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Scott R. Marshall
Scott R. Marshall
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THE BILL OF RIGHTS: Tort Reform, Gun Control and How Insurance and Big Business Duped Conservatives into a State of Hypocrisy

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If you have an opinion about Gun Control and Tort Reform, are your opinions consistent? Ever thought about that? These two hot topics and the issues surrounding them all arise out of the protections granted by The Bill of Rights. If you listen to the arguments both for and against each issue, then look at who is making them, you will often find people invoking The Bill of Rights as a shield protecting a Fundamental Right on one issue (the right to bear arms), then in attacking another Fundamental Right (the right to trial by jury), discounting the very shield upon which they so heavily rely to protect the other. Why? What brings people to the point that they so hypocritically pick and choose when to recognize and assert the value of The Bill of Rights? As usual, the simple answer is:  money. It’s not their money, however. It’s the money being dumped into the political system and propaganda campaigns by big business, the Chamber of Commerce and the insurance industry.
AMERICAN CIVICS 101
The first ten amendments to the U.S. Constitution, otherwise known as The Bill Of Rights, are a very large part of the genius of our forefathers. They knew oppression. They fought against it, with blood, and won. They then drafted our constitution to protect the citizens and states of this great nation from further oppression by a centralized federal government.  They added The Bill Of Rights to grant fundamental rights to the citizens of our great country. These fundamental rights are rights that can only be restricted by a compelling state interest, which is a near impossible standard to meet. Here are the two at issue:
GUN CONTROL & THE SECOND AMENDMENT
  • The Second Amendment:  A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
TORT REFORM & THE SEVENTH AMENDMENT
  • 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 reexamined in any court of the United States, than according to the rules of the common law.
THE CONSERVATIVE POSITION
What does it mean to be conservative? An oversimplified, but adequate definition for this blog might be to favor smaller government, less government regulation, less taxes, just less of everything when it comes to the government (except of course the military, in which case you want the most). So, if a conservative is in favor of less government intervention, then the following should hold true:
The more conservative position on these issues is:

Gun Control:  no, do not restrict my right to bear arms

Tort Reform:  no, do not restrict my right to a trial by jury

Hypocrisy is: behavior that contradicts what one claims to believe or feel

Invoking the 2nd Amendment to protect your guns, but ignoring the 7th Amendment by advocating for Tort Reform…hypocrisy?

If you are a self-proclaimed conservative calling for Tort Reform, but invoke the 2nd Amendment because you don’t want the government restricting your right to bear arms, your positions are inconsistent. You want to protect The Bill of Rights as sacrosanct when it serves you, but shred it when it doesn’t. You can’t have it both ways. You can either restrict the amendments in The Bill of Rights or you can’t. And if you are truly a conservative, there is no way you can advocate for tort reform without abandoning your conservative values. You can argue about this all you want, but in the face of two positions, the one calling for less government intervention and fewer limitations on Fundamental Rights is the more conservative position. So, here it is:
If you are in favor of tort reform, you have a liberal position.
Ouch.  That hurt, didn’t it?  So, how did this happen?  How are so many once-conservative citizens in favor of government regulation and sacking The Bill of Rights?  I could right pages on this, but I won’t.  Elliot Engstrom has done an excellent job laying this out in his blog: Why Conservatives Should Be Against Tort Reform. I would encourage you to read it. It lays it all out for you. Big business has engaged in a massive campaign, through virtually unlimited political contributions and other propaganda, to convince politicians and the public to embrace the idea of tort reform, and conservatives took the bait. As Engstrom notes, it is really the political influence of big business that has undermined conservative values:
Big business is not a bad thing.  But the collusion of big business and government is a bad thing, and it is something that conservatives more than anyone else should be wary of, as it is this sort of collusion that leads to an erosion of our rights and a failure to equally enforce the rule of law.   If we are to truly conserve the classical liberalism of our Founders, we must understand that as important as business and commerce is, constitutional rights and the separation of powers must still come first.  In the words of Jefferson, “The selfish spirit of commerce knows no country, and feels no passion of principle but that of gain.”
I’ll leave you with that. If you are a self-proclaimed conservative in favor of tort reform, you have been sucked into the Layer of the Lotus Eaters. You need to wake up and stop drinking the Kool-Aid. If you are a true conservative and you support The Bill of Rights — all of them — then you have two choices: oppose tort reform with the fury you oppose gun control, or bask in your own misguided hypocrisy.
BTW:  I’m a trial lawyer with a concealed carry permit, which brings me to a final point: if you want gun control, be sure you are also willing to have tort reform. Hypocrisy cuts both ways.

1 Comment

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  1. Daniel Spitler says:
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    No tort reform

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