Tea Party Legal Expert Rob Natelson Reiterates Unconstitutionality of HR 5

On April 5, I posted on the letter written by Constitutional scholar Rob Natelson to Congress, that “H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments.” That bill would place new federal limits on lawsuits filed against a broad range of health care-related companies, including doctors, hospitals, drug & device companies, insurance companies, and nursing homes. It would also impose a federal wage scale on attorneys involved in those cases. Professor Natelson is an expert on the Founding Era; a former Republican candidate for Governor of Montana; and now Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Colorado, a non-partisan, free-market-oriented public policy research organization.

Among his other points was a direct criticism of a section in H.R. 5 which purports to protect states’ rights. Natelson doesn’t buy it: “Moreover, the section grants protection only when the state undertakes policy choices preferred by Congress. Thus, state laws that offer ‘greater… protections for health care providers’ are preserved, while those that offer less are overridden. States that enact statutory caps on damages receive protection, while those that make the traditional common law choice — leaving the amount to jury and judge — receive no protection. The section is, in other words, more in the nature of an insult to the states than a protection of federalism.

Rob Natelson reiterated his opposition to H.R. 5 yesterday, in a new post on his website, the Electric City Weblog. I quote:

Yet, as incredible as it may seem, in light of the message send by the 2010 elections, Congress continues to consider bills to expand government. A good example is HR 5, which if enacted, would be a massive intrusion into the state court systems. (sic)

Up till now the state courts have been one of the few areas of life relatively untouched by federal meddling. That is as it was supposed to be: State court systems are central to state sovereignty. Moreover, the Constitution reserves most issues of civil and criminal justice to the exclusive authority of the states, rather than the federal government. When the Constitution was being considered, its supporters said explicitly that state court systems are constitutionally out-of-bounds for Congress.

All members of Congress take an oath to uphold the Constitution. Many Republican members were elected after specifically pledging to honor constitutional limits. You would think they would honor their word for at least a few months. But just weeks after their swearing-in, over 100 members (mostly Republicans) had signed onto HR 5.

HR 5 is advertised as addressing abusive lawsuits against physicians, but it goes far beyond that. It would regulate in detail just about every American lawsuit that has anything to do with health care: What an injured party can allege in his or her initial filing, the damages he or she can recover, how damages are disbursed, burdens of proof, what the jury may and may not consider, which state laws survive and which don’t. HR 5 even directs state judges to conceal pertinent information from the jury.

It’s not certain the Supreme Court would uphold all of this bill. But it is certainly a flagrant invasion of local control.

Here’s a real irony: The Republicans supporting HR 5 justify it by parroting exactly the same ridiculous “Commerce Clause” claims the President uses to justify ObamaCare. (Emphasis mine.)

Of course, it’s not like Congress doesn’t have anything else to do. It has its hands more than full trying to rescue the country from a financial train wreck. Congress should be concentrating on cutting the federal deficit, which this year will approach 45% of expenditures. It should de-fund organizations that essentially lobby on the taxpayers’ money. It should encourage economic growth (and thereby increase revenues) by reforming the tax code to close loopholes and cut rates.

Similarly, Congress could allow states to contract with each other to opt out of ObamaCare. Most important of all, it could propose constitutional amendments to term-limit members of Congress and require a balanced budget. In the 1990s, Congress came within one vote of sending a balanced budget amendment to the states. If it had done so we would not be in the fiscal mess we are today.

If the congressional leaders can’t find the two-thirds majority needed in each house to propose an amendment, they could encourage the states to use the alternative procedure the Constitution gives the states for proposing amendments.

Tea Party folks who thought they save the country around in one election are learning that we have a very long road ahead.

Which Rick Perry Will Run For President

Texas Governor Rick Perry is putting a Presidential campaign in place, and I assume he’ll run. But which Rick Perry will we see? Will we see the Rick Perry who cherishes and honors the 10th Amendment as the vehicle for protecting states’ rights – the one who is willing to honor a state’s decisions even when it might interfere with his personal views? Or will we see the Rick Perry who continues to brag about Texas-style tort reform, as it it’s a nationwide solution, even though federal tort reform is clearly a breach of the 10th Amendment and states’ rights? On July 23, I asked whether he would stand against federal tort reform as a true Constitutional conservative, and what I’ve seen since then hasn’t lessened my curiosity or concern.

Both Rick Perrys were on display on July 30, when he addressed the Western Conservative Forum in Colorado. He began the substantive part of the speech by proposing that Washington “has intruded upon the rights of the states and individuals to make decisions about our own healthcare, our businesses, our money,…” all pure pro-10th Amendment, anti-ObamaCare talk. Terrific! And then he described the Constitutional limits on the federal government, and he read the entire 10th Amendment. Great, love it! But then he talked about the Texas model for economic success, which includes tort reform “so frivolous lawsuits don’t paralyze employers…” He never specifically called for a one-size-fits-all, federally mandated takeover of state civil justice systems, but he left the obvious impression that he would take that idea forward, with no consideration of the rights of states or individuals. And in his book, “Fed Up,” Governor Perry says that Republicans stand for ending frivolous lawsuits through “real tort reform,” again with no thought for the Founding Fathers’ respect for civil jury trials.

So while Governor Perry hasn’t specifically called for Uncle Sam to run over the 7th Amendment right of individual Americans to seek a civil jury trial, or or pre-empt the 10th Amendment right of states to run their own courtrooms, it’s obvious that he hasn’t read what’s already been said on the issue by Reps. Ron Paul and Ted Poe; Sen. Tom Coburn; anti-ObamaCare Prof. Randy Barnett and six other experts on the Constitution; Mark Meckler; pro-life activist Ken Connor; and the nation’s largest group of state legislators. All of them say that Texas-style tort reform is unconstitutional on the federal level. There are no group of legal experts who say otherwise now.

The country doesn’t need a part-time Constitutional conservative – we have enough of those. I hope Governor Perry makes a strong statement of his pure commitment to Constitutional rights before he starts the campaign.

P.S. To all of you who attended the WCF and applauded loudly at Gov. Perry’s comments on tort reform, I can only say that you’re not real Constitutional conservatives… yet.

Federal Tort Reform Ideas Lost in Obamacare Decision

In the Obamacare decision on Thursday, the five conservative Supreme Court Justices rejected the unlimited scope of the Commerce Clause and the Necessary & Proper Clause envisioned by proponents of federal tort reform bills (especially caps on damages in medical malpractice lawsuits). Justice Roberts was especially deferential to federalism, employing the terms “state sovereignty” and “enumerated powers” often in his decision. Proponents of federal tort reform are among the big losers in the Obamacare decision.

Moreover, the majority adopted the framework for decisions on both clauses as proposed in amici briefs or articles by numerous anti-Obamacare legal experts, such as Profs. Randy Barnett and Ilya Somin; Virginia AG Ken Cuccinelli; Rob Natelson of the Independence Institute and Tenth Amendment Center; Prof. John Baker of LSU and Catholic University Law Schools; Carrie Severino of the Judicial Crisis Network; and Senator Mike Lee.

