The newly sworn in Congress today participated in some capitol theatrics today with the reading of the United States Constitution today on the House floor. This comes hot on the heels of a change in House rules that requires every House bill to cite constitutional authority for its enactment. This idea was the brainstorm of Republican Congressman Bob Goodlatte, from Virginia, who stated that “I think it is important that we send a message to people at home that the constitution is important document.”
Very true Mr. Goodlatte, very true. I hope, however, that when it comes to the issue of “tort reform” he can put his money where his mouth is. The idea that a jury of your peers can decide your case in a negligence action, whether it’s against a doctor, a driver, or a big corporation, is an old idea. A very old idea. In fact, it goes back about 800 years to the Magna Carta. It was such a powerful idea our Founding Fathers made sure it was a part of the Bill of Rights, in the 7th Amendment.
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.
Those are heavy-hitters when it comes to Constitutional spirit and meaning. So, Mr. Goodlatte, how important has the 7th Amendment been as of late? Why doesn’t it get nearly as much coverage and attention as the 2nd Amendment?
Well, if you look at the idea of tort reform, you’d think the right to trial by jury was something not all that important, and that you could pretty much ignore a Constitutional Amendment just because you felt like it. When a jury decides an injured person is entitled to damages, based on the evidence presented, that jury’s determination is what the Founding Fathers wanted to be the outcome of the case. Instead, now we have “caps” on damages, basically telling juries (and America), “thanks, so glad you spent hours fulfilling your Constitutional duties but we’ll take over from here.” Tell that to the family who lost a child due to a doctor’s negligence that their emotional pain isn’t determined by a jury, but instead by legislators who were helping their corporate and insurance buddies.
If we’re going to care about the Constitution, we need to care about the Constitution. And when the Founding Fathers say that the right to civil trial by jury is as important as any other right to the preservation of democracy, we shouldn’t allow that right to be diluted in the name of “tort reform.”
Here in Michigan, we have our very own “right to jury” trial in the Michigan Constitution. Section 14 of Article 1 of the 1963 Consitution reads: “The right of trial by jury shall remain, but shall be wavied in all civil cases unless demanded by one of the parties in the manner prescribed by law. In all civil cases tried by 12 jurors a verdict shall be received when 10 jurors agree.” A right to jury trial also existed in the Michigan Constitution of 1850. Some states, such as Arizona, have even gone so far as to say that “No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person.”
It shouldn’t take an additional provision in a Constitution saying “by the way that’s real important.” It’s already IN THE CONSTITUTION. And it matters.