Why 400 Years of Knowledge is Better Than 20

Posted by Elana Levin at 1:09 PM on May 9, 2007.

Michael Townes Watson of DMI's blog TortDeform.com has a great post today in light of the current rash of Reagan worship and Jamestown's anniversary. (He wrote the following)

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Being, as I am proud to admit, an addict of the history of our American history, I have visited Jamestown, Virginia on multiple occasions. Consequently, I am on the mailing list for promotional information from their public relations department. I have recently received news of the planned events for the weekends of May 4-6 and May 11-13, when Colonial Williamsburg will host “Her Majesty Queen Elizabeth II and His Royal Highness Prince Philip” to commemorate the 400th anniversary of Jamestown’s founding. The reason for the timing of these spectacles is that this year marks the 400th anniversary of the founding of Jamestown.

If you have ever spent any time in Jamestown, Williamsburg and Yorktown, Virginia, you have undoubtedly stood on that ground and pondered where we would be if it were not for the perseverance, strength of purpose and desire for liberty displayed by those settlers, by the colonists who first met at the House of Burgesses to declare our independence, and by the citizen delegates who later demanded the ten Constitutional Amendments that we know as the Bill of Rights. How can one ponder those events and not wonder at the same time whether we have the will, perseverance and dedication to resist the influence of the forces that are now attempting to whittle away at the very rights for which the settlers, colonists and delegates died and fought.

At the same time as I am celebrating the news of the 400th anniversary of our nation, I am lamenting the hype of the debate being held among the ten Republican Presidential hopefuls at the Ronald Reagan library in California. Although the media commentators are regaling Reagan as the libertarian whom all the candidates should emulate, it was Reagan who, twenty years ago, began the intentional and contrived decimation of one of the precious liberties for which our colonists fought--the right to a jury of one’s peers in a court of law. Reagan began the assault which has endured for 20 years when he proclaimed that the “excesses of the courts have taken their toll.”

An earlier post on this site details Reagan’s efforts to misstate the facts, much like the efforts of those who have successfully perpetuated the tort reform impetus for the past twenty years. Over the course of those twenty years, there have been 34 states that have enacted legislation limiting punitive damages, thus limiting the deterrent and retributive effect of awards against the most evil wrongdoers. There have been 25 states that have done away with the collateral source rule, thus enabling negligent parties to deduct from their liability amounts paid to the injured by the injured parties own insurance (for which the injured party has already paid). There have been 28 states that have limited non-economic damages, thus depriving the most vulnerable in society, children, elderly and low-income injured, from recovering when they are severely affected by negligent wrongdoing. Finally, there have been 38 states that have altered the rules of joint and several liability, thus preventing full recovery by a victim of multiple negligent wrongdoers if any of those wrongdoers is insolvent. Yet, on the 400th anniversary of our nation’s first settlement, we still hear more cries for “tort reform.” It seems that the past twenty years have trumped our first 400 years. Most people who bemoan lawsuits have no idea of the amount of decimation our jury system has already suffered, yet they want more because they have been conditioned to believe that lawsuits are bad things.

The media, as I write this post, inflames the public, much like an insidious infection spreading in an unsanitary hospital room. They rampantly report this week of the “judge in D.C. who sues for $67 million over a pair of lost pants.” Who knows whether they have their facts accurate, but they obviously love the impact of the story, even introducing it with “Move over lady who recovered millions from McDonald’s when she spilled coffee in her lap.” It is clear that they want, and indeed succeed in their efforts, to perpetuate the image of the greedy trial lawyer with the non-deserving client recovering outrageous amounts from an unfair system fostered by unaccountable judges and stupid juries.

It was 180 years after Jamestown that other Virginians among our nation’s founders, Thomas Jefferson and James Madison, wanted to assure, as written in the Seventh Amendment to the Constitution, that “trial by jury shall be preserved, and no fact tried by a jury, shall be reexamined in any Court of the United States, than according to the rules of the common law.” Our Supreme Court has never ruled that the Seventh Amendment was binding on the states under the Due Process Clause of the Fourteenth Amendment, but the wisdom of the notion of trial by jury still persists. Yet, legislative bodies in every state of this nation have seen fit to violate that notion, because of some contrived and rampantly propagated belief that juries are evil and undermine the aims of legitimate society.

Why have we become adverse to Jefferson’s belief that the right to a jury trial was the cornerstone of a true democracy? The citizen-soldiers who fight in a politically-motivated war in Iraq come home injured, only to find that if they are then further injured by an error-prone medical system, they do not even have the rights they supposedly were fighting for in a foreign nation, where we are trying to “establish a democracy.” The stay-at-home mom is the cornerstone of the very family structure so often credited with the preservation of the “family values” extolled by opportunistic politicians. Yet, when that mom is killed by a hospital system that wrongfully kills nearly 200,000 Americans every year, she is survived by children and a husband who must hear that the life of their loved one has been arbitrarily limited by those same politicians. When that same medical system finds a way to save or enhance human life with advances in stem-cell research, our President refuses to fund that research because he proclaims that it will destroy single-cell beings, whose lives are, to use his words, “of limitless value.” Yet, when a child is maimed for life by the errors of a negligent hospital delivery, that President wants to limit the value of the injured child’s life so that, to use his own words again, the ob-gyn doctor can go on “practicing his love with his patients.” So much for the “limitless value” of human life.

Whenever we hear the cries of people for “tort reform,” we must be sure to counter those cries by disseminating information about the true effects of these reforms. We must let people know that the very reforms they advocate not only disrupt the system envisioned by our founding fathers, those reforms also leave them helpless when they become victims themselves. In The Federalist Paper #78, Alexander Hamilton was trying to let his fellow citizens of his newly-formed country know the purposes and benefits of the proposed Constitution, in a way much more eloquent than I. He stated, in reference to the moderating effect of an independent judiciary:

“Considerate men of every description ought to prize whatever will fortify or beget that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today.”

The rules that we choose for our society should be rules that we would choose to apply to all, regardless of which side of the debate we are on. Former Senator Rick Santorum, a highly vocal advocate of limiting damages, sought a gigantic damage recovery for his own claimed damages when his wife was wrongfully injured. A doctor may some day be a patient; an insurance agent may some day have a child injured; a hospital administrator’s wife may be brain-damaged by a neurosurgeon. Democracy should give everyone a glimpse of justice. It should give that glimpse not just to those who make the rules, but for those who watch the rules being made and those who are impacted by those rules. How many times is your eye caught by a tabloid story at the grocery store checkout line, such as the ones Reagan told, the McDonald’s coffee case, or other such rendition without the full facts? You then fume all the way home from the store thinking that you are victimized by the justice system, when the truth is that you have actually been victimized by those who tear that system apart.

We all are vested in the justice system. Every person now breathing in this country is just as likely as anyone else to have fate’s hand turned against them in some form or other at some point in time. When you support an idea, a thought, a proposal, a law, a reform, please be sure that you know what it is, what it will do, what it will not do, and who will be affected by it before you decide your position. Inform yourself, listen to all sides of the debate, and imagine what it would be like if it were to some day apply to you. If you can’t bring yourself to think that way, just think of the settlers at Jamestown 400 years ago, their fellow Virginians 180 years later, and ask how they would have thought. Let’s not be fooled by twenty years of false rhetoric. Instead, let’s learn from 400 years of our country’s history, and the 800 years of history that have passed since the Magna Carta articulated the right of trial by jury.

Tagged as: tort reform, presidential debates, constitutional rights, reagan, tort deform, lawsuits, court system

Elana is Communications Manager at the Drum Major Institute for Public Policy and runs the DMIBlog.com