The GOP's selective constitutionalism

By Ken Connor

"[The right to trial by jury is] the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals." Sir William Blackstone, from Commentaries on the Laws of England (1765).

For many years now, America's civil justice system has been on the losing side of the public relations battle. From demonizing lawyers to ridiculing jurors, special interest groups (which include insurance conglomerates, drug companies, and big business cartels) have relentlessly pressured state and federal legislators to enact laws which carry out their agenda. These efforts have led to a myriad of proposed legislative "fixes" that are, ostensibly, aimed at increasing the fairness of our judicial process and lowering the cost of health care. The "solutions" proposed by legislators doing the bidding of these special interest groups include artificial caps on damages, draconian limits on liability, and dramatically shortened periods of time in which suits must be filed. Far from making the system more just and fair, these measures are aimed at insulating wrongdoers from full accountability for their actions while preventing injured parties from obtaining complete redress for the harms they have suffered.

Ironically it is the Republican Party (of which this writer is presently an embarrased member) that is often found leading the charge for "civil justice reform." These self-proclaimed "defenders of the Constitution" have no use for the Seventh Amendment, which protects the right to trial by jury in civil cases. And they pay only lip service to the Ninth and Tenth Amendments, which are aimed at protecting the rights of the people and the states to make policy decisions for themselves without unauthorized interference from the Feds. The most recent example of constitutional hypocrisy being put forward by the party of Lincoln comes from Reps. Phil Gingrey and Lamar Smith in the form of H.R. 5, or the HEALTH Act. Their bill is an affront to the Bill of Rights and would result in the imposition of a federally imposed, top-down, one-size-fits-all, special-interest driven emasculation of fundamental constitutional rights, turning victims of medical malpractice and dangerous drugs into constitutional eunuchs.

This is not the first time we've been down this road. As it happens, the Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2011 is actually the same exact bill that was passed by the House of Representatives in 2005. While these measures may seem like good ideas on paper and make excellent soundbytes (Punish greedy trial lawyers!! Put an end to "defensive medicine!!"), there is little evidence that they will save money, create jobs, or reduce medical errors, as their proponents claim. What is certain is that such legislation will have devastating consequences for individuals and their families whose lives have been literally torn apart by medical negligence, defective drugs, and elder abuse in nursing homes — to name just a few of the acts protected by the proposed legislation.

Among the many troubling provisions of this legislation — including it's sweeping scope, it's flagrant preemption of state law, and it's dramatic reduction of the statute of limitations — is a $250,000 cap on non-economic damages. Non-economic damages exist to compensate individuals who have suffered actual harm in the form of bodily injury, pain and suffering and/or disability as a result of preventable, reckless, and sometimes malicious treatment by wrongdoers. Injuries such as the loss of a spouse or child, the loss of a limb or sight, the loss of mobility, the loss of fertility, excruciating pain and/or permanent and severe disfigurement are not mere inconveniences, they are tragic, life-altering damages that can never be undone. Our Constitution dictates that in such cases it is to be a jury — not politicians acting at the behest of special interest lobbyists — who decides what constitutes fair compensation. Setting an artificial (not to mention arbitrary) cap on such damages which does not take into account the evidence in a particular case punishes the victims of malpractice, dangerous drugs or medical devices and rewards the wrongdoers perpetrating the harm, for whom $250,000 is a mere rounding error on their balance sheets. What's touted as a cost-saving reform, then, is actually an incentive for unscrupulous doctors, drug and insurance companies, and nursing homes to conduct business as usual with no fear of reprisal.

But what's new about politicians doing the bidding of special interests who line their campaign coffers with cash? Could this be the reason congressional approval ratings consistently rank lower than any other branch of government? Rather than applying a common sense, compassionate constitutionalism to the crafting of legislation, special interests drive the policy train. Imagine how the face of American justice will change if our courts begin operating in the same corrupt fashion as our state and federal legislatures. If the special interests have their way, that's just what will happen: The civil justice system will soon begin to look more and more like the Congressional system, where the outcome is determined in advance and the process is just "eye wash" for the public.

Politicians who tilt the civil justice system in favor of the rich and powerful at the expense of justice would do well to heed the words of the prophet Isaiah: "Woe to those who make unjust laws, to those who issue oppressive decrees, to deprive the poor of their rights and withhold justice from the oppressed of my people..." (Isa. 10:1-2, NIV).

Congress should clean up its own act before enacting "reforms" that damage the civil justice system and undermine the constitutional rights of American citizens. Perhaps they should begin by re-reading the Constitution, since it didn't seem to make much of an impression the first time around.

© Ken Connor