Each of the conservative and libertarian legal experts cited above are anti-Obamacare AND anti-federal tort reform. They know that Obamacare and federal tort reform, especially H.R. 5, the bill to cap medmal damages, are the “Wickard Twins,” equally based on the 1942 Wickard v Filburn decision by the Supreme Court. The decision, cited numerous times in the Obamacare decision by all of the Justices, led to the explosion in the scope of the Commerce Clause that finally ended with the Obamacare ruling.

And other legal experts, particularly Rob Natelson, have written frequently that the Necessary & Proper Clause doesn’t create additional powers for Congress; it enables Congress to exercise those powers which are merely “incidental” to Congress’s enumerated powers. The conservative majority adopted that view in toto, thus further limiting the constitutional basis for federal laws designed to take over state tort law and courtrooms.

So any Congressman or Senator looking for support from Randy Barnett, or any of the other experts cited above, for federal tort reform is in for a rude awakening. They’ve already warned Republican leaders that federal tort reform, especially medmal caps, are just as unconstitutional as Obamacare, for the same reasons. Those leaders just don’t want to listen.

Here are illustrative quotes in Justice Roberts’ rulings on the Commerce Clause and the Necessary & Proper Clause, equally applicable to any federal scheme to take over state tort law:

State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992). Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293(J. Madison)..”

The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.”

The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”

Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power…The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power… Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it.”

November 16 Capitol Hill Panel on Sharia vs The Constitution

On November 16. the Center for Security Policy, the 7th Amendment Advocate and The Legal Project of the Middle East Forum presented a discussion on Capitol Hill entitled, “Shariah vs. the Constitution.” Opening remarks on that topic was the event’s sponsor, Rep. Doug Lamborn. The panel featured David Yerushalmi, General Counsel, Center for Security Policy; Daniel Huff of The Legal Project of the Middle East Forum; and me. The Center for Security Policy’s Frank Gaffney moderated the panel and led the discussion. The panel was my idea and followed the debate over the decision by New York City zoning officials to allow Imam Rauf to build his mosque near Ground Zero.

I presented the history and purpose of the right to a jury trial for civil and criminal cases, starting in ancient times, through the signing of the Magna Carta and centuries of British law, to recognition in the founding documents of the United States. I contrasted American constitutional law with the principles of sharia justice, in which there are no juries and little resemblance to the official Federal Rules of Civil and Criminal Procedure in use in the United States today. As a warning to participants, I discussed the confusing judicial systems in use in Malaysia, in which some Muslim communities are allowed to apply various forms of sharia law in their courtrooms, while non-Muslim areas employ traditional procedural norms that provide the types of safeguards provided in 800 years of American and British law. As I posted on September 8 and on August 30, Sharia civil and criminal procedure – if you can call it that – is clearly incompatible with the right to jury trials protected in the Bill of Rights. American judges must resist any notion that they should compromise the Constitution to appease Muslims or any other faith.

The Center for Security Policy has posted a video of the panel on its Secure Freedom YouTube channel. I will post a transcript or link to a transcript when it becomes available. I appreciate the opportunity to participate in the panel and hope we can conduct a repeat performance for new Members of Congress and other audiences early next year.

President of Trial Lawyers Group Promotes 7th Amendment at Federalist Society Convention updated with video link

The last Showcase Panel at this year’s National Convention of the Federalist Society focused on “Ideas for Structural Change,” including “reviving the right to civil jury trials.” Among the panel participants was Gibson Vance, shareholder at the Beasley Allen law firm and current President of the American Association for Justice (AAJ), the largest trial lawyers’ association in the world. He spoke on AAJ’s dedication to promoting the 7th Amendment, the importance of the 7th Amendment to plaintiffs across the country and current dangers to our unalienable right to civil jury trials. I’ve attached the full text of his remarks here. UPDATE: The Federalist Society posted video and audio of the panel here, and Gibson Vance’s remarks begin around the 44-minute mark.

Here are selected quotes from Gibson Vance’s remarks:

“Many organizations in Washington support various issues, but we care about only one: supporting and defending the 7th Amendment to the Constitution…. the Right to a Trial by Jury. The 7th Amendment guides every position we take. The issues we support, as well as the one’s we oppose, are all based on their consistency with the spirit and intent of the 7th Amendment.”

“The right to a trial by jury for civil suits dates almost 800 years, to the signing of the Magna Carta. Article 39 of the Magna Carta specifically guaranteed the right to a jury trial for civil suits and criminal cases, and our Founding Fathers also agreed with the importance of a trial by jury. In the words of James Madison, whose silhouette is your symbol, (said,) ‘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.'”

“Pre-dispute, mandatory, binding arbitration, directly endangers the 7th Amendment. Recently, my family placed my 98-year-old Grandmother in a nursing home. During the admissions process, the first document we were asked to sign had nothing to do with my Grandmother’s health, treatment, or even the cost of her care…it was a forced arbitration clause, waiving her right to a jury trial for any and all acts…including wrongful death. Certainly this is not what our forefather’s had in mind. The pre-dispute forced arbitration process, found in virtually all consumer and employment contracts, is very often skewed in favor of corporations and against the interest of consumers and employees.”

“Today, I present a challenge: for those in attendance who may support so-called “tort reform,” please consider how this conflicts with the principles of limited government you also promote. In many ways, the concept of ‘tort reform’ is an assault on states’ rights and individual freedom.”

“My ultimate goal as president of AAJ is to raise the profile of the 7th Amendment. Americans universally know that the 2nd Amendment protects the right of the people to bear arms. Our Founding Fathers had no intention of making the 2nd Amendment more or less important than the 7th, or any other part of the Bill of Rights. It is up to groups like AAJ, and the Federalist Society, to educate lawmakers, the legal community, and the public that we cannot pick and choose which parts of the Constitution to follow or to ignore.”

Medical Damage Caps in GOP Budget Proposal Trample on Constitution Bill of Rights

The U.S. House Budget Committee Chairman, Rep. Paul Ryan, unveiled a budget proposal designed to cut trillions in federal spending and the deficit. Inside the 73-page proposal, in a section titled, “Fulfilling the Mission of Health And Retirement Security For All Americans,” is a short paragraph which would cap non-economic damages in medical liability cases:

Ensure that the cost of frivolous litigation is not passed on to consumers in the form of higher health-care premiums by capping non-economic damages in medical liability lawsuits. (Page 44.)

