Tuesday, September 20, 2011

The Forgotten Amendment

The Tea Party Movement seems to have forgotten precious guarantees of our United States Constitution or may purposely be ignoring it.  Tea Party members, who claim to be great patriots, are endorsing almost without exception the right-wing Republican candidates who seem to be hell-bent on destroying rights guaranteed to American citizens under the Seventh Amendment.  The Seventh Amendment reads as follows: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”

While much of the dissatisfaction of colonial Americans arose from the unfairness of taxes unilaterally leveled by the king, those onerous taxes were made worse by the fact they would be enforced in a court of admiralty which leveled judgments on citizens without the benefit of a jury.  John Adams rightly and vigorously complained of the practice.  John Adams once said, “We shall confine ourselves, however, chiefly to the act of Parliament, commonly called the Stamp Act, by which a very burdensome, and, in our opinion, unconstitutional tax, is be laid upon us all; and we subjected to numerous and enormous penalties, to be prosecuted, sued for, and recovered, at the option of an informer, in a court of admiralty, without a jury.”

Tea Party candidates continue, seemingly, to embrace right-wingers who, in the name of tort reform, appear dedicated to wiping out or disabling any right to trial by jury in the United States.  The tort reform effort is not based on fairness but simply on money, and in some cases so-called efficiency.  

If one reviews the tort reform program outlined by the various tort reform organizations for the last legislative session, it quickly becomes apparent the bulk of their program is to do away with, avoid, or hamper the jury system in Texas.

Changes in the Worker Compensation Law in Texas have made it almost impossible for an injured worker to be represented by counsel and to obtain a jury finding on the extent or value of his or her injury.  Our Republican Supreme Court and Republican majorities in the House and Senate have embraced arbitration as an inexpensive way to resolve legal disputes.  Arbitration is generally billed as an agreement by which parties agree to resolve their differences with an impartial arbitrator whose decision is final and binding and not appeal able to any court.  The problem is that once one examines arbitration in reality, it is either one of those “small print” items slipped into a consumer’s contract or part of an employment agreement whereby the choice of arbitration is one-sided: Agree to it, or seek employment elsewhere.  Far too many arbitrators are beholden to large corporations and render favorable decisions in their favor or face the prospect of not being used as arbitrators in the future.

Another device tort reformers use to short-circuit being tried by a jury of one’s peers is the so called multi-district litigation provision.  This device allows a hand-picked judge to designate one judge, perhaps far from one’s home, to decide all cases of a similar nature.  This device has been successfully used against victims of asbestosis.  Designating one or two special courts far from one’s home where the trial must be held causes even people at the point of death with this dread disease to have their case disappear into the black hole of legal cases.  Oftentimes it ends up the case is not tried until the original litigant is dead, buried and his will probated.  

I’m certain this is not what our founding fathers had in mind when including the right of trial by jury in our national Constitution.  Adams commented on this type of legal device as well, saying, “So it is also in the trial of causes between party and party.  No man’s property or liberty can be taken from him till twelve men in his neighborhood have said upon oath, that by laws of his own making it ought to be taken away, that is, that the facts are such as to fall within such laws.”

Dressing up in period costumes with three-cornered hats, waving the flag and condemning taxes does not a patriot make.  The devices mentioned above to avoid jury trials were sold to the American people and Texans by selling the notion that ordinary citizens do not have sense enough to judge their peers.  Most tort reform measures represent a basic mistrust of twelve citizens who sit in judgment of the evidence and decide the facts of civil cases.  The mistrust of ordinary citizens is amplified by the fact that the past majority of cases heard by the Texas Supreme Court involving the question of a jury finding have been reversed by the nine Republican members.  

Our nine Supreme Court justices, who never saw or heard a witness in a case, seem to believe their judgment should prevail over the twelve citizens who did.  Out of 30 cases heard by the Supreme Court in recent times involving the question of an adequate jury finding of fact, approximately 22 have been reversed by the Court.  

Obviously, our Supreme Court does not agree with James Madison who once said, “...trial by jury in a civil case is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”  Nor does it comport well with Thomas Jefferson who said civil jury trials are, “...the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”


Oscar Mauzy, former state senator and former Supreme Court justice, had a large sign hanging on the wall of his senate office.  It read, “Forgive and Remember.”  Unfortunately, too many voters have not adopted the part about remembering.   It is my belief too many voters do not necessarily forgive--they simply forget.  

The current rush and seeming obsession with trying to reign in deficit spending all of a sudden in America clearly demonstrates that too many Americans who have vivid recollections of the Great Depression are no longer with us.  Or, American leaders have collectively forgotten the lessons we should have learned at that time.

My mother, who is 96 years of age, recalls vividly how hard times were when many Americans literally did not have any idea where their next meal, or that of their families, would come from.  She recalls, with some emotion, the hopelessness of many Americans during that downturn.  

The lessons which apparently have been collectively forgotten by our leadership are that Roosevelt’s New Deal, with massive spending and a dedication to rebuild much of America’s infrastructure, began to pull us from the depths of America’s worst depression. The change in economics of having the government inject money into the economy was working.  Unfortunately, Roosevelt, much like Obama, yielded to the hue and cry from the right-wing to prematurely start dealing with the so-called looming deficit.  When Roosevelt’s focus switched from simply creating jobs by massive infusions of money, the road to recovery took a sharp downturn and led to a measurable setback in the recovery.

Currently, Pulitzer prize-winning economists and other experts on the world economy correctly advise us that cutbacks desired by the Tea Party in Congress are calculated not to create jobs but to create a reversal of a slow recovery from a recession.  There is living proof that these economists are right.  England has already tried austerity to relieve the joblessness situation in and it is apparently not working.  Germany, on the other hand, has pretty much ignored the deficit, continued to invest in public spending and revival of its infrastructure; its economy seems to be leaping forward in the effort to recover for the vast majority of citizens of Germany.  

We continue to be warned by experts that the premature dedication to austerity in America will short circuit our previous efforts to stimulate the economy.  Unfortunately, the folks who uttered not a word while George W. Bush gave tax breaks to oil companies and the mega-rich, and spent like a drunken sailors on two unnecessary wars, are now trying to convince America that the neediest Americans need to double their sacrificial efforts to save the country from future ruin.

Politics in many ways is a game of self-fulfilling prophecies.  Republican leadership in America vowed the election of Barack Obama would bring disaster and ruin to America.  Their entire effort has not been aimed at making America a greater nation but at guaranteeing the Obama administration will be a total failure.

Our state Republican leadership, beginning with Governor Perry, has been employing much of the same tactic to maintain control in our state.  Doesn’t it seem suspicious that in an election year our State Board of Education, controlled by our governor, relaxed the standardized test grading procedures so the vast majority of Texas schools appeared to have surged forward in the field of excellence?