates the point that I made here on May 6, that if health insurance isn't "commerce," then neither is health litigation. Sen. Coburn also recognizes that the so-called "state flexibility" section in H.R. 5 is a joke and doesn't protect states' rights at all, in contradiction to the 10th Amendment.

Sen. Coburn joins the following SEVEN Constitutional scholars in opposing H.R. 5 and the wholesale destruction of states' rights through sweeping federal tort reform laws:

Prof. John Baker, LSU Law School
Prof. Randy Barnett, Georgetown Law Center
Rob Natelson, Independence Institute
Walter Olson, Cato Institute
Ted Frank
Prof. Ilya Somin, George Mason Law School
Prof. Jonathan Adler, Case Western Reserve Law School

Sen. Coburn is joined by Tea Party Patriots co-founder Mark Meckler and real conservatives in Congress such as Reps. Ron Paul, John Duncan, Morgan Griffith, Lee Terry, and many others.

Sen. Coburn's vote for Constitutional limits on Congressional power is a breath of fresh air, and we should support him with calls and e-mails to our Congressmen and Senators.

Because the federal government shouldn't be involved. It's a state matter; tort law is a state matter.

Rep. Ron Paul when asked by Fox News' Shannon Bream why he opposes a federal medical malpractice law, during the GOP Presidential debate in South Carolina, May 5, 2011 (starting just after the 3:00 mark on the embedded video).

Rep. Paul has written before about his principled opposition to federal tort reform bills, and he has voted that way on the floor of the U.S. House. Rep. Paul is one of the few Republicans who have been in office long enough to have a chance to vote on H.R. 5, the "HEALTH Act," in two previous Republican Congresses, and he has never voted for it.

Rep. Paul, who has delivered approximately 4,000 babies as a licensed ob-gyn, repeated his opposition to federal tort reform bills and the general federal preemption doctrine when he was interviewed on the nationally syndicated 'What's Up' radio program by host Terry Lowry last week. You can download his interview here (mp3 file). He discusses the importance of the Bill of Rights, including the 7th Amendment, his opposition to federal preemption of state laws twice during the interview, and to federal tort reform bills starting at the 5:15 mark.

Tomorrow is the 222nd anniversary of the introduction by James Madison of the first proposed amendments to the Constitution, eventually the Bill of Rights, before the first Congress.

I posted long excerpts of Madison's remarks here on March 30, including the language of his amendment to protect the right to a jury trial for civil suits: In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate. Madison went on to describe that right "as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Of course, he was one of many of the Founding Fathers who supported the unfettered right to a civil jury trial. Quote of the Day has been a feature of this website since I opened almost a year ago, in order to highlight the Founding Fathers' quotes in favor of the 7th Amendment. Here are more such quotes by Thomas Jefferson and other Founders and commentators:

I sincerely rejoice at the acceptance of our new constitution by nine States. It is a good canvas, on which some strokes only want retouching. What these are, I think are sufficiently manifested by the general voice from north to south, which calls for a bill of rights. It seems pretty generally understood, that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies. I conceive there may be difficulty in finding general modifications of these, suited to the habits of all the States. But if such cannot be found, then it is better to establish trials by jury, the right of habeas corpus, freedom of the press and freedom of religion, in all cases, and to abolish standing armies in time of peace, and monopolies in all cases, than not to do it in any. The few cases wherein these things may do evil, cannot be weighed against the multitude wherein the want of them will do evil. In disputes between a foreigner and a native, a trial by jury may be improper. But if this exception cannot be agreed to, the remedy will be to model the jury by giving the mediatas linguae, in civil as well as criminal cases. Thomas Jefferson, letter to James Madison, July 31, 1788.

In conformity with these principles, and from respect for the public sentiment on this subject, it is submitted, that the new constitution proposed for the government of the United States be bottomed upon a declaration or bill of rights, clearly and precisely stating the principles upon which this social compact is founded, to wit: ... that the trial by jury in criminal and civil cases, and the modes prescribed by the common law for the safety of life in criminal prosecutions shall be held sacred,... Richard Henry Lee, proposed amendments to the Constitution, October 16, 1787.

Your constitution further provides 'that in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.' ... Whether the trial by jury is to continue as your birth-right, the freemen of Pennsylvania, nay, of all America, are now called upon to declare... The late Convention have submitted to your consideration a plan of a new federal government--The subject is highly interesting to your future welfare--And it is worthy of remark, that there is no declaration of personal rights, premised in most free constitutions; and that trial by jury in civil cases is taken away... 'Centinel,' presumed to be "Antifederalist" Samuel Bryan, in letter to fellow Pennsylvanians, October 5, 1787.