I’m always searching the writings of the Founding Fathers to write on their devotion to the unalienable right to bring civil suits before a local jury of our peers, as guaranteed by the Seventh Amendment to the Constitution and centuries of American and pre-colonial British law. My work has taken a turn into the development of the Commerce Clause and the interaction of that clause with the Bill of Rights, including not just the Seventh, but also the Tenth Amendment on states’ rights. In that regard, a quote by a delegate to the Constitutional convention in 1787 and voted to ratify Constitution, who later served as a historic Chief Justice of the Supreme Court, is pertinent to any discussion of the meaning and scope of the Commerce Clause. Chief Justice John Marshall established the Supreme Court’s initial interpretation of the Commerce Clause in Gibbons v. Ogden, 22 U.S. 1 (1824). Many politicians and commentators argue that Gibbons supports an expansive reading of the Commerce Clause in order to support their political views for pre-emption of state laws and courts (many Republicans) or for ObamaCare (many Democrats), but they conveniently (or purposefully) overlook one key paragraph of Marshall’s opinion:

That inspection laws may have a remote and considerable influence on commerce will not be denied, but that a power to regulate commerce is the source from which the right to pass them is derived cannot be admitted. The object of inspection laws is to improve the quality of articles produced by the labour of a country, to fit them for exportation, or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce or of commerce among the States, and prepare it for that purpose.They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. (Emphasis mine.)

So Marshall explicitly stated that “health laws of every description” are reserved for the states and should never be the subject of federal legislation. Marshall’s express limitation on federal power under the Commerce Clause is a key element in an objection to H.R. 5, the bill to limit all health care-related suits, posted on the Independence Institute’s website by Rob Natelson, conservative Constitutional scholar and Senior Fellow in Constitutional Jurisprudence at the Institute. Natelson wrote to Congress with a complete Constitutional analysis of the bill, which you can download from here (4.7MB Acrobat file). I posted a short summary of that bill here on Tuesday. But a particular quote merits special attention:

In the Constitution, the word “Commerce” encompasses trade in goods among merchants and certain related activities, such as commercial paper, transportation, and cargo insurance. It does not include other economic activities, and it certainly does not include health care or the states’ administration of civil justice.

I urge readers to send their Congressman, especially any Republican, a copy of the Natelson letter to prove to them that a highly respected Tea Party-side Constitutional scholar condemns Congressional efforts at “tort reform,” and not just over health care-related cases.

GOP Establishment vs Tea Party Not That Simple

Columnist Timothy Carney of the Washington Examiner, who has a strong following among conservatives, has followed the “K Street Republicans vs. Tea Party” for several years and wrote again about the conflict last week. And Carney identifies some of the practical points of conflict between the two groups: “The GOP establishment rallies industry donors behind the Republican seen as stronger in November. A deeper reason: The revolving-door clique of K Street and Capitol Hill operatives needs Republicans elected to upper chamber who are likely to play ball.”

That’s all true, but it’s not complete. Industry-side Republicans just see the world differently than people like me and Tea Party allies, such as Judson Phillips or Jenny Beth Martin, who lead and populate the grassroots Tea Party groups, or Rob Natelson and Randy Barnett, who write about the constitutional bases for rolling back Obamacare and limiting the size of the federal government. The pro-Wall Street or U.S. Chamber types, such as the Koch brothers’ groups and lobbyists, don’t really see the imperative to radically reduce the size and scope of the mechanisms created over the past 50 years to regulate the everyday activities of the American people. They would be perfectly satisfied if the EPA, CPSC, and FDA were forever oriented to be pro-business. They don’t care about the historical or constitutional arguments by the Founding Fathers for the right to a civil jury trial. That side of the Republican Party “talks the talk” of limited government but actually fights for federal pre-emption of state laws and courtrooms in almost every aspect of commerce, from products liability law to medical malpractice lawsuits to financial services regulation. That’s the difference I see. I’m as pro-business as any of the Kochs towards taxes (too high), overt federal regulation that kills job creation (too much), Obamacare (the worst) and so on. We just fundamentally see the role of the civil jury trial and state courtrooms very differently. The Seventh and Tenth Amendments never enter into their discussions. That’s why they argue for H.R. 5, a federal medical malpractice bill, with no citation to any recent constitutional scholarship, while I can point to the writings of numerous respected scholars and like-minded Republicans who know that bill is unconstitutional.

And not all politicians or groups who proclaim themselves as “Tea Party” are really Tea Partiers. The Club for Growth, one such “Tea Party group” named in the Carney article, has asked prospective candidates for their views on federal tort reform and, I assume is for that concept, regardless of its unconstitutionality. Numerous Republican politicians who pass themselves off as “Tea Partiers” or “constitutional conservatives,” starting with many Congressional Republican leaders, are pro-federal tort reform in order to bash trial lawyers and collect campaign contributions from business. It’s an old habit that dies hard.

Fortunately a growing number of Republican politicians, at all levels of government, are recognizing the reality that federal power isn’t unlimited and all ten amendments in the Bill of Rights are worth protecting in law. I’ve personally seen a number of Republican politicians take a step back from the tort reform agenda and re-evaluate their position upon reading statements by experts they admire, such as Randy Barnett or Sens. Coburn and Lee. The mission for those of us seeking constitutional consistency inside the Republican Party is to persevere, support and convert those open to rational discussion, and recruit candidates to support limited government and constitutional rights before they become committed otherwise. And we have to differentiate between the phony and the real constitutional conservatives.

Happy Birthday James Madison Father of the 7th Amendment

Today is the 260th anniversary of the birth of James Madison, fourth President of the United States, principal author of the Constitution and Bill of Rights, the latter of which merits him the title of “Father of the 7th Amendment.” Today at Montpelier, his birthplace in Virginia and lifetime home, they’re celebrating by unveiling an historical marker in honor of First Lady Dolley Madison, and by holding a wreath-laying ceremony at President Madison’s grave. And so it is fitting and proper to remember the following:

James Madison loved civil suits. He considered the right to a jury trial for civil suits equal in importance to each and every right in the Bill of Rights, including the freedoms of speech, assembly and religion; the right to bear arms; the right to a jury trial for criminal cases; and the right for the states and the people to exercise those powers neither delegated to the United States not prohibited to the states and people. And James Madison NEVER, EVER, proposed anything close to the subversion of civil jury trial rights through the application of the Supremacy or Commerce Clauses.

Madison wrote the text of the 7th Amendment, posted above in the website banner, as well as the following categorical endorsement of the right to a jury trial for civil suits: “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.”

Two years ago on this anniversary, Steven Waldman, the Editor-in-Chief, President & Co-Founder of Beliefnet.com , the largest faith and spirituality website, wrote a terrific piece on the Wall Street Journal describing Madison’s love of religious liberty and his strenuous efforts to protect it in the Bill of Rights. Madison knew full well, from the history of the British people, that one peaceful way to ensure the free exercise of religion would be to sue anybody who would infringe upon that right, and have that claim heard before a local jury of peers. He knew that Article 39 of the Magna Carta guaranteed that right, and he knew that the British drifted away from their rights during the years of the Star Chamber. When George Mason and other patriots objected to the ratification of the Constitution without a Bill of Rights, he wanted to ensure that all Americans would recognize and protect their unalienable rights. So after the states ratified the Constitution, he introduced 17 amendments in the first Congress, of which ten were ultimately ratified.

