31 July, 2008

The Candidates And the Seventh Amendment

This is the seventh post in an ongoing series regarding the major Presidential candidates and their views on civil liberties.

This post is about Senator John McCain's (R-AZ) and Senator Barack Obama's (D-IL) views pertaining to the Seventh Amendment of the Bill of Rights. This amendment follows up on the Fifth and Sixth's discussion of criminal trials with civil trial protections.

Here's the text:

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.

As usual, we'll start with Barack Obama.

The only thing I can find about Barack Obama relating to civil trials relates to "tort reform". And he's been somewhat dichotic with respect to that, generally voting with the trial lawyers, but not always. However, despite my own opinions on tort reform, it does not generally appear to cross the boundaries into a Seventh Amendment issue, in my opinion.

Next to John McCain.

I had the same troubles with McCain, however there's much more on him with regards to "tort reform".

Senator McCain's record on tort reform is generally positive. These votes include:

  • Sponsored the Class Action Fairness Act of 2005 which sought to curb lawsuits by shifting suits from state to federal courts, by requiring judges to review all coupon settlements, and by limiting attorneys' fees in non-cash settlements[65]
  • Voted for a bill that would bar lawsuits against manufacturers, distributors, dealers and importers of firearms[66]
  • Voted for a bill that would place caps on damage awards in medical malpractice suits against obstetricians and gynecologists[67]
  • Voted for a motion to proceed to a bill that would cap non-economic and punitive damages in medical malpractice suits[68]

This generally positive record, however, is tarnished by Senator McCain's sponsoring of and outspoken support for the Patients' Bill of Rights,[69] which encouraged an increase in the number of frivolous lawsuits filed against healthcare providers. He also voted against the Litigation Uniform Standards Act, which limited the conduct of securities class actions under state law.[70]

There's some important stuff here and it does skirt around the edges of the Seventh Amendment. While he has placed caps on damages, he has also supported the 'Patients' Bill of Rights". He's hammered against "frivolous lawsuits" and and acted to restrict civil lawsuits against people acting in accordance with the law. But, the Seventh Amendment doesn't say anything about citizens having the right to make a civil claim, but only how civil claims should be handled.

This is a difficult case. In general, Obama's views on civil trials have sided with the plaintiff, and McCain's have sided with the defendant. But not always, as we see with the Patients' Bill of Rights. Either way, they're supporting one person's rights over another's.

But it's vague, as I said. You have to stretch a bit to make any of their statements or votes apply directly to the Seventh Amendment.

So, on to the grades.

Typically, if I can't find anything in my research that directly shows views contradictory to an amendment, I have given the candidate an A+. However, neither candidate seems to warrant such a grade in this case, since they have skirted around it. I've decided to knock them down just a bit.

Obama: B

McCain: B

I would've dropped McCain to a C without his support of the "Patients' Bill of Rights". Obama gets a B solely by virtue of his brevity of public service. Frankly, I'm not terribly comfortable with either of these grades, but I don't know what else to give them. If someone can provide additional information or make better arguments than I have, I'm certainly willing to listen and adjust their scores.

Seventh Amendment: No Advantage

UPDATE: Grades lowered per this post.

Results so far:

Obama McCain
First Amendment* F
Second Amendment D- C-
Third Amendment B B
Fourth Amendment D+ D+
Fifth Amendment D+ B-
Sixth Amendment B B
Seventh Amendment C C

* Obama's First Amendment grade lowered as documented in this post.

UPDATE: Obama's First Amendment grade lowered to F as documented in this post.


  1. Include the third party candidates in these. Let the voters know they have a choice. Or... are you a protector of the two party system?

  2. No, I'm not a protector of the system. I do, however, have limited time and resources.

    And, frankly, the kind of information that I'm looking for is often hard to find on the other candidates.

    I considered doing so, and decided it would take too much effort, for too little gain. Frankly, I wish that wasn't the case, but I can only play the hand I'm dealt.