18 Nov

Top Tea Party Constitutional Law Expert Slams HR 5

Rob Natelson, one of the leading Constitutional scholars of the Tea Party movement, declared on Tuesday that “H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments.” That bill, as I’ve described numerous times here, would place new federal limits on lawsuits filed against a broad range of health care-related companies, including doctors, hospitals, drug & device companies, insurance companies, and nursing homes. Professor Natelson is an expert on the Founding Era; a former Republican candidate for Governor of Montana; and now Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Colorado, a non-partisan, free-market-oriented public policy research organization. Writing in his personal capacity to the Chairmen and ranking Members of the House Judiciary and Energy & Commerce Committees, he cited the Founders’ writings for concluding that (1) civil actions in state and federal courts are not “commerce” under the Commerce Clause; and (2) H.R. 5 is not justified under the Necessary and Proper Clause. Moreover, according to Professor Natelson, the proper interpretation of the Commerce Clause excludes “health laws of every description,” a phrase used by Supreme Court Chief Justice John Marshall in the landmark case of Gibbons v. Ogden, 22 U.S. 1 (1824). Finally, Professor Natelson asserts that the section of H.R. 5 which purportedly protects states from pre-emption “grants protection only when the state undertakes policy choices preferred by Congress.” He describes that section as “more in the nature of an insult to the states than a protection of federalism.”

Professor Natelson also posted the letter on The Electric City Weblog in an entry titled, Yet MORE disregard for the Constitution — this time from Republicans. You can download Professor Natelson’s letter from that site (4.6 MB Acrobat). I hope you will disseminate his letter widely.

18 Nov

WHAT Constitutional authority for limiting Constitutional rights

The new House GOP Majority is set to repeal ObamaCare, which is fine with me, and try to save health care spending through some amorphous medical malpractice “reform.” Here is the short bill that the House will pass on Friday to instruct House committees to look for those “savings.” BUT WAIT, on December 17, they also promised to cite a “Constitutional authority” for each bill, and advised the Members to seek help from certain named think tanks, including some top conservative groups. But where will they find the authority for medmal reform, which abrogates the 7th Amendment right to civil jury trials and the states’ rights protected by the 10th Amendment?

It’s a good guess that the “conservative” organizations cited in the December 17 memo will point to the Supremacy and Commerce Clauses as their source for federal medmal reform of any kind. I wrote on December 6 that two top Republican legal experts, including one at the Cato Institute, cited those two clauses at a Federalist Society panel as rationale for the federal preemption of state jury decisions in medical device and drug cases. But they can’t hide their inconsistency. As I wrote on December 14, the ObamaCare decision exposed the Cato Institute as hopelessly inconsistent to the point of absolute hypocrisy. One Cato legal expert condemns the use of the Commerce Clause as a basis for the ObamaCare takeover of health care, while another Cato legal expert defends the Commerce Clause as the basis for tort reform through federal preemption of state jury decisions in drug and medical device cases. Is that really the type of guidance that House leaders want to give their new committee chairmen?

Other organizations cited in the December 17 memo are no better; on October 6, I documented the compromise of many conservative groups on Constitutionally protected rights. None of the mainstream conservative groups are willing to defend the 7th Amendment, and they also don’t appreciate how federal preemption of state jury decisions neuters the 10th Amendment, as well as the 7th Amendment.

As I wrote on December 14, the co-“Father of the Bill of Rights,” George Mason, knew 222 years ago that some group would eventually try to jam Supremacy Clause-driven federal law down our throats, and he insisted that the ultimate power of the Supremacy Clause be limited by the Bill of Rights. Will Tea Partiers accept the rollover of the 7th and 10th Amendments by the new majority, or will it speak up? Will they realize that compromising the right to sue for medical malpractice would also compromise the right to sue to protect religious liberty; protect the unborn and womens’ health; fight bureaucratic power; and promote other conservative causes. WE THE PEOPLE cannot allow any Congress to use the Supremacy and Commerce Clauses to gut our unalienable rights.

18 Nov

What Is Crony Capitalisms Secret Deadly Weapon Against Our Rights updated

Crony Capitalists (CCs) never quit trying to entice federal officials into giving them special access or favors and shutting millions of the rest of us out of court, so they have no accountability to a local jury for negligence or shoddy service. They’ve enlisted scores of Members of Congress, many of them self-proclaimed backers of states’ rights, in an effort to to override the Founding Fathers’ clear guidance that Congress doesn’t have authority over state tort law, specifically with respect to lawsuits over healthcare negligence. True Federalists have had some recent success in persuading conservatives to not accede to the CCs’ demands, but the CCs never quit. And while we fight that one big battle, CCs have opened up another front, with enormous success thanks to another arm of an all-powerful Uncle Sam.

