African-Americans and women were once, at law, lesser beings. They were made that way, in part, by not having the right to go to court and get redress there, the right by which the powerless hold the powerful to account. Why is it even plausible that so fundamental a right is not protected by the Constitution?

This rhetorical question has an answer: The millions of dollars being spent to convince the public that lawsuits are the root of all evil buy a lot of plausibility. John Goldberg is fighting against a powerful public relations machine when he writes, even in an academic journal, that the right to redress is not something that can be made to disappear with a swish of a legislative magic wand.

How basic is the right to redress? In the nasty, brutish state of nature, I did not have a good way to make my neighbor pay up when his cows ate my corn. Bopping him on the head and taking a cow would have provided a certain immediate satisfaction, but was not a recipe for stable, peaceful relations. Stability and peace require rules of recompense and an arbiter to enforce them. Thus was government born.

Our government was born with the duty of providing redress to injured persons. Chief Justice Marshall said so in Marbury. We are not comfortable talking about duties of government. We talk about rights against government. But this is the social contract. Under contracts, one person’s right is another person’s duty. Whether you call it my right or the government’s duty, the Constitution requires the government to make my neighbor pay up. The right to redress is the consideration that supports the social contract.

That the Constitution includes a right to redress should shock no one. The Constitution was built around the common law and the common law was built around the right to redress: Where there is a right, there is a remedy. The Framers were steeped in the common law, and the constitutions of the states they represented at the Constitutional Convention enshrined the rights the common law gave.

The Framers did not invent the rights to petition for redress of grievances, to be free of unreasonable searches and seizures, to habeas corpus. Those rights were the vaunted rights of Englishmen, and the original state constitutions—and present state constitutions—contain catalogs of them. The right to redress is a featured item in the catalogs.

The right to redress is more than hinted at in the petition clause of the First Amendment. Petitions were the procedure by which the right was invoked. A petition was the way I asked the government to make my neighbor pay. The law effectively required that government respond to petitions, a strong suggestion that a right to redress is implicit in the right to petition.

The First Amendment right to petition includes the right to sue. The First Amendment, as proposed, protected petitioning only Congress. The text was broadened to protect the right to petition all the branches, a recognition that sovereign power wielded in England by Parliament was here purposefully divided among co-equal branches. The right to redress simply assures that once I get into court, there is a remedy I can get.

The First Amendment right, along with the Seventh Amendment right to have juries hear tort claims, gives a procedural component to the right to redress, and links the right peculiarly to the judicial branch. The common law was both substance and method, with method arguably more important than substance. It was designed to change slowly, through experience, administered by judges and juries.

What does all this mean for tort reform? Legislative power over torts is not plenary. It is shared with the judiciary. The availability of redress being necessary to the endurance of government, and it being in part their responsibility to provide it, courts are justified in giving special scrutiny to legislation that limits remedies.

Goldberg suggests that courts weigh burdens on victims against public benefits derived from tort restrictions. Interestingly, he says that courts should look at justifications legislatures give for their actions.

Legislatures owe both the courts and the public an explanation for why they would curtail the right to redress: What compels some sudden shift in the normally slow process of adapting tort law to changing conditions? Temporarily ascendant political power does not suffice to displace the more enduring value of redress.

To curtail a right that justifies the very existence of government, the means employed must be proportionate to, and must actually advance, the ends sought. This kind of analysis is employed in the recent Wisconsin decision, and is well-established in both case law and academic literature dealing with intermediate scrutiny in equal protection review.

When the legislature seeks a sideways change, by eliminating a remedy but substituting another, the law of takings provides a good analog for what should happen under right to redress analysis. A remedy, like property, can be taken, provided there is a public purpose in doing so and provided just compensation is paid. This idea is reflected in cases upholding no-fault workers' compensation schemes, which were found to provide a reasonable quid pro quo for the difficult-to-prove common law claims they replaced. This same rationale was invoked by Congress in creating the 9/11 victims’ compensation fund, which substituted certain, but lesser, compensation for more speculative, but more lucrative, tort remedies.

One of the most popular current tort reforms, caps on noneconomic damages in medical malpractice cases, fails this test miserably. Noneconomic damages caps affect only meritorious cases, ones in which a jury has found that the damages exceeded the cap. They affect relatively few cases, causing a very small number of persons to bear their entire burden. They have a perniciously disparate impact on women, as women disproportionately suffer injuries, such as loss of reproductive capacity, that we define as noneconomic. They do almost nothing to advance the ends they are said to advance.

Then why all the fuss about them? Because the end sought to be advanced has nothing to do with advancing justice and everything to do with the hope that physicians and insurance companies will donate generously to the political campaigns of proponents of caps.

Whether the ideas Goldberg propounds take hold will be a test of how much ideas matter in a body politic so lubricated by money. But have no doubt that the law of trespass deserves a central role in constitutional discourse. While forgiving trespass is an ecclesiastical matter, redressing it is at the core of what government is about.

John Vail is Senior Counsel for Constitutional Litigation at the Center for Constitutional Litigation, a national law firm based in Washington, DC and dedicated to the protection of the right to redress and the right to jury trial. Currrently he is counsel in cases in which injured persons' remedies are purportedly curtailed by recent federal legislation barring claims against manufacturers of firearms.

Preferred Citation: John Vail, Big Money v. The Framers, Yale L.J. (The Pocket Part), Dec. 2005, http://yalelawjournal.org/forum/big-money-v-the-framers.