James Madison would oppose every pro-“tort reform” bill proposed in Congress, period. No one can convince me otherwise.

Our Most Unknown Ignored Endangered Constitutional Right

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.

Mitt Romney Pledges to Protect States Rights In Health Care Policies

What I would do is keep, as we have today, state responsibility for those that are uninsured. You see I believe in the 10th Amendment. I believe the states have responsibility to care for their people in the way they feel best.

So said Mitt Romney, Republican candidate for President, in his most detailed speech on health care policy to date. Speaking in Orlando under a banner announcing, “Repeal & Replace Obamacare,” Romney pledged to replace Obamacare in several steps. Most importantly for my purposes, here is what Mitt Romney did and did not do yesterday:

He pledged to uphold and protect the 10th Amendment in all of his health care policy decisions.

He did not criticize Americans for exercising their 7th Amendment right to ask a jury to hold health care professionals responsible for deadly medical errors. He didn’t even mention civil suits.

He was not inconsistent or hypocritical with the 10th Amendment by simultaneously proposing to crush states’ and individual rights by instituting unconstitutional federal medmal limits.

He did not back the efforts by health care companies, their associations, or their Beltway allies to enact such laws.

He did not promise to reward the pro-Obamacare health care associations, the very groups that shoved Obamacare down our throats through their secret deals and lobbying, with another special deal to immunize them from civil liability.

He did not associate himself with the doctors in Congress who are trying to enact special interest legislation to protect their industry from accountability and responsibility through federal tort reform.

And he did not commit to using a phony CBO estimate of budget “savings” from medical malpractice limits as a way to pay for other budget items.

Now I know that as Massachusetts Governor, Mitt Romney enacted statewide limits on awards in medical malpractice lawsuits.

I also know that his campaign website includes a proposal to “Cap non-economic damages in medical malpractice lawsuits.”


Is it the self-proclaimed protector of states’ rights? Or is it the former governor who unabashedly closed state courthouse doors to victims of deadly medical errors? Will he convert into a true federalist?

I convert Republicans in Washington into consistent states’ rights advocates. I show them what their own favorite constitutional experts say about the unconstitutionality of federal tort reform. I don’t have to say much. I’ve seen it work time and again.

Mitt Romney? We’ll see…

Brett Emison Did You Know State Supreme Courts Routinely Find Tort Reform Damage Caps Unconstitutional

Today I read an outstanding post on the Injury Board Blog Network by Brett Emison of the Langdon & Emison law firm in Missouri, about the numerous state Supreme Courts which have struck down attempts to restrict the right to trial by jury as infringements on fundamental constitutional rights. The Injury Board’s Tom Young and Brett Emison gave me permission to re-post it here. Here are the highlights, and I urge you to read the entire post:

Wisconsin: In 2005, the Supreme Court of Wisconsin held the state’s $350,000 non-economic damages cap was an unconstitutional violation of the equal protection clause of Wisconsin’s constitution. Ferndon v. Wisconsin Patient’s Compensation Fund, 701 N.W.2d 440 (Wisc. 2005)…

Ultimately the Court ruled Wisconsin’s cap was “arbitrary and create[d] an undue hardship on a small unfortunate group of plaintiffs.” Id. at 466. There was no rational basis for this brand of “tort reform”. The non-economic damage cap was not rationally related to any of the following:

— Non-economic cap not rationally related to compensating victims fairly

— Non-economic cap not rationally related to lowering medical malpractice insurance premiums

— Non-economic cap not rationally related to maintaining the Wisconsin Patient’s Compensation Fund

–Non-economic cap not rationally related to lowering overall health care costs for consumers

— Non-economic cap not rationally related to ensuring quality health care

Georgia: Georgia passed its own “tort reform” legislation in 2005, also enacting a $350,000 non-economic damage cap. In a unanimous decision the Supreme Court of Georgia ruled that the “tort reform” legislation violated the constitutional right to trial by jury…

The Georgia Court found that the non-economic cap unconstitutionally infringed on the right to trial by jury because the cap arbitrarily disregards the jury’s findings and undermines the jury’s basic function. Atlanta Oculoplastic Surgery v. Nestlehutt, 691 S.E.2d 218, 223 (Ga. 2010). Moreover, the fact that the cap permits full recovery up to $350,000 cannot save the “tort reform” from constitutional attack…

The Georgia decision confirms that you can’t violate the constitution “just a little”. You either violate the constitution or you do not. An arbitrary reduction of the jury’s award, no matter how small or what the amount, is an unconstitutional encroachment on the right to trial by jury.

Illinois: In 2010, the Supreme Court of Illinois struck down the Illinois non-economic damage cap as an unconstitutional violation of separation of powers. Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010)… The separation of powers clause prohibits one branch of government from exercising powers belonging to another. The Court found that the cap duly encroached on the judiciary’s “sphere of authority” and “impede[d] the courts int he performance of their functions.” Id. at 909, 912.

Washington: In 2006, the Washington legislature enacted “tort reform” which required plaintiffs in medical malpractice cases to provide 90 days’ notice of the plaintiff’s intention to file a lawsuit. The Washington Supreme Court found the “tort reform” law to be an unconstitutional violation of separation of powers. Waples v. Yi, 234 P.3d 187, 195 (Wash. 2010).

West Virginia: Though West Virginia’s Supreme Court upheld a $500,000 non-economic damage cap earlier this year, a powerful dissent by Judge Wilson illustrates why the Court got it wrong.

Not affecting fundamental rights? The right to a trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial?

The Court’s degrading of the right of a jury trial in a civil case in West Virginia is in square conflict with the United States Constitution. The phrases used in the United States Constitution and the West Virginia Constitution for granting the right to a civil jury trial are almost identical. For our Supreme Court to suggest that the right to a jury trial in West Virginia is not as great as that in another state that uses the phrase ‘the right to trial by jury shall remain inviolate’ in its constitution makes no sense.

This case is about what has already happened to the malpractice victims in the three West Virginia cases that challenged the constitutionality of the malpractice cap. These are real people who deserved more when they pursued justice in our West Virginia courts.”

Caps on damages and other hurdles effectively shut the courthouse doors for many and fundamentally restricts their constitutional right to trial. The 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why it’s not just democrats and trial lawyers standing up for this fundamental freedom, but also constitutional conservatives who oppose attacks on 7th Amendment rights through tort reform.

“Tort reform” protects and rewards negligent actors and makes us all less safe. It also undermines our most important constitutional safeguard. As the Georgia Supreme Court said, “tort reform” “clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function.”