Under the nose of the vast majority of Americans, Crony Capitalists have been moving to shut out millions of us from exercising our 7th Amendment rights over bad products or services, based on one rarely read paragraph in consumer contracts. That paragraph, in everything from cell phone and car contracts to employment agreements, requires us to submit to binding arbitration, and to not file a lawsuit, as a condition of even buying the product or service. Forced arbitration clauses eliminate the ability to hold wrongdoers accountable, even in the most egregious cases involving the abuse of children and the elderly, intentional wrongdoing, and gross violations of law.

These clauses force us to give up our God-given, constitutionally protected right to go to court in favor of being relegated into a system of secret arbitration, where the arbitrators and the rules are chosen by the very company against whom the individual has a grievance. There are no due process standards, no guarantees that the applicable laws will be upheld, and no public records of the proceedings.

Let me stress that there’s nothing wrong with voluntary arbitration in which both sides have an equal chance before an impartial arbitrator in an open process. That’s not what happens in the current arbitration environment. The little guy has almost no shot whatsoever. And the mainstream press never touches the subject.

It’s been trending this way for years, but Crony Capitalists have received a huge boost from the supposedly-conservative Supreme Court in the quest to shut courthouse doors over forced arbitration clauses. The Court’s recent decisions have turned an almost-80-year-old law, the Federal Arbitration Act, into a giant club with which to crush states’ and individual rights. Two Texas state judges summarized the state of forced arbitration and recently wrote the following:

Our Seventh Amendment right to a jury trial is vanishing before our very eyes thanks in large part to an increased reliance upon alternate dispute resolution and mandatory arbitration. While a sound argument can be made for the utility of arbitration in arms-length commercial transactions, the consequences are particularly dire in situations involving consumers and employment consequencesAT&T and Rent-A-Center pushed the FAA’s scope to new limits. Courts are now unlikely to find contracts with arbitration provisions unconscionable no matter what state law provides. It is obvious that the application of the FAA has expanded beyond its drafters’ intent and in the face of apparent deficiencies.

Last week, a federal securities regulator gave preliminary approval to a plan by the discount brokerage firm Charles Schwab to require all 8+ million accountholders to agree to forced arbitration, even if Schwab violates securities law. POOF! There goes the constitutional rights for over 8 million people. Betcha every stock brokerage firm copies Schwab, basically enabling Wall Street, which already liquidated billions in pension accounts, to throw ethics out the window again and take investors into another financial crash without penalty.

Tomorrow we’ll see if the Supreme Court will take forced arbitration another step further and force small businesses with American Express accounts to submit to forced arbitration procedures designed and run by AMEX. If the Supremes are consistent, every small business with a Gold Card will know how individuals feel when the phone company tells us to go to arbitration or enjoy our crummy phone.

WHAT’S NEXT?! Will we see a sign on the grocery store door and on receipts, telling us that the purchase of food there constitutes an agreement to not sue it for spoiled, poorly stored food that makes us sick? Will we see a little paragraph on our car mechanic’s bill, telling us that we can’t sue for a dangerously negligent care repair, even if we’re killed?

When will Congress start taking this seriously and change the Federal Arbitration Act so we can exercise our rights in state courts, as the Founders said we should?

UPDATE, March 4: I Discussed this issue on the What’s Up radio program, hosted by Terry Lowry and broadcast on 100.7 FM KKHT, the Word Live stream at www.KKHT.com in Houston, TX, and on KBXD-AM 1480 in Dallas. You can download and listen to the interview in three segments:
Segment One
Segment Two
Segment Three

18 Nov

When Clarence Thomas John Roberts Defended The 7th Amendment

The Seventh Amendment provides that ” [i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved… Accordingly, we must conclude that the Seventh Amendment provides a right to a jury trial where the copyright owner elects to recover statutory damages… The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. It has long been recognized that “by the law the jury are judges of the damages.” Lord Townshend v. Hughes, 2 Mod. 150, 151, 86 Eng. Rep. 994, 994-995 (C.P. 1677). Thus in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935), the Court stated that “the common law rule as it existed at the time of the adoption of the Constitution” was that “in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.”

So wrote Justice Clarence Thomas in his opinion for a unanimous Supreme Court, when it ruled in a 1998 copyright infringement case that the Seventh Amendment requires the right to a jury trial where the copyright owner elects to recover statutory damages. In Feltner v. Columbia Pictures Television, Inc., the Court overruled the Ninth Circuit Court of Appeals, which had affirmed a district court’s ruling denying Feltner’s motion for a jury trial. Justice Thomas’ opinion included a discussion of the applicability of the Seventh Amendment to copyright infringement cases and, in effect, a terrific defense of the right to a civil jury trial and the role of local juries. Justice Thomas noted that even before adoption of the Constitution, in England and in the American colonies, “copyright suits for monetary damages were tried in courts of law, and thus before juries.” And he wrote that the Copyright Act of 1790 didn’t change that practice.

