I’ve just been reading the transcript of Monday night’s debate. Sen. Rick Santorum noted that as a senator he supported legislation to stop lawsuits that would have held gun manufacturers liable for crimes committed with guns they made, and that Rep. Ron Paul opposed the bill. Paul argued in response that tort law should be handled state by state, with no national legislation, specifically citing medical malpractice as an area of law that states should control.
Santorum came back at this argument thus: “[I]f we did not have a national liability bill, then people would have been able to go to states like, say, Massachusetts or New York and sue gun manufacturers where they would not pass a gun liability bill. So unless you have a national standard to protect guns — manufacturers of guns, you would create the opportunity for the elimination of guns being manufactured in this country and de facto elimination of the right to bear arms.” Paul then closed the conversation: “Well, this is the way — this is the way our Constitution disappears. It’s nibbled away. You say, well, I can give up on this, and therefore, I’ll give that, and so eventually there’s nothing left. But, no, tort law should be a state function, not a federal function.”
Congressman Paul is right about medical malpractice law, but he’s wrong about the gun-manufacturer bill, because he is wrong to say that “tort law”–with the implication of “all tort law”–”should be a state function, not a federal function.” When states set up rules for medical-malpractice cases, the harms and benefits of those laws accrue within the states. For example, a set of rules tilted against doctors might lead doctors to take up practice outside the state, in which case they escape the state’s rules. Product-liability cases are different: Here letting state governments do whatever they want will yield the kind of scenario Santorum envisions, in which states with extreme pro-plaintiff rules set a de facto national standard. (Much of the litigation explosion results from precisely this dynamic.)
One of the main reasons the Constitution gives Congress the power to regulate commerce among the states is to protect such commerce from state governments. The goal was to allow national markets to develop free from state-level protectionism or state attempts to project power beyond their borders. Perhaps Rep. Paul is confusing the Constitution for the Articles of Confederation.