July 21, 2010
"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.
