New York Personal Injury Law Blog » Seventh Amendment, tort reform


January 6th, 2011

The New Congress and the Constitution (Will they really defend it?)

Today a Republican majority takes control of the House of Representatives. And their first order of business is to read the Constitution. And they want every new piece of legislation to set forth which part of the Constitution authorizes each bit of legislation.

But will Republicans really follow the Constitution when it comes to tort “reform?” My bet is no, based on a history of Republicans trying to limit consumer access to the courts. One academic favored by the right wing, Richard Epstein, arrogantly refers to the constitutional right to a civil jury trial as a “procedural feature.”

So let’s refresh, a bit, as the new House takes control. The Seventh Amendment states as follows:

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.

Over at the Huffington Post, AAJ President Gibson Vance expands on the history and importance of the right to jury trial in a piece entitled Constitutional Conservatives and the 7th Amendment. He writes:

The right to a trial by jury for civil suits dates back almost 800 years, to the signing of the Magna Carta. Article 39 of the Magna Carta specifically guaranteed the right to a jury trial for civil suits and criminal cases.

Our Founding Fathers also agreed with the importance of a trial by jury. In the words of James Madison, “In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

Perhaps I will be pleasantly surprised and the House of Representatives will stay true to the Constitution. But based on historical precedent, I won’t be holding my breath. For on this issue it is only in theory that the political right believes in less government oversite. When it comes to protecting corporations, they do an about-face to strip rights away from the people.

Bear in mind that there are many tens of millions of dollars that flood into the politics in the legalized bribery system that we have. When politicians are asked to choose between protecting Big Business from lawsuits, and protecting the rights we have in the Constitution, it seems logical to assume that principle will fall by the wayside for many. The Constitution, after all, doesn’t write checks.

(The sketch above comes from the Watergate trial of Haldeman, Erlichman and Mitchell, and hangs on the wall of my office.)