What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

Tort “reforms” also have the perverse effect of bloating federal government and penalizing taxpayers through government funded bailouts of negligent actors. Imagine someone is paralyzed by a defective product, a negligent doctor or a drunk driver. Tort reform either excludes the plaintiff completely from the court system or limits the recovery to only a portion of the plaintiff’s actual life care needs. The bad actor is relieved of personal (or corporate responsibility) and the burdens of the bad actions are borne by taxpayers in the form of Medicare, Medicaid and disability payments.

Many Conservative Groups Already Co-Opted Out of Defending 7th Amendment Rights

Two weeks ago, Ken Connor, Chairman of the Center for a Just Society, posted an article on that website and others in which he discussed how top GOP Establishment figures plan on co-opting successful Tea Party Congressional candidates:

Trent Lott, former Senate Majority Leader and current K Street lobbyist, insists that there is no room in Washington fora lot of Jim DeMint disciplesand that the GOP establishment mustco-optany Tea Party candidates who manage to actually win races and make it to Washington. Recognizing the wisdom in the old adagekeep your friends close and your enemies closer,” the major operatives within the Grand Old Party know that the only way to maintain their grip on power is to find a way to keep the troops in line. In the military such control is maintained by the strict adherence to the chain of command. In third world dictatorships such control is maintained through intimidation. In Washington, such control is maintained by money, the mother’s milk of politics. Secure the Tea Party Republicans’ loyalty the old fashioned way, Lott arguesby buying it. By doing so, the Establishment’s agenda will become their agenda.”

But I’ve discovered that the co-opting process has been underway for years, fueled by contributions from the pro-“tort reform” lobby in the business community to numerous “cosnervative” groups across the country, and with major success. Early this year, I began an effort to identify those conventional conservative and faith-based legal foundations which, in my opinion, should be concerned that their access to civil justice has been severely compromised by the twin Supreme Court rulings in Bell Atlantic v Twombly and Ashcroft v Iqbal. Through those rulings, the Court materially restricted the civil complaint process in federal courts, leading to scores of dismissals without any discovery. One of the editors of the Federalist Society’s official law review has described that change as “bad news” that will increase “arbitrariness” by federal judges and promote “tremendous unpredictability.”

I pursued around 20 of the legal groups and foundations on the right, thinking that they would see the eventual implications for their civil suits to protect religious liberty, gun owners’ rights, parental rights, property rights, and even the rights of the unborn. I was deeply disappointed to find that almost all of the big-name conservative groups – the ones to whom I turn for sound conservative policy advice on many issues – have no knowledge or appreciation of the history, nature, or importance of the 7th Amendment’s guarantee of the God-given right to jury trials for civil suits. The Heritage Foundation, AEI, Cato Institute and others have already signed up to the “tort reform” agenda without any consideration for the unalienable right to a jury trial for civil suits. Moreover, all of the conservative legal foundations across the United States refused to join me, even though key officers in several told me that they were troubled by the sudden change in pleading standards. One counsel of a major conservative legal foundation admitted that he agreed with me, but he knew he couldn’t sell the position to his board, an obvious admission of influence by the business community.

Fortunately, I found some allies among the faith-based legal foundations, who kowtow to no one and are already seeing the Iqbal-Twombly pleading standards invoked against them in their filings. The Alliance Defense Fund not only wrote to Congress to express serious concern over the revised pleading standards, but informed all of its partners in their arena and encouraged them to do the same.

One veteran reporter on Washington, Tim Carney of the Washington Examiner, has already written of the Republican divide between K Street and Tea Party Republicans. I’ve already lived that divide and see that as the fault line for the next 5-10 years in the Republican Party.

It will be up to Constitutional conservatives to fight for each right enumerated in the Bill of Rights without compromise.

Americans Dont Believe CBO Neither Should House Committee Chairman

Pollster Scott Rasmussen’s latest release shows that, “Only 29% predict that repeal (of ObamaCare) will increase the federal budget deficit.” In other words, the vast majority of Americans don’t believe the Congressional Budget Office’s preliminary estimate that repealing ObamaCare would add up to $230 billion to the deficit. Americans aren’t stupid; we realize that interfering with market choices and adding layers of federal bureaucracy at HHS to run part or all of the health care system can never reduce the deficit. The poll finding comes a week after House Speaker John Boehner and Majority Leader Eric Cantor personally challenged CBO’s guesstimates on the impact of ObamaCare.

So why is the House Judiciary Committee Chairman, Rep. Lamar Smith, still citing CBO’s estimate that limiting our 7th Amendment rights to sue for medical malpractice will magically produce $54 billion in deficit reduction? Doesn’t he realize that CBO has a long history of being WRONG in its deficit estimates for much of the past twenty years? For instance: In 1993, CBO forecast that the deficit in fiscal year 2002 would be $579 billion. Two years later, they reduced the FY2002 forecast to $349 billion, Two years later, they reduced it again, to $188 billion. By 2001, they had figured that the budget would be IN SURPLUS by $176 billion.

Why should any American, and especially a House committee chairman, trust any forecast that is so wrong and can change by so much? If CBO can’t even consistently forecast whenther we’ll have a federal deficit or a surplus a few years from now, how can Congress count on it as the basis for possibly abridging our unalienable right to a civil jury trial?

Ordering Vodka By Brand Name

“Goose and soda please.”

My goodness! What a sophisticated gentle-man of the world we have here. He not only knows what he wants, but he’s not afraid to ask for it by name. Nicely done there. That stuff is vaguely French and costs a lot. Bonus points for the abbreviation. A man like you doesn’t have time for an extra syllable.

Except there are a few problems with this bullshit fantasy scenario. Setting aside the practice of ordering vodka in the first place, which is basically the drinking equivalent of watching reruns of Friends in your hotel room on the big vacation in Disney World, the idea that there is some discernible level of quality between different brands of odorless, tasteless burn water is laughable. What we have here are different marketing campaigns. Some of them have convinced you that hitching your mouth, liver and wallet to their promotion wagon will sprinkle a little magic status dust on your suggestible ass.

Why not just walk up to the bar and admit you are very susceptible to manipulation, incapable of making any decisions for yourself, and will literally drink anything you’ve seen a male model with a watch on stand next to in a magazine?

You know why any type of product adverstises, right? Not because there is ever any difference between brands and they’re dying to get the word out to the people so they can make an informed decision. It’s because at the moment of truth, when a guy like you wanders up to the bar with your cologne on and your clueless grin and your calculated facial hair, they know you are going to panic about not looking like you know exactly what the fuck you are doing at all times. They know that you are basically going to say the first thing that comes to mind, which is the last brand name you saw. That’s why, to sort of streamline this whole process here, I’m coming out with a new line of premium high end vodka called I’m a Boring Cunt Vodka (From Europe!).

Until that marketing campaign rolls out, I’m still totally into Christiana vodka. Not because it’s any different than any other vodka, or because it’s distilled

Got Any Big Plans for New Years

PTSOTL holiday re-runs!