If the federal constitution is to be construed so far in connection with the state constitutions, as to leave the trial by jury in civil causes, for instance, secured; on the same principles it would have left the trial by jury in criminal causes, the benefits of the writ of habeas corpus, &c. secured; they all stand on the same footing; they are the common rights of Americans, and have been recognized by the state constitutions... "Federal Farmer IV", another of the "Antifederalists," in letter of October 12, 1787.

These quotes are the seeds of our democracy, planted by our forefathers, nurtured and fed with the blood, toil, and sweat of two hundred years of Americans who served the cause of freedom.

"Impermissible." That's the word used last week by pro-tort-reformer Ted Frank on the Point of Law legal blog to describe the Constitutional status of H.R. 5, the "HEALTH Act," designed to pre-empt most health care-related lawsuits around the country. His post conceding that Congress should not "impermissibly federalize all medical malpractice litigation" capped a stunning week in which intellectual support for H.R. 5 evaporated.

As I wrote here earlier, on May 21, Prof. Randy Barnett, the GOP's favorite Constitutional scholar, wrote a scathing op-ed in the Washington Examiner and a Volokh Conspiracy blog post, both of which condemn H.R. 5 as a breach of states' rights (attached as Acrobat docs). He asked out loud if the House GOP are "fair-weather federalists." His op-ed was an intellectual and political earthquake; it was very widely distributed and the subject of an article in 'The Hill' on May 23. And note that Barnett's objections are NOT resolved by exempting state constitutions and courts from the reach of the bill, as Democrats tried to do during two committee markups.

On May 22, Prof. Ilya Somin of George Mason Law School, another Tea Party-side scholar, concurred with Prof. Barnett in a Volokh blog post, and he took his own shots at GOP supporters of H.R. 5. "Hopefully, at least some Republican conservatives will begin to see that you can't advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other."

On May 23, Ted Frank wrote his concession. Quote: "It's easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care. It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform." (Emphasis mine.)

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

On May 24, conservative legal expert Jonathan Adler added his opinion while commenting on Olson's post: "Olson is anything but an opponent of tort reform generally. Indeed, he's been one of the litigation explosion's most prominent critics. But he recognizes that support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme." (Emphasis mine.)

On May 26, Prof. Randy Barnett was interviewed on the nationally syndicated 'What's Up' radio program by host Terry Lowry about how H.R. 5 violates the limitations on the powers granted to the federal government in the Constitution and Bill of Rights. You can listen to the first segment of his interview here and listen to the second segment of the interview here (MP3 audio files). Starting at 2:32 of the second segment, he said, "Congress doesn't really have the authority to do tort reform legislation because that has historically been within the province of the states..." He proceeded to reiterate the other points of his op-ed and that federal tort reform legislation is an abuse of the Commerce Clause, a point that Rep. Ted Poe made during consideration of H.R. 5 by the House Judiciary Committee.

Also recall that Constitutional conservative Rob Natelson of the Independence Institute in Colorado wrote a letter to the House Judiciary and Energy & Commerce Committees weeks ago to advise them that H.R. 5 is unconstitutional, with arguments very similar to those of Prof. Barnett. So that's six Constitutional experts against H.R. 5, from Natelson to Adler.

There's only one important question left for Republicans about H.R. 5, and it's purely political: WHY would the House GOP run over the Constitution to reward those medical associations which were the co-conspirators in the enactment of ObamaCare, thus shoving the unconstitutional individual mandate down our throats?!

Prof. Ilya Somin of the George Mason University School of Law is the Co-Editor of the Supreme Court Economic Review, one of the country's top-rated law and economics journals. His work has been published in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, Georgetown Law Journal, and numerous media outlets. He has been quoted or interviewed by the New York Times, Washington Post, BBC, and the Voice of America, among other media, and he testified at the Senate Judiciary Committee confirmation hearings for Supreme Court Justice Sonia Sotomayor. He's expressed conservative positions on ObamaCare, eminent domain abuse, property rights, and states' rights. Like Prof. Barnett, he's co-authored amicus briefs on behalf of plaintiffs seeking to declare ObamaCare unconstitutional. In other words, he's a Constitutional conservative, Tea Party-side legal expert, just like Rob Natelson and Randy Barnett.

And Prof. Somin is another of the growing group of the conservative legal experts now opposing any federally imposed tort reform law, starting with H.R. 5, the "HEALTH Act." Writing yesterday on the legal blog, the "Volokh Conspiracy," he commented favorably on Randy Barnett's post of Sunday. Wrote Prof. Somin:

I'm happy to see that his critique is having an impact. Hopefully, at least some Republican conservatives will begin to see that you can't advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other.

In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states' ability to regulate conduct outside their borders.

The previous post to which he referred was in February also on Volokh, and I admit that I missed it at the time. In that post, he wrote the following:

In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any "activity." Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward.

