I previously wrote about a panel at the National Convention of the Federalist Society on November 20 about the potential for reviving the right to a jury trial for civil suits as enumerated in the 7th Amendment. One of the panelists, attorney Michael Carvin of Jones Day, and an audience participant, Roger Pilon, Vice President for Legal Affairs at the Cato Institute, had disturbing reactions to the pro-7th Amendment remarks of Gibson Vance, President of the American Association for Justice. Mr. Vance discussed the anti-7th Amendment nature of the Supreme Court’s affirmation of federal pre-emption (the federal overruling of state statutory and common law, including jury decisions) in Riegel vs. Medtronic; and the use of forced arbitration clauses in consumer contracts, citing his family’s experience with nursing homes. You can see his remarks starting at the 44-minute mark of the video.
Let’s start with some of Mr. Carvin’s remarks, which begin just after the 58-minute mark of the video.
Carvin first pledged allegience to the 7th Amendment, then denied that policies such as pre-emption and the use of forced arbitration clauses in consumer contracts have anything to do with the right to a jury trial for civil suits. “Circumstances have changed… this is really a policy debate and things have dramatically changed.” So that was his bridge comment from a short affirmation of the basic right to his “explanation” of what he called “entirely separate questions” which have “nothing to do with the right to have a jury.” That sounds a lot like the excuses used for decades by the Beltway gun control elitists to justify infringement on our rights enumerated in the 2d Amendment – “Well, we support the 2d Amendment but things have changed since the Revolution, and we can’t have unlimited rights to carry guns all over the place!” The people of the United States didn’t agree with Beltway legal elitists then, and ultimately neither the Supreme Court.
Carvin then termed the medical device pre-emption exemplified in Riegel as “entirely a debate about the Supremacy Clause, when and under what circumstances federal law trumps state law – state administrative agencies, state others, state decision-making, including juries – it has nothing to do with, whether or not, for the sphere of law left to the states, whether or not those will be adjudicated by juries or by courts… it really has nothing to do with it…” (referring to the 7th Amendment).
For those readers not expert in Constitutional law, the “Supremacy Clause” is in Article VI, Clause 2 of the Constitution, and begins with, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…” (Emphasis mine.) It basically stands for the proposition that federal law trumps state law on the same subject.
Roger Pilon then joined the discussion on preemption, supported the Commerce Clause over the 7th and 10th Amendments, and added a red hearing about federal vs state regulation of drugs (starting at about the 1:29:50 mark on the tape). “For Mike Carvin, I think you’re absolutely right on your points about pre-emption, this is not a 7th Amendment issue… if the Commerce Clause was meant for anything, it was meant to ensure the free flow of goods and services among the states, and jury trials can really make a mess of that if pharmaceutical companies, for example, have to have 50 different labels for warnings on their medications.”
But there is no doubt that the Riegel decision resulted in the summary dismissal of lawsuits filed by hundreds of victims of defective medical devices. The companies cited the Riegel decision in their Motions to Dismiss and judges agreed with them. The “supremacy” of federal law trumped the right to a civil jury trial for the victims.
Think about the sweeping nature of the Constitutional principles enunciated by Michael Carvin and Roger Pilon: The Supremacy Clause and the Commerce Clause trump the 7th and 10th Amendments, two key components of the Bill of Rights. I can think of no better definition of “dictatorship” in Constitutional law than, “The Supremacy Clause trumps the Bill of Rights.” The Bill of Rights was drafted precisely as a check on the federal government’s powers. The Bill of Rights should limit ALL clauses of the Constitution which grant power to the federal government, or it limits none of those clauses.