Sure, I was thinking about maybe spending 100 dollars to get into a bar I usually go to for free and fighting off crowds of people doing the party equivalent of pushing out a five pound turd. Just pushing, and pushing, and trying and trying. Making weird faces. Hoping it will end soon.

[SEE ALSO:  NYE 101: Pro tips on ringing in the New Year right]

Maybe stand in line in zero degree weather waiting for one of the five puke-ferry cabs available for roughly a million people for a while. Probably do that. Then, let’s see, I dunno, pretend to be best friends with whatever dozen people I’m standing next to when the big hand on the clock points at a magic number. Maybe blast someone in the face and ears with some sort of noise horn or siren or rattle, doesn’t matter what it is as long as they are feeling the full force of my revelry vis a vis a 25 cent paper instrument. Next up I’ll drink some flat bubbly piss water out of a plastic cup. Gonna have to set aside some time to field twenty or so group texts from everyone wishing me a happy new year! That should take a minute or two. Ok, so it’s like 12:09 at this point? Let’s hit another bar. We’ll need to do the cab thing again, wintery purgatory style. Fall in a snow bank probably. Tend to one of my friends who got way too drunk. That should be a laugh. I always sort of wanted to be a triage nurse for a while. After that, who knows? Go sit in someone’s apartment and die a slow death, minute by minute, listening to everyone pretend anything is gonna be different this time around. The usual stuff.

Or I could, you know, not do any of that. Because I am an adult man.


Why hating New Year’s means you actually hate yourself 

New Year’s Eve pre-game shaming ritual

Riding Your Bike on the Sidewalk

Unless you are under the age of 9 or legitimately mentally retarded, there is no reason to ride your bike on the sidewalk. Further, if you choose to ride your bike on the sidewalk (which, just to reiterate, you should not unless you meet the above criteria) you certainly shouldn’t make it everyone else’s

responsibility to get out of your way; people who are engaging in the perfectly reasonable activity of

walking on the sidewalk. That would be very silly of you.

You shouldn’t ring your little bell (and if you have a little bell on your bike you should either meet the aforementioned criteria or suffer the consequences (which are me sticking it up your ass)). You shouldn’t say”on your left”, making your problem (that you’re a retard) into everyone

else’s problem. If you need people to get out of your way, and this need is so deep that you’ve purchased a gay bell to ring to let everyone know that you, the retard, is approaching and they should steer clear, the one place you most definitely should not ride your bike is the sidewalk. Because the sidewalk is where everybody is! No one’s expecting an overgrown nine year old with shorts and an ice cream cone to be riding up their ass ringing a bell. Just do us all a favor and move away from the city. Probably nobody gives a shit if you ride your bike on the sidewalk in the suburbs.

Put it on the list for fucks sake.

Going This Long Without Posting Something

How hard is it to find some peculiar human foible that you notice like two people in the world doing and punch up a bit of observational diarrhea about it in like five minutes that makes it seem like it’s a pervasive, insidious trend? Then just make sure you throw in plenty of synonyms for poop and penises and affect a sort of phony indifference that makes you seem a lot more angry than you really are. Simple as pie. Boner pie.

I should have some material. I rode the bus across town for like an hour today, then spent three hours at the dentist. Later on I went to a sports bar and ate nachos. That’s like seventeen opportunities to destroy the world in the face with spite, but instead of being angry I’m just sort of indifferent.

It shouldn’t be that hard. These things practically write themselves. I’d call it laziness, but that would be giving it too much credit. What do you call a combination of lazy and bad at your job, because I’ve got that one covered here. Covered in pretty much every thing else I’ve ever done for that matter too. Fuck it, I’m hitting the showers. Someone wake me up when they invent a new type of asshole out there.

Chatting Someone Up at the Bar

I’m not what you might call a narcissistic social invalid, so it’s a little hard to understand the oblivious haze most people swim around in all day. But I am a person who’s been to a bar alone more than once in my life, so I’m gonna do a little math on the fly here, lay out a few guesstimates, propose some hypotheses and see if we can’t get a conclusion.

Join me in the old douche lab, won’t you?

Number of times you can explode some non sequitur diarrhea onto the person sitting next to you at the bar in order to rope them into a conversation they don’t want to have:

1 + x/5. x being the number of syllables in the obligatorily friendly but disintersted grunt the person responds with.

Minutes you may talk about yourself without allowing for a reponse from the person you just pulled into your lonely life:


Number of consecutive yeahs, I knows, or yups you get in response before it means it’s time to hitch that banality wagon to the next person down the bar, because I am not fucking feeling it right now and you would obviously be able to tell that if you weren’t a clueless cat-lady/serial killer dude/ regular every day alcoholic (none taken everyone here) with a wacky story about your day at the office.


It’s a pretty straightforward proposition here. If I want to talk to you, you will for fucking sure know about, vis a vis my mouth making words in the general vicinity of your hearing holes. That’s what people who want to talk do. They talk to you. People who don’t sit here reading like me and probably haven’t made eye contact in ten minutes. Who knows though, maybe telling me you’re sorry to interrupt like five more times might do the trick. Beats sitting there alone.

5 Weaknesses of Effective Pastors

5 Weaknesses of Effective Pastors

Even pastors who are leading healthy, effective churches have weaknesses. In fact, the success of their churches can breed some weaknesses inherently.

Tom Harper of the Church Central Leadership Community points to five areas successful pastors often struggle with.

  1. Ministering on an individual basis
  2. Being task-driven and impatient
  3. Dealing with criticism
  4. Personal or familial time neglect
  5. Failure to develop strategic plan

To read Harper’s explanation of these weaknesses, visit the source.


Church Central: Top Weaknesses of Effective Pastors

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A variety of real-life ministry responses to a nation in

by John Carlisle

Continued from

page 1

“One important way we are addressing [decreased giving] is by more individual volunteering of time,” explains the Rev. David Gray, pastor at Bradley Hills Presbyterian Church in Bethesda, Md. “The layoffs and reduced work hours mean people have less money but more time.” Gray, who is also director for the Workforce and Family Program and Religious Center Initiative of the New America Foundation, thinks that volunteer church members can be inspired to perform tasks that churches usually pay for, such as maintenance. “Some people are dusting off their hammer holders and have clearer schedules during the week. I think several churches will make it their Lenten challenge – that their flocks give up more of their time to volunteer to help those in need.”

The Rev. Miriam Acevedo leads St. Christopher’s Episcopal Church in Hampstead, N.H., and has noticed many in her community and parish being throttled by the economy – from lost wages to expiring health care coverage. But she knows she can’t help them all by herself, especially as she’s “spending more time doing pastoral care, as some people are increasingly anxious about what is going to happen next.”

To help the situation, she’s enlisting a committee of members to operate a parish network, which people from the church and community can go to for assistance. “So far, I’ve been able to cover most requests for money,” she says of her allocations for members in need. “I did request some funds from a parish member who is doing well to cover a family that couldn’t get gifts for their children at Christmas.” Part of the committee’s job, Acevedo says, will be to provide career advice, financial counseling and strategy, and even to connect people with services such as dental care and haircuts from the parishioners who happen to be dentists or stylists.

