Tort Reform, Where is the Constitutional Basis?

By John (January 2011)

            We’ve seen in my essay on abortion (The Good, The Bad and The Ugly) that the arguments asserting abortion as not being a right specifically granted in the United States Constitution are species at best.  The right to personal privacy is God granted and was merely being protected by specific provisions in the United States Constitution.  God granted man rights, not government.  The states may draw limits on man’s activities, but the State can overstep their authority in which case the federal government under the 14^th Amendment case law step in and preserve to the individual person God given rights.  

So, how about tort reform?  Specifically, we start with the proposition that the Constitution was created by the States.  The States met through delegates in Philadelphia and began the creation of the United States of America culminating in final form in 1787.  It did not exist up until that time, even on paper, until it was draw and then over a period of time, ratified by the requisite number of states.  Prior to that time, the States were merely a loose confederation.  Only at the point of final ratification did the federal government as we now know it come into existence.

Before the creation of the federal government, each state had its own property laws, contract laws, criminal laws, and tort laws, each integrated into the fabric of a system of laws for each individual State.  Granted, they were mostly grounded in English Common law.  To the extent they had differences those differences had to do with geography, culture, people, economic base (agricultural, mining, industry, etc) amongst other differing underlying support system, including the thinking in their respective state legislatures.  There was no federal property system, or contract system, or criminal system, or tort system provided for under the United States Constitution.  Each state was going to, and did, retain its own laws and legal system.  Today, for example, there are eight states which have community property systems growing out of Spanish influence, affecting all other areas of the law within the State including tort law.  Each has a particular geography, people, culture, and some would even argue, language, again albeit based loosely on English.  Texas is different from California which is different from New Mexico which is different from Colorado which is different from,,,,,,, point made.  Again, it affects not only the property system, but the contract law, the family law, the criminal law and tort law.

All jurisdictions in the United States with the sole exception of Louisiana are directly influenced by the English Common law.  Louisiana has a legal system based on the Napoleonic Code.  The French influence is different from any of the other 49 jurisdictions whether in property law, contract law, or tort law.  Again, there is a distinct Louisiana culture, language, etc, with a history influenced more by France than any other European country.

Despite the trend over the last 40 plus years within the states and their liberal law schools to create “uniform” model codes for adoption in all states and thereby attempt to make uniform a body of law all throughout the United States, the fact is that each state continues to retain their own system of laws in property, contract, criminal, family, and tort.  Many jurisdictions, especially Texas, have never adopted a uniform model without substantial change being made by the Texas legislature to adapt the law to the character, culture and history of Texas.*  The Uniform Commercial Code is a good example where Texas made a number of major changes to accommodate their oil and gas history as well as their large cattle industry.**

            So, the question ultimately presented to those who wish to legislate tort reform on the federal level is, “where in the United States Constitution does it provide that the Congress may pass laws changing, or even effecting, state tort law?  The Conservatives and many Republicans would ask us to make a federal law, tort reform, whatever form it may take, and change the substantive tort law in all fifty states.  One would think that such a power on the part of Congress must be granted in Article One.***  After all, again all federal power is granted by the States specifically in the Constitution.

What does our search reveal?  It’s not there.  It’s not granted.  It’s not express.  It’s not implied.  Folks, it just isn’t there.  And it shouldn’t be based on the very general outline of the history of the Constitution as set forth above.  Tort law is all State law existing in each State. Should Congress do it just because the liability insurance companies want it?****  That would be a total affront to the dignity which is, or at least was, the United States Constitution.

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*The author still agonizes over the Bowie knife model criminal code being adopted in Texas without regard to the history of Jim Bowie and the Alamo.

**There are prepared and lobbied uniform codes in virtually every area of the law, such as family law, criminal law, and commercial law, and in some areas that test the bounds of sanity such as conflicts of laws.  And although there are only two areas specified in the Constitution, there are literally thousands of federal crimes (see essay on Federal Crimes).

***Would they argue 1-8-3 the commerce clause allows the federal government to change State substantive law?  In the case of tort reform, one would think this would be more of a stretch than Obama Care.

****Of course, the Republican Party has become a lap dog for the liability insurance industry (not the Tea Party part).