I know that no one has ever accused Texas Governor Rick Perry of being a constitutional scholar. (Even Republicans will agree with that.) He has argued in his book that Social Security is unconstitutional, for example. And like many Republicans who have decided that American juries are not capable of making intelligent decisions, he wants what is now misleadingly called “tort reform” — a bunch of laws that the business interests want passed to keep injured people from being able to sue for reasonable compensatory damages. In the CNN-Tea Party Express Republican debate on September 12, Perry argued that we needed a federal tort reform system, taking tort reform out of the hands of the states (where these issues have been decided for 220 years).
…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.
As it happens, most legal scholars, and even a long list of Republican politicians, think that most of the kinds of “federal tort reform laws” that have been proposed would be an unconstitutional abridgement of states’ rights. Look at former Texas judge and current Congressman Ted Poe; Rep. Ron Paul; Sen. Tom Coburn; Virginia’s own Tea Party favorite Rep. Morgan Griffith (9th District); and veteran Rep. John Duncan of Tennessee. One of the founders of the Tea Party Patriots, Mark Meckler of Texas, also says that tort law is a province of the states. The bi-partisan National Conference of State Legislators, sent a letter to Congress, warning it that enacting federal tort reform would violate states’ rights.
First, let’s look at what most people are talking about when they are talking about tort reform:
- Limits on damages — Virginia already limits punitive damages to $350,000, and has a cap on medical malpractice damages. Many other states also have caps on damages, but some business interests want a federal bill so that they only have to lobby in Washington; they wouldn’t have to lobby in Richmond, or Harrisburg, Pennsylvania, or Santa Fe, New Mexico.
- Changing the law on joint and several liability — If three different wrong-doers are sued for $5 million, and the first two each settle their cases with the plaintiff for $500,000, the third defendant can end up in court being sued, in effect, for $4 million. But it’s the same injury as the one that was settled for $500,000 from the other two. The principal of “joint and several liability” says that if you are one of three people who helped to injury someone, you are each liable for all of the damages, unless you have a release from the plaintiff. So the first two would pay their money and sign a release, and would perhaps testify at trial that the third person was the one who was really at fault. Then the third person might get hammered at trial. This puts great pressure on companies to settle.
- Eliminating jury trials — Some business interests have complained that juries aren’t smart enough to figure out the technical issues in cases involving modern science, or they are too easily swayed, or for some other reason they should not be trusted with making decisions that might affect millions of dollars.
They want federal legislation on these fronts.
The irony is that Republicans have often held themselves out as being protectors of the rights of states to go their own way on certain things. For example, Mitt Romney set up a health insurance program when he was Governor of Massachusetts. Under our federalist system, it is entirely appropriate for them to do so. The principle of federalism is enshrined in the Constitution as part of the Tenth Amendment:
The 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.
So Rick Perry’s comments are essentially the flip side of the Republican argument as to why the Affordable Health Care Act should be struck down. In the case of the health care bill, the complaint is that it centralizes the power in the federal government. But here, the Republican argument is to take power away from the states and give it to the federal government. If Eric Cantor and Ken Cuccinelli and the Tea Party branch of the Republican Party were to prevail on their Supreme Court arguments, this proposed tort reform would clearly be unconstitutional.
And then there is the Seventh Amendment:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Note that there is no exception — “unless it’s a really tough case…” or “unless it is affecting my stock portfolio.” James Madison, one of the authors of most of the Constitution, warned 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 regarded trial by jury in all cases as “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” So Perry’s proposal is a proposal to ignore the Tenth Amendment to effectively amend the Seventh Amendment without going through the process that they know they would lose. But surely the Tenth Amendment doesn’t prohibit things that conservatives want — just things that liberals want. Conservatives like Rick Perry who think that “tort reform” can be limited to just medical malpractice cases are dreaming. If the federal government has the power to ignore the Tenth Amendment on tort reform, how about ignoring it when it comes to health care reform?
In essence, Perry wasn’t really responding to, or making, subtle Constitutional arguments. He was engaged in what has been called “dog whistle politics.” His cry for tort reform is an effort to bring conservatives out of the woodwork to help him. He felt the criticism that he was taking from the other candidates. He went for the big applause line – “kill all the lawyers.”
Ideas have consequences. We now know that Rick Perry has been unmasked as a a phony “states’ righter” and as a flip-flopper 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; he’s a classic “crony capitalist.”
If Madison and Jefferson were right — that jury trials are important pieces of our democracy to protect against big government — Perry and his friends should stop trying to change the Seventh and Tenth Amendments and stick to defending the Constitution. As it was written.