If people in general have more time off, it seems logical that worship numbers might increase. However, a recession’s effect on church attendance is debatable, particularly as relates to evangelical churches. As mentioned in a New York Times article, David Beckworth, an economics professor at Texas State University, conducted a study that showed evangelical churches grew by 50 percent in recession cycles between 1968 and 2004. In contrast, a recent Church Solutions reader poll showed that, since the financial crisis hit in mid-September, church attendance has increased at only 17 percent of churches, stayed the same at 51 percent and even decreased at 32 percent.


Regardless of church attendance numbers, giving doesn’t seem to be increasing. As such, many church leaders are devising creative ways to save money and generate revenue. …


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Ark Megachurch Serves Thousands in Need


With the downtrodden economy forcing many people out of jobs and homes, ministry demand has seldom been higher than it is this holiday season.

This video from CNN’s iReport shows a long line of people waiting to be served at The Church at Pinnacle Hills and First Baptist Church of Springdale, which are billed as “one church, two campuses” in northwestern Arkansas. Click on the link under “source” to view.


CNN iReport: In Bad Economy, Mega-Church Feeds Thousands

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ASU Students Gather on Campus to Pray


A group of Christian students from Arizona State University (ASU) spent the last 21 days praying outside of a chapel on the Tempe campus. The students took turns praying all through the day and night – 24/7. They picked the length of time as 21 days arbitrarily, reported the Arizona Republic. The students started on October 8 and will continue to pray until Monday. (The 21 days of prayer excluded Friday night to Sunday night, as many students go home during weekends.)

The Arizona Republic also referenced a recent study by the Higher Education Research Institute at UCLA. The research indicated that, among 112,000 incoming college students in 2004 (today’s college senior’s), 80 percent have an interest in spirituality, 76 percent are searching for meaning or purpose in life, and 80 percent attended a religious service in the past year.

The ASU student prayer effort did not attract controversy, as students either passed by or joined in. There were poster boards and pens set up on the chapel lawn to allow students to jot down their thoughts or prayers. To read more about the event, click here.

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A case for moving your furniture

by Kevin L. Callahan

Continued from

page 1

Rocket Art

How can we get back to being able to move that furniture? It’s not rocket science, but it is rocket art. All we need to do is remove the pews our grandparents and parents bolted to the floor. At the very least, we need to make them movable. In addition to the modern liturgical calendar is the fact that different seating configurations help to enhance specific topical series or various types of worship. Perhaps the band is off to one side or behind the seating (God forbid, we have a different layout than that of worshipping the worship band). The Church as a whole today is gradually realizing that performance doth not worship make.

One such church is Grace Community Church in Noblesville, Ind. Originally, the church was considering a new 4,000-seat space – quite a change from their existing 1,200-seat sanctuary with four services. However, early in the design process, Senior Pastor Dave Rodriguez and other key leaders became increasing uncomfortable with the performance gestalt of worship in such a large space. Once they saw the ancient-future bent of the soul space “light,” they desired to return to participatory, adaptable, worship assembly spaces and to reclaim connectedness and intimacy in worship. Rather than constructing one large new building, they opted for four separate smaller worship spaces all on the same campus. We call them “concurrent worship spaces” because the term “venue” implies performance, as opposed to participation. Each of their four concurrent worship spaces has a distinctive gestalt, and all have adaptable body language options of varying degrees.

Eyes in the Back of My Head

Let’s underscore something important here: First and foremost, churches should be externally driven, going where people are and living/loving alongside them like Jesus did. You’ve seen the recent studies. People simply aren’t coming to church anymore as their initial spiritual experience. As co-researcher Barry Kosmin of the 2008 American Religious Identification Survey points out, “These people aren’t secularized. They’re not thinking about religion and rejecting it; they’re not thinking about it at all.” However, when we love alongside people where they are, like Jesus did, instead of loving at them, they will be drawn to such an “others focused” perspective.

When the faith community does gather – as we socially driven humans are prone to do and our Lord commands – then the body language of the space where we gather should reflect the “both/and” reality of the inherent participation of the externally focused church philosophy. In other words, we participate both “out there” and “in here.” So, if you’re participatory and you know it, then your space should surely show it – just like your mother who had eyes in the back of her head.

Multi-directionality is essential in an adaptable participatory environment. Even though the 1,600-seat Grace space has 1,000 fixed perimeter seats on wraparound, fragmented terraces that gradually increase in height, the remaining 600 center seats are movable on wide, flat terraces. This results in eight different potential body language seating layouts, with up to 1,800-seat capacity, including totally in-the-round. While relatively few churches are building new spaces, every design principle in the Grace project is both scalable and transferable to worship spaces of any size, new or existing. Worship spaces by their very nature as assembly spaces – even warehouse or big-box church spaces with some columns – are basically large open spaces. Sloped floors, terraces, raked floors, will not prohibit participation; they are still open spaces and can be creatively redesigned and renovated to achieve a participatory body language.

Not Your Average 12-Step Program

In making the transition from performance-based “loving at” spaces to participatory “loving with” spaces, the most difficult thing is not architectural, engineering or technical systems – although, as we’ll see next time, those do matter. It’s the mental, philosophical shift from putting on a show (“worshipping at” people) to participation (“worshipping with” people). It happens in 12 simple steps. Begin by standing on the platform where the speaker would normally stand and then take 12 steps forward. That will be the point at which participatory body language begins. How far you take it from there will tell you how serious you are about really loving people.

While this news may be painful for the “full frontal” performance of the last century of worship, the good news is that it’s simply the other side of the coin. While having movable seating for multidirectional body language is key, so also are the audio, video and lighting technical systems – a subject for another time. (Hint: If you want participation to go up, then turn the sound down, the lights up and incorporate images all around. We call it “surround tech” – stay tuned.)

So, kids, please try this at home – move that furniture!

Kevin L. Callahan AIA NCARB LEED-AP is a cultural anthropologist, liturgical design consultant and architect. He is founder of Callahan Studios Soul Space, an architectural design studio involved in the ancient-future environmental transformation of assembly and worship environments. Callahan’s book, “Soul Space: Ancient Realities in Post-Modern Worship Spaces,” was the basis for this article. Contact him at 480.227.2836 or [email protected]


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Avoiding Fraud Advice for Churches

by Verne Hargrave

Continued from

page 1

2. Staff buy-in

If the senior-level employees of the church are not committed to doing things right, no amount of fraud-prevention measures will provide protection. Policies and procedures may be in place, but odds are, they will not be obeyed. That’s why it’s crucial to have buy-in by executives and management-level church employees. The church’s leadership, as the word implies, has the responsibility to take the lead in communicating acceptable values to other staff, to set a proper example, and to encourage subordinates to do the right thing.