Federal reform is also largely unnecessary to solve the problem of excessive tort awards. Interstate competition can be just as effective as federal mandates, often more so. If a state allows excessive tort suits, many businesses will refuse to operate there or charge higher prices. This in turn reduces state tax revenue, forcing state legislatures to curb their courts.

So now we have three real Constitutional conservatives on our side: Rob Natelson of the Independence Institute, GOP & Tea Party legal rockstar Prof. Randy Barnett, and George Mason Law Prof. Ilya Somin are all telling the Republicans that H.R. 5 and federal tort reform bills are unconstitutional. AND I'm sure there will be more. AND we have a bipartisan letter from the leadership of the National Conference of State Legislators saying the same thing.

To date, NOT ONE real Constitutional conservative, Tea Party-side legal expert will opine in favor of the constitutionality of H.R. 5. And I'd be shocked to see one do so, since that's an intellectually dishonest position.

Prof. Randy Barnett of Georgetown University Law Center is arguably the GOP's favorite Constitutional scholar. He co-authored an amicus brief for the National Federation of Independent Business in the 11th Circuit review of the State of Florida's anti-ObamaCare case; he has written often about and testified to the unconstitutionality of ObamaCare before the House Judiciary Committee and the Senate Judiciary Committee; and he's among the leading experts on the original intent of the Founding Fathers' writings, including the Constitution and Bill of Rights. Just last week, he appeared with Congressional Republicans to announce the introduction of the Repeal Amendment, which would allow states to repeal federal laws under certain conditions.

So it's stunning that Prof. Barnett has written two pieces today on the unconstitutionality of any federally enacted tort reform, beginning with H.R. 5, the Republican-sponsored "HEALTH Act," which would severely limit all health care-related lawsuits. In an op-ed appearing in the Sunday edition of the Washington Examiner, Prof. Barnett wrote:

Congress is now considering the "Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011." This bill alters state medical malpractice rules by, for example, placing caps on noneconomic damages. 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. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits. Constitutional law professors have long cynically ridiculed a "fair-weather federalism" that is abandoned whenever it is inconvenient to someone's policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers "reserved to the states" as affirmed by the Tenth Amendment, they will prove my colleagues right.

And in a piece on his blog hosted on the pages of the "Volokh Conspiracy," he added to his objections as follows:

When I first heard that the House was planning on pursuing tort reform, I was skeptical that there was a constitutional basis for this effort at the federal level, but thought maybe there is some legitimate federal power that, if cleverly deployed, could influence tort law at the state level. So I was disappointed when I read the law firm report on which the sponsors of the bill relied for 'constitutional authority.' The report justified the bill under the 'substantial effects doctrine.' Not only does this post-New Deal doctrine extend Congress's power well beyond the regulation of interstate commerce, it does so, not by independently determining whether the activity being regulated actually has a substantial affect on interstate commerce, but instead on whether Congress had a 'rational basis' for believing that it did. Thus does the Court defer to Congress, while the House Republicans -- just like Congressional Democrats -- defer to the Court's assessment of constitutionality. This 'double deference' is one of the secret (to the general public) tricks by which the branches of the federal government can claim to be adhering to the Constitution while actually ignoring it. It is one of the ways important passages of the Constitution's text became 'lost.'

But the 'findings' of the bill are even worse:

"EFFECT ON INTERSTATE COMMERCE"

"Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers."

These 'findings' are based on the effects on interstate commerce, not only of the 'health care and insurance industries,' but also of 'health care liability litigation systems throughout the United States' -- that is, on the affects on interstate commerce of state courts themselves! So Congress has the power to regulate tort law because state courts affect interstate commerce. By this principle, Congress has a general police power over any matter not adjudicated by state common law courts.

Prof. Barnett's logic is irrefutable, if you believe in restoring the original intent of the Constitution and Bill of Rights. If, instead, you adhere to the position that the post-Wickard line of Supreme Court decisions justifies H.R. 5, then... get ready for ObamaCare.

This is an intellectual earthquake. Prof. Barnett's two pieces and the posts and letter by Constitutional conservative Rob Natelson of the Independence Institute trump the theories behind the business community's long war to pre-empt all state laws and courts and deprive us of our Constitutional rights. Now the battle in Congress is fully joined. It's the Founding Fathers vs. the U.S. Chamber. It's the original intent of the Constitution and Bill of Rights to limit Uncle Sam's power vs. new judge-made doctrines expanding Uncle Sam's power. It's the moral authority of principle and conscience vs. the naked power of business-side PAC dollars and scores of lobbyists. If GOP Congressmen and Senators vote their conscience, it'll be no contest. Call your Congressman and tell him to save the Constitution and Bill of Rights by opposing H.R. 5.

