The Last Freedom

March 10, 1995|By RICHARD REEVES

Washington -- The Republican ''revolutionaries'' running wild around here, claiming the mantle of individual liberty, have certainly got it wrong about one great freedom: the American way of suing the bastards!

It is nice to see the White House (in the persons of White House Counsel Abner Mikva and Attorney General Janet Reno) finally come alive on the proposed ''common-sense legal reforms'' of Gingrich Republicans. But the Democrats, in their compliant way, do not go nearly far enough when they denounce those proposals as anti-consumer or anti-middle class. Blocking the little guy's right to sue the big guys is more than that. It is fundamentally anti-American.

In the end, after you have been broken by the best-dressed crooks, rolled over by big government, screwed to the wall by big business, what do you have left except a day in court? That day in court is at the heart of American freedom -- the chance to demand enforced fairness. That chance to make them pay for what they did to you -- that shot at individual justice -- is what made the United States of America a truly revolutionary country.

The American ideal of equal access to the courts -- with all its frustrations and complications -- was designed to reduce the power of both politics and money, and increase the power of each citizen. That is why lawsuits are so restricted (as far as I can tell) in every other country in the world.

In Japan, for instance, there are so few lawyers and judges that there are years-long waiting lists for court dates to challenge the corporate and government powers of Japan Inc. -- all that delay in the national interests of efficiency and productivity. The Japanese have, in effect, stripped individuals of any rights of dissent or complaint -- or of compensation for injury. Like many countries of democratic gloss, Japan keeps the tools and weapons of a police state just below that shiny surface.

Individual freedom, in the last resort, is about suing the president, the Congress, Philip Morris, General Motors or General Electric, or the joint chiefs of staff. The little guy usually loses, of course, but without the courts, he would always lose. Ralph Nader and Paula Jones, the snail darter and the spotted owl, may be pains in parts of the body politic and sand in the gears of progress, but their days in court are what make America free -- and great.

It has been that way for a long time, from the beginning, really. You might not want your son or daughter to marry a television-advertising whiplash lawyer or other ambulance chaser -- who, in addition to everything else, are often big political contributors -- but their work, dirty or clean, can be the only true access ordinary citizens have to the levers of power in a country this big and complex.

Newt Gingrich, the leader of the Republican court-reform band, has told his followers they should read Alexis de Tocqueville's ''Democracy in America'' -- as we all should. If they do, they will find this near the end of the second volume, published in 1838:

''There is hardly a political question in the United States which does not sooner or later turn into a judicial one. . . . It is the essence of [American] judicial power to be concerned with private interests and gladly to pay attention to trivial subjects submitted to its consideration. Such power is therefore peculiarly adapted to the needs of freedom at a time when the ruler's eye and hand are constantly interfering in the tiniest details of human action. . . . ''

Fourteen years ago, in retracing Tocqueville's American travels, I interviewed Justice Potter Stewart of the Supreme Court because Tocqueville, in 1830, had interviewed John McLean, a justice from Stewart's hometown of Cincinnati. Stewart's words then have stuck with me:

zTC ''In my lifetime, the courts have replaced the frontier. When this country was new, a non-conformist or someone who just wasn't making it could always go west. There was always space. Now there is no more space, and the courts have been called on to protect the rights of those individuals. The courts are trying to provide that space.''

Stewart, who was a Republican politician before being appointed to the court by President Eisenhower, also said that the reason for the increase in judicial power in his lifetime had been the abdication of power by elected legislators and executives who shied away from politically controversial problems and questions.

I, for one, hope that the chief executive now, President Clinton, has the common sense and guts to veto a politically popular legal-reform bill. However, if one passes and he does not or cannot block such a law, controlling the right to sue will have one certain effect I might like: It will greatly increase the power of the press. An American deprived of his day in court will have no place to turn in pursuit of justice and revenge for perceived injustice than to the ladies and gentlemen of the press.

9- Richard Reeves is a syndicated columnist.

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