A libertarian's misplaced attack on the Constitution

By Ken Connor

"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." Thomas Jefferson

American conservatives are generally associated with a "strict constructionist" view of the U.S. Constitution. They believe America's founding legal document should be interpreted in accordance with the original intent of the Framers when the document was ratified by the original States. They believe that the principles embodied by our Constitution are reflective of a nation rooted in the virtues of human dignity and individual liberty. These principles include the freedom to speak, write, congregate and worship freely, the right to own property, the right to bear arms in defense of person and property, and the right to conduct business legally and ethically in a free market economy. In short, conservatives subscribe to the idea that the Constitution exists to protect and preserve Americans' rights to protect their lives, exercise their liberty, and pursue their happiness.

Somehow along the way, however, many conservatives have lost an appreciation for one of the most fundamental rights of America's political heritage — a right believed to be so important to preserving ordered liberty in the fledgling republic that was included in the Bill of Rights, the first ten amendments to the U.S. Constitution. This much maligned right is set forth in the Seventh Amendment, which states that "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."

Of course, the concept of "innocent until proven guilty" is not an unfamiliar principle in the American political lexicon, nor is the idea that a person accused of a crime has a right to stand trial before a jury of his or her peers. Few Americans, regardless of their political affiliation, would dispute the justice of this principle. The Seventh Amendment, however, is not referring to criminal suits, but civil ones. All too often, however, the only kind of attention this constitutional right gets from conservatives is via attempts to erode it through so-called tort reform.

The term "tort" means a private or civil wrong, with the added implication that the wrongdoer is required to compensate an innocent party for damages suffered as a result of the wrongdoing. At its root, the word "tort" denotes something that is twisted and needs to be put straight. Critics of the tort system say the system itself has become twisted and is in need of straightening out. They point to "frivolous" lawsuits and "unreasonable" verdicts as evidence of the need for reform. They argue that aggressive trial lawyers and runaway juries are driving up the cost of doing business for everyone.

Just this week, John Stossel discussed "the trouble with lawyers" on his libertarian-leaning program on the Fox Business Network. While legitimate complaints can be made about "ambulance chasing" by unscrupulous lawyers, Mr. Stossel, a self-described champion of constitutional principles, seems all too ready to toss the proverbial baby out with the bathwater. In making his case against trial lawyers, Mr. Stossel ignores some of the reasons why America's tort system is a critical ingredient in America's constitutional framework.

These principles are as essential to American society today as they were in the time of our nation's founding:

The tort system affirms basic human dignity and the sanctity of human life. By requiring a wrongdoer to compensate an injured person for the damage caused by a wrongful act, the worth, value, and dignity of every member of society is affirmed. We demonstrate that we take human dignity seriously when, as a society, we guard against encroachments (deliberate or unintentional) by anyone on the dignity or humanity of another. No wrongdoer should be permitted to injure or kill another person with impunity. To hold otherwise undermines society's view of the importance of human dignity and the sanctity of human life.

The tort system promotes responsibility by holding wrongdoers accountable for their actions. Personal accountability is the key to responsible human behavior. We cannot expect people to act in a responsible manner unless we hold them accountable for the consequences of their actions. If we remove accountability for wrongdoing, we encourage people to engage in irresponsible and antisocial behavior. The people who will suffer the most from such behavior will be the weakest and most vulnerable members of our society (i.e., the elderly, the handicapped, and the infirm).

The tort system promotes local control. Through the jury system, people at the local level decide what is reasonable behavior within their own communities. Ordinary citizens, applying a common sense standard of reasonable care, making decisions about acceptable and unacceptable conduct within their community — that is the essence of local government. And, as a result of those decisions, suppliers of goods and services within the marketplace will often modify their own behaviors (i.e., improve health care standards, place guards on dangerous products, protect against discharge of toxic pollutants) without the necessity of yet another costly and intrusive governmental bureaucracy.

The tort system provides for just compensation from wrongdoers and relieves the rest of society of unfair burdens. Fundamental fairness dictates that one who suffers a loss at the hands of a wrongdoer be compensated for the wrong he has suffered. If our system of justice fails to provide just compensation, the victim, or his family, will be inclined to seek personal revenge or retribution. This promotes a spirit of vigilantism and contributes further to the breakdown of social order. Additionally, if the wrongdoer is not required to bear the loss occasioned by his wrongdoing (i.e. medical bills, lost wages, etc.) those losses will have to be borne by the rest of society. When society has to pick up the tab for the losses caused by a wrongdoer, the result is the involuntary redistribution of wealth among persons who are innocent of any wrongdoing. This is just another form of "welfare" which rewards irresponsible behavior and punishes innocent parties.

In the companion article to his segment on lawyers, Mr. Stossel opens with the accusation that "tort lawyers lie":

"They say their product liability suits are good for us. But their lawsuits rarely make our lives better. They make lawyers and a few of their clients better off — but for the majority of us, they make life much worse. . . . Even when the lawyers do help their clients, they hurt everyone else because fear of their lawsuits takes away many good things: Swimming pools, playgrounds and gymnastics programs close because liability insurance is so expensive."

Setting aside for a moment the irony of a libertarian appealing to the "common good" as an argument against a constitutionally-protected right, Stossel is guilty of either willful ignorance or the very duplicity of which he accuses lawyers — or both. Products liability lawsuits have led to huge advances in safety in the airline, auto, and drug industries, to name just a few. Remember Ford Motor Company's exploding Pinto gas tanks and Firestone Tire Company's exploding radial tires? Have we forgotten the devastation wrought by unsafe drugs like Thalidomide and Vioxx and products like the Dalkon Shield? Guess where the impetus for seat belts, airbags and anti-rollover technology came from? Advances in safety in all these areas were the result of lawsuits filed by trial lawyers on behalf of victims who were killed or injured by the negligence of manufacturers. These companies knowingly marketed dangerous products, endangering the health and safety of their customers, until their negligence and malfeasance were exposed and they were forced to render an account through the tort system. Many of the regulations Americans rely on today to keep their families safe and healthy are a result of suits brought against companies that — had they not been forced to implement changes — would have been happy to take chances with their customers lives rather than make costly quality and safety improvements. Any parent whose child has died because of an faulty pool drain or a defective car seat can attest to the fact that product liability suits can and do make a difference in the lives of many.

Of course, it will be readily admitted by this attorney that yes, tort lawyers can, and sometimes do, lie. Unscrupulous attorneys have been known to pursue frivolous claims in hopes of making a fast buck. When that happens, the lawyers and their clients should be sanctioned and made to pay. The American legal system, as all manmade social institutions, is imperfect and sometimes abused. But we should not do away with the constitutional right to trial by jury because of the malfeasance of some lawyers any more than we should do away with the free market due to the recent malfeasance of some on Wall Street. Mr. Stossel, more than anyone, should agree with that.

What this really boils down to, then, is a question of principle. With regard to other questions constitutional, conservatives (and libertarians, for that matter) argue that an exception should not be allowed to undo the rule. We shouldn't revoke the 2nd amendment just because some individuals commit crimes with guns. We shouldn't axe the 1st amendment just because some choose to exercise their free speech in a hateful manner. And we shouldn't do away with the 7th amendment just because some tort lawyers and their clients make frivolous claims in court.

Can we do better? Of course, and there are responsible ways to pursue "reform" in the courts without resorting to ad hominem attacks on lawyers or stripping the American people of their constitutionally protected rights. There is a much bigger principle at stake; one that has been under attack, and one that must be defended honestly and thoughtfully. It's too bad that Mr. Stossel couldn't bring himself to do that.

© Ken Connor