Ironically, the attorney asserting Mr. Feltner’s Seventh Amendment rights was John Roberts, now the Chief Justice of the Supreme Court, and during oral argument before the Court, he eloquently noted the historical role and significance of civil jury rights enumerated under the Seventh Amendment:

In light of clear historical practice on both sides of the Atlantic prior to 1971, Feltner had a right under the Seventh Amendment to have a jury make that finding and others on which the award was based and determine the amount of damages to be imposed within the statutory limits.

The idea that… when Congress fixes the amount of the penalty it can therefore delegate that task to judges ignores the whole purpose of the Seventh Amendment.

The Seventh Amendment is to protect against judicial bias and corruption and overreaching and, while that’s not implicated when Congress fixes the amount because Congress is doing that, the judge is just applying it, when you give that task to the judge the whole reason for having the Seventh Amendment comes into play…

As someone who has criticized the Roberts Court for decisions denying civil jury trials in a number of preemption and arbitration cases, I was surprised to learn of this defense of the Seventh Amendment by Justice Thomas. My thanks to Bob Peck of the Center for Constitutional Litigation in Washington for pointing it out. Now if only the Roberts Court would only take a realistic view of the practical and harmful impacts of federal preemption and forced arbitration clauses on our right to a civil jury trial.

18 Nov

Founders Protected Civil Jury Trials in State Courts Too

Tomorrow I will be in Nashville, TN, to promote the universal right to civil jury trials, standing alongside the Tennessee Association for Justice and Susan Saladoff, producer of the documentary movie, Hot Coffee, which tells the truth about the famous McDonald’s “hot coffee” case. As I mentioned in an interview with the Tennessee Public News Service, the “tort reform” side has mythologized that case, completely distorting the facts. Judson Phillips, founder of Tea Party Nation, rebutted those myths with actual facts in a December WorldNetDaily piece on the unconsitutionality of federal tort reform. I’m very pleased that Judson will join us tomorrow in Nashville.

It’s critical that Americans learn of the importance that the Founding Fathers gave to the right to civil jury trials for all causes and in all courts, state and federal. Historian Pauline Maier’s book, Ratification: The People Debate the Constitution, 1787-1788, has drawn rave reviews from a number of conservative legal scholars. Randy Barnett called it “marvelous” and described it as “the first comprehensive narrative of the ratification of the U.S Constitution, from the Philadelphia convention, through each of the states (in order of deliberation) and the drafting and adoption of the first 10 amendments.” So I downloaded it on Kindle and searched for references to the right to a civil jury trial. And the book refers to a number of instances in which the states discussed and debated the need to protect that right in explicitly in the Bill of Rights after the delegates to the Constitutional Convention rejected motions to do so in the Constitution.

The benefit of the right to civil jury trials and the need to protect that right was a part of numerous state ratification conventions. For instance, the delegates to the Pennsylvania ratification delegation entered into a heated argument over whether Sweden had utilized, and then eliminated, civil jury trials and the impact on civil justice, which was resolved only when a commentary by the English jurist William Blackstone proved that civil jury trials had been commonplace thoughout Europe. The book documents similar debates in Connecticut and Virginia, the latter resolved by reference to the same Blackstone commentary that determined the debate in Pennsylvania. No less a patriot than Patrick Henry argued that the lack of explicit protection of jury trials for civil and criminal cases would lead to the loss of all rights. It was these debates that eventually led James Madison to propose the inclusion of what became the Seventh Amendment in the package of constitutional amendments proposed during the first Congress. And as I’ve documented in posts here, most state constitutions explicitly protect the right to civil jury trials.

I hope tomorrow’s events in Nashville will be a springboard to a nationwide discussion on the meaning of the Seventh Amendment and the need to protect the God-given right to civil jury trials in state and federal courts. It’s clear from the documentation of the state ratification conventions that the Founders did not intend to see this precious right limited or eliminated in state courts.

18 Nov

Look Whos Forging Right-Left Coalition to Stop Crony Capitalism

Any conference that puts conservatives such as James Glassman, Fred Smith of the Competitive Enterprise Institute, Pete Sepp of the National Taxpayers Union, and Judson Phillips of Tea Party Nation with Jim Hightower, Medea Benjamin of CODE PINK, and Lori Wallach of Global Trade Watch is worth paying attention to, if for no reason other than to see if a fight breaks out. But Ralph Nader is doing that for the serious purpose of forging an “unstoppable” coalition to end Crony Capitalism, the special favors dished out by the federal government to cooperative businesses, usually of the large and politically powerful variety. It’s the subject of his latest book and a recent article in, of all places, The American Conservative.