The Founders realized soon after the ratification of the Constitution that the the powers granted to the federal government had to be bound and limited by an express Bill of Rights, especially with an amendment that protected states’ rights. I commend to readers the Tenth Amendment Center’s excellent summary of the debate over the Supremacy Clause. One of the two men who are considered the “Fathers of the Bill of Rights,” George Mason, refused to sign the Constitution precisely because the powers enumerated to the federal government were not limited by an express statement prtecting of individual and states’ rights. In his Objections to the Proposed Federal Constitution, published in June, 1788, Mason wrote in his first sentence, “There is no Declaration of Rights, and the Laws of the general Government being paramount to the Laws & Constitutions of the several States, the Declarations of Rights in the separate States are no Security. Nor are the People secured even in the Enjoyment of the Benefits of the common Law.” He then added more details of his objections to the Constitution.
And near the end of his Objections, George Mason pinpointed the limitation that the country needed to impose on the Supremacy Clause: “Under their own Construction of the general Clause, at the End of the enumerated Powers, the Congress may grant Monopolies in Trade & Commerce, constitute new Crimes, inflict unusual and severe Punishments, & extend their Powers as far as they shall think proper; so that the state Legislatures have no Security for their Powers now presumed to remain to them, or the People for their Rights.” Mason predicted, 222 years ago, that Washington legal elitists would grant supremacy in federal law over states’ rights and individual rights, unless those unalienable rights were guaranteed in writing and in law.
The Carvin-Pilon points echo the prevailing wisdom among proponents of federal preemption and among a majority of the current Supreme Court. In reading commentaries on the pre-emption issue written in recent years by Roger Pilon, a leading corporate defense attorney, and two attorneys who have argued for pre-emption several times before the Supreme Court, you read the same points: Pre-emption is all about the primacy in Constitutional law of the Supremacy Clause over states’ rights enumerated in the 10th Amendment, and the right to a jury trial enumerated in the 7th Amendment is ignored. The two attorneys, as follows, noted their satisfaction at the lack of attention to the Constitutional issues in recent Supreme Court pro-pre-emption decisions:
A significant feature of this term’s preemption cases is that rather than explicitly turning on sweeping philosophical debates about the merits of federal power versus federalism (sometimes embodied in presumptions about preemption or wading into administrative law battles about the degree of deference due federal agencies, many opinions hewed closely to the text of the federal statute, with a practical nod to the federal interests at stake in the overall federal scheme relating to that subject matter. Critics of judicial overreaching can take some comfort in this approach for interpretations that more closely follow the statutory text tend to give the political branches greater control.
Re-read that last sentence again slowly and note the authors’ “comfort” over the “greater control” granted to “political branches” over our lives. Beltway legal elitists prefer that federal bureaucrats make the final decision over the safety of implanted medical devices or financial services, with no recourse to a local jury for a defective product or fraudulent action by a financial institution. They can then influence the federal regulator one way or another without fear that the people of this country will hold anyone accountable.
Not once, in any commentary I’ve mentioned in this post, does any of these Washington-based legal experts and attorneys consider that the pre-emption of state statutory law by federal statutory law also infringes on an unalienable right protected in American constitutional and British common law for almost 800 years, the right to a civil jury trial. It is established law, accepted like any ordinary statement of fact, that the Supremacy Clause, and probably the Commerce Clause also, trump the 7th and 10th Amendments. The 7th Amendment is never even mentioned in any of the linked documents – it is thrown into the ashheap of history. After so many years of political war against the 7th Amendment, we see Beltway elitists cavalierly waving away our Constitutional history and our God-given rights in the name of federal supremacy and commerce. I’m astonished that the Cato Institute, which splashes its love of “Individual Liberty” over its homepage, so readily dismisses the right that James Madison called “as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” It’s as if George Mason never wrote his warning about the dangers of the Supremacy Clause.
Tea Party activists, Constitutional conservatives, and 7th and 10th Amendment champions will face enormous difficulties in overturning years of established legal precedent to ensure the primacy of the 7th and 10th Amendments. NONE of the iconic conservative Justices of the Supreme Court is on record supporting states’ rights over the power already granted to federal bureaucracies by the business community and most of the “conservative” legal elite in Washington. The forces fighting for more Washington control over our lives while hiding behind the “conservative” label are rich, powerful, ensconced in high positions, and will not surrender without the people of this country demanding our unalienable rights.