Federal tort reform is a hot issue. Almost every Republican from Mitt Romney on down, when they start talking about their economic plans, bring up Federal tort reform.
Somehow, the notion that the tea party or conservatives support federal tort reform has become accepted an idea. Nothing could be further from the truth. Federal tort reform is neither a tea party nor a conservative value.
First, nothing in the Constitution gives the federal government the right to mandate tort reform. Tort reform generally takes two forms. The first is a limitation on pain and suffering awards. The second is usually a limit on what plaintiffs’ lawyers can charge as fees.
State law, not federal law, governs tort matters. Even when federal jurisdiction is triggered, the cases are still governed by state law. Just as there is no constitutional authority for the government to take over of the health-care industry, there is no constitutional authority for the federal government to overrule what has always been the province of the states.
Perhaps one of the most disturbing components of federal tort reform is the assault on the Seventh Amendment. The Seventh Amendment guarantees the right to civil jury trial. The right to trial by jury was so important to our Founding Fathers that it is the only right that is specifically named in two Amendments in the Bill of Rights.
One of the things our Founding Fathers understood was the importance of freedom. The free market and freedom are inseparable, and the civil jury trial is an important component of the free market.
The free market does something very important for civic virtue. The free market acts to reward good behavior and punish bad behavior. The civil jury trial system allows any American from the richest to the poorest to have his day in court and be judged by a jury of his peers. If someone engages in bad behavior, especially if the wrongdoer is a corporation, the civil justice system acts to punish that behavior. It acts to inspire good behavior by warning people what will happen if they engage in bad behavior.
Tort reform by the federal government is a very bad idea. It is not something the Founding Fathers would recognize as a responsibility of the federal government. It is an assault against the rights our founders considered to be essential to liberty. Federal tort reform is a very bad idea, and it is certainly not a tea-party value.
Tort Reform is being pushed by the American Medical Association and the insurance industry. The AMA has no interest in protecting the constitutional rights of Americans. They want to protect doctors. The AMA was also a prime supporter of Obamacare, so their track record of good ideas is not too great.
The insurance industry, along with the doctors, has destroyed the free market in the health-care sector of the economy.
Why does health care cost so much? It is not the medical malpractice lawsuits, as the big insurance companies would have you believe. It is because there is no competition.
Doctors now set their prices based on what the insurance companies will pay. But, we the public don’t even know what the cost is. All we know is we pay a $25 co-pay and we have a deductible – and that’s it.
Doctors have no incentive to compete because their prices are controlled by the insurance industry.
Now, the same people who managed to destroy the free market for health care and drive up costs of health care want to destroy another part of the free market.
The free market is wonderful. It encourages good behavior and punishes bad behavior. The civil court system is a part of the free market. It is the part that punishes bad behavior.
The Constitution is not a buffet. We do not simply pick and choose what we want. Our Founding Fathers put the right to a civil jury trial in Constitution for a very good reason. They also limited the power of the federal government with the 10th Amendment for a very good reason.
The last thing we conservatives need to do is start into a selective reading of the Constitution. As much as there are one or two parts of the Constitution we might not like, there are freedoms and liberties guaranteed by the Bill of Rights the left would like to strip away, too.