After almost two months of writing posts and Tweets, I’m more concerned than ever that our Constitutional right to jury trials for civil suits is in jeopardy. In my meetings with senior Congressional staff and opinion leaders in Washington, I find almost wholesale ignorance of the text, centuries-long history, and intent of the 7th Amendment to the Constitution. The war by the business community on trial lawyers has overshadowed the clear language of the 7th Amendment, its foundation in the Magna Carta, the obvious intent of the Founding Fathers, and the respect given to civil jury trials by Supreme Court Justices since the ratification of the Bill of Rights. I find little or no mention of the 7th Amendment on websites of political organizations on the left or right, including those of Tea Partiers and Constitutional conservatives. The march by Congress, the federal bureaucracy, and the federal judiciary towards federal preemption of state statutory and common law continues without regard to the impact on our Constitutional rights for local control and accountability through the decisions of a local jury. The essential right to file a complaint in federal court has been compromised by the Supreme Court’s unilateral decisions in the Iqbal and Twombly cases, creating a confusing new standard for pleadings that will worsen with each interpretation by each of the appeals courts. Not just trial lawyers, but a conservative legal review editor, an accomplished attorney for American terrorism victims, and religious liberty advocates are realizing that their favorite causes are ultimately in jeopardy – just read my posts since opening.
The overwhelming majority of Americans don’t know that we sign away our 7th Amendment rights every day in what seem to be normal decisions. If you’ve bought a cell phone, car, computer, digital camera, or high-def TV anytime in the past, say, five years, you’ve agreed to a clause forcing you to accept a mandatory arbitration process that’s stacked against consumers, with no transcript or appeal rights. Our men and women in uniform who are fighting for our freedom automatically lose the 7th Amendment rights held by retired veterans and civilians even when acting in the same circumstances. For instance, a retired vet or civilian who suffers from medical malpractice at the hands of a military doctor on a base can sue the doctor. But a uniformed American – someone who has volunteered to go thousands of miles away to fight terrorism – is barred from filing such a suit, thanks to a 1950 Supreme Court decision. And good luck to any American trying to recover from negligence at the hands of a military contractor with billions of dollars in Defense contracts. Is that really what the Founding Fathers had in mind?
But what we hear in the normal political discourse is that a civil suit and an attempt to move it towards a jury decision is a social evil, a net economic cost or a waste of precious judicial resources. No mention of the Constitution in any of that screed. Well, go search your American history – the Founders had no use for a socio-economic test for the God-given “unalienable rights” enunciated in the Bill of Rights. None. Of course, there’s a cost attached to the 1st Amendment (lousy and biased reporting) and the 2nd Amendment (accidental shootings), but plenty of Americans defend the absolute guarantee of those and other of the Bill of Rights. Not so the 7th Amendment – it’s the “lost amendment.”
A conservative leader told me a few weeks ago that “the 7th Amendment is complex.” Well, no it isn’t tough, it’s just a matter of trust. The Founders trusted local juries over judges, bureaucrats, and even elected politicians. What too many Americans, in and out of Washington, have lost is that trust.