On Monday, 43 Catholic dioceses, organizations and universities sued the Obama administration, in 12 separate suits, to block the imposition of the Obamacare mandate to offer, in health insurance plans, drugs and devices which are forbidden by Catholic teachings, such as contraception and abortifacients. The plaintiffs include the University of Notre Dame (my law school alma mater), the Archdioceses of Washington and New York City, and a number of local affiliates of the national Catholic Charities.
And near the end of the lawsuits, the plaintiffs added the magic words to invoke the right to a civil jury trial: "Pursuant to Rule 38 of the Federal Rules of Civil Procedure, the Plaintiffs hereby demand a trial by jury of all issues so triable." That rule begins as follows:
"(a) RIGHT PRESERVED. The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate."
I can think of no better way for the public to learn about the God-given right that the Founding Fathers called "sacred" and "inviolable!" If these suits actually proceed, all America will witness the 7th Amendment in action, with local juries hearing the arguments brought by each side. I am ecstatic that the plaintiffs demanded a jury trial.
And would anyone dare to "tort reform" these Catholic institutions out of that right? Would anyone dictate to federal courts how they're supposed to handle these cases, like many want to do with health care-related lawsuits in a federal medical malpractice law?
Maybe these suits will remind Americans that the Founders designed the civil justice system, and protected the right to a civil jury trial, for all causes and all cases. They didn't treat lawsuits to protect religious liberty any differently than tort claims over personal injury, and neither should we.
For almost a year, the House GOP paid attention to constitutional principles and avoided crossing the line by not voting on the House floor for a bill to severely limit the rights of victims of medical malpractice, numbered H.R. 5. After all, its finest legal experts wrote time and again that federally imposed limits on medical malpractice lawsuits, especially those imposed in H.R. 5, are an unconstitutional abridgement of states' and unconstitutional rights. And many GOP Congressmen listened.
The lineup against H.R. 5 is full of GOP legal superstars: Anti-Obamacare superstar Professor Randy Barnett, Virginia Attorney General Ken Cuccinelli, Federalist Society superstar Professor John Baker, Rob Natelson of the Tenth Amendment Center, Carrie Severing of the Judicial Crisis Network, Hans von Spakovsky of the Heritage Foundation, Professor Ilya Somin of George Mason Law School, and more. Even Ted Frank and Walter Olson, who sharply criticize the plaintiffs' bar, warned the House GOP that H.R. 5 is a bridge too far.
And important conservative political figures and groups joined them in condemning federal interference in state civil justice systems: Sens. Tom Coburn and Mike Lee, the Tea Party Patriots group, our own Judson Phillips, the National Conference of State Legislators, the Cato Institute, and Reps. Ted Poe, Louie Gohmert, Lee Terry, Morgan Griffith, and many others.
Then, two months ago, House Speaker Boehner and his close lieutenants put the Tea Party in the rear-view mirror. They intentionally moved away from principles of limited government in the name of "practical politics," in order to gain more support from business interests. The new agenda included a cyber-security bill that raises privacy concerns; the reauthorization of the Export-Import Bank (which really angered conservative leaders); and a heavy push for H.R. 5.
This Beltway Cabal of GOP leaders has since made it almost impossible for principled GOP Congressmen to vote for the Constitution and against H.R. 5. First, they announced after the House left town that H.R. 5 would be combined with a very attractive bill to repeal the Obamacare "death panels." Then they fixed the rules so hesitant Members had no opportunity to strip unconstitutional federal medmal limits from that combined bill. When that passed, they shoved H.R. 5 into a budget bill, again with no opportunity for conservatives to vote against it on the House floor.
Both times, GOP Members complained to Speaker Boehner's office that they were being forced to compromise constitutional principles - the very basis of their opposition to Obamacare - to support special interest legislation for the very groups that backed the enactment of Obamacare. Both times, the Speaker and his Beltway Cabal shut that opposition down with no floor debate or vote.
Multiple GOP Congressmen voted with the Constitution the first time, even though it meant not voting against Obamacare. I've been told by individual Members and key staff of "heated" conversations beetween Tea Party-side Republicans and leadership staff, but the Beltway Cabal doesn't care. Dissenting Republicans are afraid of losing committee seats and campaign dollars - just what Democrats who disagreed with Pelosi faced.
The message to Tea Party backers and average Americans is that when push comes to shove, the Constitution takes a backseat to Crony Capitalism, using the "Pelosi Rules." I discussed this in a radio interview on the nationally syndicated "What's Up" radio program, hosted by Terry Lowry and broadcast on Sirius Satellite Radio and on 12 FM radio stations. You can listen to Segment 1 here and to Segment 2 here.
SEND A MESSAGE TO YOUR REPUBLICAN CONGRESSMEN: WE DIDN'T BREAK OUR BACKS TWO YEARS AGO TO SEE REPUBLICANS RUN CONGRESS LIKE NANCY PELOSI! FOLLOW THE CONSTITUTION! AND HAVE OPEN DEBATE!