Common Sense Political Thought

Cross-posted from PFB Blog.

Conservatives love the Constitution, and specifically the Bill of Rights. While liberals may take an expansive view of the Constitution’s terms, or subscribe to the idea of a “living Constitution,” conservatives recognize that a Constitution that does not say what it means, or mean what it says, effectively means nothing. A living Constitution is a dead Constitution, for what is actually protected if all of the protections are subject to “re-interpretation” or some “public policy” balancing test at any given future moment?

Specifically, conservatives have been fighting the good fight with respect to the First Amendment (vs. liberal attempts to remove all vestiges of religious symbolism from public view), the Second Amendment (vs. liberal attempts to restrict gun rights), and the Tenth Amendment (vs. liberal attempts to expand the size of the federal government). In defending the protections that conservatives believe the aforementioned Amendments were created to protect, conservatives usually cite the language of the text itself (it means what it says), as well as historic precedent (this is how the Founding Fathers viewed the language).

But what about the Seventh Amendment? People can recite the First, Second, and Fifth. Many people also know the Fourth, Sixth, Eight, and Tenth. The Seventh Amendment, however, like the Third and Ninth Amendments, is rarely discussed. A very large percentage of the people you meet will not be able to tell you what the Seventh Amendment says. And maybe that is the problem. It has become a footnote.

The Seventh Amendment:

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.

…the right of a trial by jury shall be preserved… Simple enough.

no fact tried by a jury… The determination of damages in a civil suit is a fact that has always been determined by a jury. Other than in criminal and related areas of the law, where statutory penalties are often codified, the determination of damages has never been a question of law. It has always been a fact question.

shall be otherwise re-examined…than according to the rules of the common law. Under the common law, damages for suits in negligence were determined by the jury.

Thus, by the plain language of the Seventh Amendment to the Constitution, Congress does not have the ability to determine the value of a civil case, not because the Amendment specifically prohibits Congress from doing so, but because the Amendment specifically preserves that right for the jury.

From Justice Souter:

The Seventh Amendment provides that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved….” … Since Justice Story’s day, …we have understood that “[t]he right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted.” … In keeping with our longstanding adherence to this “historical test,” … we ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was… If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791.

Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 116 S.Ct. 1384, 1389 (U.S.Pa.,1996). (citations omitted).

Negligence actions clearly fall under the law category, and under the “historical test” thus must fall to the jury “in order to preserve the substance of the common law right.” Thus, Congress has no right to take the determination of damages in a negligence suit away from the jury.

As an aside, it should be noted that the Seventh Amendment has not been incorporated against the states. Therefore, although Congress has no authority for capping damages in negligence cases, the states could cap the damages in suits at law, even in diversity actions. See Davis v. Omitowoju, 883 F.2d 1155, 1161-1165 (C.A.3 1989).

Tort reform, passed by Congress with the intention of being applicable to state negligence claims that historically have been tried by the common law, is thus in violation of the Seventh Amendment.

And do not forget that malpractice claims are only responsible for about 1.5% of the health care industry’s costs, caps limit your right to recovery as against doctors but do not effect your right to recover the same types of damages, uncapped, against other industries (thus practically being a handout to the malpractice insurer), and will not reduce frivolous lawsuits at all.

Wake up, conservatives.