But federalism is as much a question of deeds as words. It often takes the form of a concrete decision by this Court that respects the legitimacy of a State's action in an individual case. Here, recognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California's law, not to strike it down. We do not honor federalist principles in their breach.

So wrote that noted champion of the 7th and 10th Amendments, Supreme Court Justice Stephen Breyer, on the last page of a dissent from a majority decision today that pre-empts and overrules California consumer protection law in favor of the Federal Arbitration Act ("FAA"). Yes, I'm joking - I don't see Justice Breyer's name on many lips of Constitutional conservatives or Tea Party websites. And in fact, Justice Breyer has sided with pro-pre-emption Justices in other cases, notably over medical device regulation, a subject I addressed last year. But in the decision announced today in AT&T Mobility LLC v Concepcion, Justice Breyer and the three other Democrat-nominated Justices supported states' rights and dissented from the majority's pre-emption hammer. In so doing, they supported states which want to allow their citizens to exercise their 7th Amendment right to a civil jury trial when trapped by forced arbitration clauses in a consumer contract (in this case, a cell phone contract).

In contrast, each of the Republican-nominated Justices, led by Justice Scalia (who apparently has never met a pro-pre-emption argument he didn't like), struck down California state law and court decisions enabling class action lawsuits against forced arbitration clauses in consumer contracts. So even when a state acts to protect its citizens from such abusive contracts, the FAA trumps the state law. When faced with language in Section 2 of the FAA that should protect states' ability to revoke any contract ("save upon such grounds as exist at law or in equity for the revocation of any contract"), the majority flattens it:

Although §2's saving clause preserves generally applicable contract defenses, nothing in it suggests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA's objectives

So Constitutional principles like states' rights and civil jury trials are "obstacles" to be removed or ignored.

Justice Thomas was the swing vote in this case, but still voted to abandon states' rights. He hesitated before joining the assault by writing a concurring opinion in which he asserts that he adheres to views on pre-emption expressed in a previous opinion, Wyeth v. Levine on the regulation of drugs, but then he "reluctantly" joins the Court's opinion.

The practical impacts of the decision could be enormous. As the dissent notes, it will force an end to many class actions, as few consumers and fewer attorneys will bring an individual case for small amounts of damages. Forced arbitration clauses are now buried in consumer contracts for everything from computers, credit cards and cell phones, to employee handbooks and nursing home admissions contracts. The decision also threatens the rights of employees as well. Employers are increasingly inserting arbitration clauses, with bans on class action suits, into employment contracts. It will be far more difficult for employees to fight discrimination, because they will be unable to file class action suits.

If the 7th and 10th Amendments are to be reinvigorated, Congress will have to take specific and strong action to enable Americans to opt out of forced arbitration clauses in consumer and employment contracts.

I have faith in the people - I have faith in the jury system. It's one of the most important elements of our freedom, and it was so recognized in the Constitution, was felt to be so important, it was specifically put into the Constitution in the 7th Amendment. And I'll tell you, it's a very dangerous thing to take away rights like that from the people... In fact, I can tell you, you have better regulation by juries than you have by federal government regulators - it's more effective.

Rep. John Duncan, Jr., Republican from Tennessee, said that on Monday when he was interviewed by Christian broadcaster Terry Lowry on the What's Up radio show, which is broadcast on 12 stations in 10 states, thanks in part to co-sponsorship by the American Association of Justice. I've met with Rep. Duncan several times this year, and his allegiance to Constitutional principles of limited government is clear and consistent. He enjoys discussing his career in Tennessee as a trial lawyer, and how he helped plaintiffs to exercise their 7th Amendment right to a civil jury trial. On "What's Up," he discussed this issue and the deterioration of states' rights over the past several decades and called for their rejuvenation.

Terry Lowry asked Rep. Duncan for his opinion of H.R. 5, the bill to severely limit civil suits against all health care-related businesses, including nursing homes and insurance companies. Rep. Duncan said it's a bad idea, and he discussed his faith in the jury system, in the people who sit on local juries, and explicitly in the 7th Amendment ("one of the most important elements of our freedom"). He decried the steady reduction in the steady number of jury trials in recent years, a topic on which I posted last year. And he reiterated what the Founding Fathers always knew, that local juries are more effective in controlling egregious behavior than any federal regulator.

UPDATE: You can download and listen to the entire interview with Rep. Duncan from the What's Up website (MP3 file).

Rep. Duncan is a true Constitutional conservative and patriot, and his constituents are blessed to have such a man represent them in Congress.

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

James Madison, Speech to Congress, June 8, 1789

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

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

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

Other pertinent quotes include the following:

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

OR

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

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

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

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

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

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