They can’t just talk a good game, either; they must back up their words with actions. One simple example is expense reports. In spite of the fact that filling out expense reports can be a nuisance and takes time out of their busy schedules, the senior staff has to understand their necessity. Willfully complying without complaining is a great example of reinforcing the proper tone at the top. You can rest assured that sarcastic remarks by a senior employee about having to mess with expense reports will reverberate throughout the entire church – negatively!

3. An empowered leadership team

Many of the spectacular financial scandals in recent years have one thing in common: They involve ministries or churches “ruled” by a single individual accountable to no one but himself. With no checks and balances and vast amounts of cash, most of us would find it difficult to resist temptation. As in all areas of life, we need help in staying accountable. Scripture backs this up in Ecclesiastes 4:9-12. That’s why a strong, empowered leadership team is crucial to effective fraud prevention.

  • The leadership team can’t be a figurehead and should include, at a minimum, some of the following characteristics:
  • It must be formally established by the church through its articles of incorporation, bylaws, constitution or other governing documents.
  • Leadership must have the authority to make difficult decisions, not simply to rubber-stamp others’ decisions.
  • The team also must be given permission and encouraged to ask difficult or uncomfortable questions.
  • It must be an ongoing team; temporary task forces seldom accomplish much.

These factors will help establish the tone of the organization, helping it begin to ward off financial predators. However, the leadership team must be constantly reminded that they serve a church. Churches don’t need overseers. They need servants.

4. Competent volunteers

Without question, the Church is the greatest volunteer organization in the history of the world. From its very beginning, churches have been dependent on people who take no pay; instead, earning their living in the marketplace. In spite of this wonderful tradition, volunteers tend to be taken for granted in two ways.

First, churches seldom express proper appreciation to their volunteers for their countless hours of dedicated service. Looking at it in simple financial terms, could you imagine how much it would cost if the church had to pay for the volunteers who feed the hungry, visit the sick and lonely, teach Sunday school and, yes, count the Sunday offerings?

A second way volunteers are taken for granted occurs when churches pay too little attention to the way that volunteers carry out their duties. Volunteers tend to be engaged on a turnkey basis, meaning they are asked to get certain things accomplished but given no real guidance on how to get the job done. As a result, sometimes the wrong person may end up in the wrong place doing the wrong things. Two areas where this has caused churches immense pain are taking care of the church’s children and money.

A few steps churches should take to improve and protect their volunteer force include:

  • Screening potential volunteers; it’s always possible that an individual’s motives for stepping up to volunteer may not be so noble.
  • Providing formal training and orientation to increase volunteers’ efficiency and reinforce the church’s commitment to doing the right thing
  • Taking steps to ensure that the church’s volunteers remain effective; continuing education is just as important for volunteers as it is for a church’s professional staff

As tempting as it may be to jump into action, it’s much more important to take the time to put a strong foundation in place to prevent fraud. Because what’s more important – the time you’re making, or the direction you’re heading? Make sure your church never has to make a u-turn when it comes to fraud.

Verne Hargrave is a certified fraud examiner and CPA. He joined Pickens, Snodgrass and Koch LLP (PSK) in 1978 and has been a partner since 1987. He also served eight years as a bivocational pastor. Hargrave oversees and conducts numerous church audits, and supervises the church accounting and compliance departments of PSK. A NACBA member, he also speaks at various churches and ministry-related seminars. Contact him at 817.664.3000 or [email protected]

Pages: Previous1 2

10 Principles for Growing a Dynamic

By Bob Russell with Rusty Russell

The remarkable story of Southeast Christian Church

One of my favorite movies is Hoosiers, where Gene Hackman plays the part of Norman Dale, a former college coach with a tainted past who is hired to coach a rural high-school basketball team from Hickory, Indiana. Coach Dale leads the team all the way to the state finals. On the day of the semifinals, the team arrives at Butler Field House, the huge inner-city arena where they’re to play in just a couple of hours. When the players enter the arena, their jaws fall slack and their eyes open wide. Gawking at the seats, the stand-alone goals, the suspended scoreboard, and the lights, they are awestruck and intimidated.

Coach Dale instructs one of his players to take a tape measure and determine the distance between the free-throw line and the goal. “What’s the distance?” he asks.

“Fifteen feet,” the player says.

Dale then tells the smallest player on the team to climb on the shoulders of a taller player so they can measure the goal. “How high is it?” he asks.

“Ten feet,” the player says.

Coach Dale says, “I believe you’ll find these are the exact same measurements as our gym back in Hickory.”

The team members share in some nervous laughter, and everybody begins to relax. As they exit the gym, Coach Dale turns to his assistant and whispers, “Sure is big, isn’t it!”

I don’t know what monumental challenges lie ahead in this new millennium. But I know we’re still playing the same game. It’s the same Bible we are teaching, the same truth we are proclaiming, the same Lord we are exalting. For the church to be the church–in any millennium–we must follow certain principles. If we ignore even one of these essential principles, we’ll become something other than a church, with no defining characteristic to separate us from a country club or civic organization.

I’m convinced that if your church is characterized by the ten principles outlined in this book, regardless of the methods you choose to implement them, God will bless your efforts. They are Truth, Worship, Leadership, Excellence, Faith, Harmony, Participation, Fellowship, Stewardship and Evangelism.

Many church leaders go to conferences looking for a quick fix or easy solutions to their problems. They hope to discover some fresh program, some unique gimmick that will jump-start their church–contemporary music with a band, shorter or longer sermons, expository preaching or thematic preaching, small groups, or technological enhancements in the service. Discussing those ideas may be helpful, but what works in one culture or one area of the United States may not work in another. What one church adapts as positive change may be a source of division in another.

The methods we have implemented at Southeast Christian Church may or may not work at your church. You can’t fight Goliath wearing Saul’s armor. You can’t minister with someone else’s style. You have to be yourself and adapt to the culture around you. But the principles that undergird those methods–the ten principles discussed in this book–should be enlisted by every congregation that intends to glorify Jesus Christ. Although I will share with you some specific ways our church has tried to apply these principles, you must remember that the secret ingredients are the principles themselves, not the applications.

At 22, Bob Russell became the pastor of 125-member Southeast Christian Church in Louisville, Ky. Thirty-four years later, SCC has become one of the largest churches in America, with 14,000 attending every weekend. Bob has written 10 books, is heard weekly on the national radio broadcast The Living Word, and writes a weekly column for The Lookout Magazine. Rusty Russell is an associate minister at SCC, where his father, Bob Russell, is senior minister. As a member of the preaching staff, Rusty works behind the scenes in sermon preparation, research and writing. He is a graduate of Cincinnati Bible College and is currently pursuing a master of divinity at The Southern Baptist Theological Seminary. Prior to joining the SCC staff, he served as a preaching minister, teacher and Christian school administrator.

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