Amending Constitution to Save States Rights Might Also Save Civil Jury Trials

The National Convention of the Federalist Society included a debate over how to protect the powers reserved in the 10th Amendment for the states. One proposal offered by participants was to hold a Constitutional convention to expressly limit the federal government’s powers and rejuvenate states’ rights. The Federalist Society’s blog summarizes the pro-convention/amendment position as follows: “Prof. Michael Stokes Paulsen of St. Thomas Law School argued that Congress had overstepped its constitutional bounds to the extent that the only way to remedy its intrusion into the authority of the states was for the states to call a convention to amend the Constitution. Both he and former Texas solicitor general R. Ted Cruz called for such a convention as a real possibility in the aftermath of the last election. Cruz argued that amendments produced by such a convention should include a balanced budget amendment, a supermajority requirement for raising taxes, and giving the President the line-item veto.” You can see the video of the debate on the Convention website. Meanwhile, a Washington Post story on the debate notes the ambivalence or outright opposition of some GOP Establishment icons to a convention and amendment.

Sign me up for that convention and the amendment!! After all, the states’ rights enumerated in the 10th Amendment and the right enumerated in the 7th Amendment (for a jury trial for civil suits) are joined at the hip. The 10th Amendment is, in effect, the implementing mechanism for 7th Amendment rights. The federal preemption movement has been crushing both simultaneously for years now, by taking over the regulation of such items as pacemakers and financial services while granting immunity from civil suits to the affected industries. Much of the business community represented in Washington by the U.S. Chamber of Commerce hypocritically complains about out-of-control regulators while backing federal preemption across the board. It’s no surprise that those inside the GOP elite in Washington who back preemption don’t really want to limit their power to take over states’ functions.

So a Constitutional convention and amendment to limit federal powers, and uphold states’ rights, will inevitably move the needle back towards the Founding Fathers’ express intent to allow citizens to present their civil claims before a local jury of their peers. Let the convention begin!