By Steve Byas

I am a firm believer in the concept of limited government, and in the practice of settling our disputes in a civilized manner. This civilized manner involves what I call the twin boxes of liberty -- the ballot box and the jury box.

In 1776, when the Founding Fathers met in Philadelphia and agreed to the Declaration of Independence, they had no way to change what they considered the tyrannical behavior of the British government. Therefore, they invoked a right of rebellion because the Parliament had, in the Declaratory Act, and in practice, stated that they had a right to rule the colonies "in all matters, whatsoever." It reminds one of the response of then-House Speaker Nancy Pelosi, who answered the remark that the ObamaCare bill was an unconstitutional extension of the power of the federal government with a cackling response of, "Is that a serious question?"

Unlike our forebears of 1776, we did not have to reach for the cartridge box. We resorted to the ballot box, voting the imperious Pelosi out of her speakership. Ballots replaced bullets as the "weapon" of choice for the patriots of 2010.

Yet, despite our reliance upon the ballot box to settle disputes over government action, we limit the power of the voters in their use of the ballot box. How so? The Constitution itself is a limitation on the power of government, whose elected officials rule with the "consent of the governed." There are many checks on the voice of even the majority to take away liberty. The Bill of Rights is an even clearer expression of the idea that government -- even an elected one -- should be limited.

The majority of Americans cannot simply vote to make an official religion for the United States (first amendment). The prohibition against abridgment of free speech is there to protect unpopular as well as popular speech. The second amendment does not place the right to keep and bear arms in the hands of the electorate. Private property is protected in the fifth amendment. We don't take a majority vote on whether someone is guilty of a crime. We leave that to a jury. And, even a jury must have a unanimous vote to convict someone of a crime, not just a majority.

Which brings us to the second box of liberty, the jury box.

For some reason, there are those who believe the jury should have no limits in its power. Perhaps a recent comment made by an avid trial lawyer illustrates my point best. This trial lawyer castigated a state representative who voted for a recent tort reform bill, saying, "Good thing it still failed overwhelmingly due to true conservative Republicans who trust we the people to make decisions in the jury box more than you politicians."

This amazing statement elevates unelected jurors above that of elected legislators, which is absurd. Jurors should be limited in their power, just as are legislators, judges, and those in the executive branch.

Yet, when it comes to a jury, there are those who give them the power of a Caesar to rule at whim.

But only in civil cases. For some reason, those who believe that unelected juries should have greater power than elected legislators would only give this power to jurors in civil cases, not in criminal cases. Oh, they'll give them the power to nullify a law, but not to set any criminal penalty they want. They do not advocate allowing a jury to assign the death penalty for car theft, or life in prison for embezzlement.

When it comes to civil cases, these jury supremacists would place no limitations on the power of a jury whatsoever. Why, if they wish to award eleven million dollars for someone who spilled coffee on herself, driving away from a McDonald's drive-through, that is OK by them.

In other words, when it comes to a civil case, the jury supremacists do not believe in limited government.

One specious argument often used by the judicial supremacists is that the "jackpot justice cases" one reads about do not happen in Oklahoma. They argue that we should not be changing Oklahoma law because of what happens in another state. Just because a judge and jury in another state might allow a lawsuit against, say the manufacturer of a Colt revolver because a criminal used one in the commission of a crime, the judicial supremacists argue that would not happen in Oklahoma, because, as I have heard it express, "We have lots of hunters here."

How naive! We do have liberal judges in Oklahoma -- and liberal jurors.

I also believe in property rights. A person's property should not be in jeopardy simply because some socialists on a jury think "we should spread the wealth around." Even those who are supposedly conservative Republicans (or constitutionalists, or libertarians, or whatever the term they are using this week) have bought into this hot Marxist rhetoric.

I received some comments by e-mail that limiting a jury's power is unbiblical and unchristian. In proof, some verses are cherry-picked from the Old Testament. For example, a verse (Exodus 23:6) is highlighted: "Do not deny justice to your poor people in their lawsuits." Limiting the amount of wealth we spread around is denying justice?

Another verse quoted was Leviticus 19:15, which reads, "Do not pervert justice; do not show partiality to the poor or favoritism to the great." Interestingly, the person who sent this to me had or favoritism to the great highlighted, but not do not show partiality to the poor. Actually, I think this verse makes good law -- not showing favoritism to either rich or poor, but rather deciding the case on its merits.

Holy Scripture places limits on award amounts. In Exodus 22:9, the guilty party in a property dispute "must pay back double to his neighbor."

A few years ago, I went into Blockbuster to rent a movie, and received some coupons for a free rental. After looking at it closer, I discovered that I had "won" a lawsuit against Blockbuster as part of a "class action," in a settlement over some practice or other of Blockbuster that was considered wrong. Doing some more research on the subject, I discovered that Blockbuster customers got free rental coupons, while the lawyers who had filed the class action suit received millions of dollars, not a couple of free rental coupons.

As I have already said, the jury box is the place to settle our disputes in a civilized manner. But, placing limitations upon the power of a jury is NOT gutting the Seventh Amendment, any more in limiting the power of Congress in creating a national religion is gutting the power of Congress to make laws.

One case I read about a few years ago involved a woman driving a Ford Pinto down a country road and striking a horse that ran out in front of her. The horse was knocked up into the air, landing on the roof of the car. The roof caved, killing the driver. Did the family sue the horse owner? Maybe, I don't know, but they certainly sued the Ford Motor Company! Why? Because under the theory of joint and several liability, if a defendant is as little as 1% at fault, they must pay up to 100% of damages. Ford, you see, had "deeper pockets" than the owner of the horse.

Limiting the liability of defendants by reforming joint and several liability is a good example of a proper limitation on the power of a jury in a civil case. This is not to say that any limitation dreamed up the Oklahoma Legislature is a good idea. We do not want certain powerful individuals in Oklahoma hurting Oklahomans at will, and not about consequent civil actions that would cause them serious financial pain. We must look for balance between excessive awards that are based on Marxist concepts, and awards that do not properly compensate the injured party.

But to say that jurors should be able to do anything, with no limits, is flat wrong, and flies in the face of the concept of limited government.

One final thought: this issue is sometimes confused or at least compared to the power of a jury in a criminal case to nullify a law, by simply voting to acquit the accused, regardless of guilt. As a practical matter, any jury could do that in any criminal case, as in the case where O.J. Simpson got away with murder, because the jury simply chose to let him go. I think that is wrong, but as a judge must consider the Constitution as superior to any law passed by Congress, a juror who believes the law a person is charged with violating could, in good conscience, vote to acquit. But, a juror should not nullify a law just because he doesn't agree with it.

If he wants to do that, he should run for Congress, or the state legislature.

Steve Byas is editor of the Oklahoma Constitution newspaper. He may be contacted at: byassteve@yahoo.com