The “Unstoppable Right/Left Convergence Event” will be held on Tuesday, May 27, at the Carnegie Institute in Washington. The speakers will address issues such as corporate welfare, international trade, the defense budget and civil liberties.

Some of these participants are already working together on issues of common concern. For instance, Lori Wallach and Judson Phillips have already collaborated in fighting the Trans-Pacific Partnership trade treaty that I refer to as “Obamatrade” because, like Obamacare, it would be a largely secret and huge law that would enable bureaucrats to crush states’ and individual rights. Lori Wallach criticizes the TPP’s impact on collective bargaining, while Judson Phillips hammers it for overriding constitutional government and our rights.

I was honored to be invited by Mr. Nader to participate, but have a conflict. I hope the May 27 conference will be the first in a series and I look forward to participating in the future. And I hope constitutional conservatives will commend Ralph Nader for engineering this conference and trying to forge a new coalition.

18 Nov

Conservatives Slam House GOP For Betrayal of States Rights

It’s a stunning betrayal of all those hardworking, pro-Constitution Americans who gave U.S. House Republicans their majority.

That’s how Rob Natelson, premier constitutional scholar and past Republican candidate, yesterday described the plan concocted by House GOP leaders to force House Republicans to vote for either a bill crushing states’ rights or to affirm a key section of the equally unconstitutional Obamacare health care law. After the House adjourned last week, Speaker Boehner and Majority Leader Cantor announced that they would push Members to vote for H.R. 5, a bill mandating sweeping a federal takeover of all medical malpractice lawsuits. That bill has been on the shelf for months, thanks to strong conservative opposition. So to make it extremely difficult for GOP Congressmen to oppose it now, Boehner and Cantor attached a very attractive Obamacare repeal bill to H.R. 5. The result is the Hobbesian choice as described succinctly by Rob Natelson: If Republicans vote “aye,” they get unconstitutional tort reform. If they vote “no,” then they’re retaining an unconstitutional part of Obamacare.

Mr. Natelson, a former law professor at the University of Montana, has made a national reputation in constitutional scholarship for identifying the early writings and letters of the Founding Fathers. He has been warning Republicans to avoid H.R. 5 for almost a year. Once again, he takes dead aim at it on the Tenth Amendment Center website:

Although promoted as “medical malpractice reform,” the measure is actually a big step toward federal control of state court systems. Essentially, it’s a lengthy set of mandates telling state and federal judges how to run their own courts whenever they deal with any health-care-related personal injury cases… This measure tells state judges and legislatures what damages they can allow, when they can allow them, how to instruct their juries, what the time period for bringing suit must be, etc. etc. One section beginning with the words “The provisions governing health care lawsuits set forth in this title preempt . . . State law” is given the Orwellian title, “State Flexibility and Protection of States’ Rights.”

Mr. Natelson’s new blast at the plan to push H.R. 5 was joined yesterday by Prof. Ilya Somin of the George Mason Law School, who criticized House leaders on the legal blog, “Volokh Conspiracy.”

“It is indeed true that I have argued that federally mandated tort reform is both constitutionally suspect and largely unnecessary, because interjurisdictional competition gives states strong incentives to reign in their tort lawsuits on their own, as many have already done. House Republicans’ support for federal tort reform calls into question the genuineness of the GOP’s commitment to respecting constitutional limits on federal power.”

Mr. Natelson also slams the hypocrisy of the House GOP leaders for basing their plan to take over state courts on the same constitutional justification as Obamacare:

“How do its sponsors justify this under the Constitution? The same way the national health care zealots justify Obamacare: The Constitution gives Congress power to regulate interstate commerce, so Congress may regulate everything that “affects” commerce, presumably including breathing. Of course, this justification is bogus. When the Constitution was being debated, its supporters emphasized that personal injury law within state boundaries would be a state concern. And although the modern Supreme Court has smudged constitutional boundaries a good deal, it has never authorized congressional micro-meddling of state judicial systems. On the contrary, the Supreme Court has ruled repeatedly that states and state courts are constitutionally free of most federal ‘commandeering.’

These two respected conservative scholars join the National Conference of State Legislators in opposing H.R. 5.

NOTE: In his post, Prof. Somin comments on my characterization of his positions in my post yesterday about Ted Frank’s and Walter Olson’s positions on H.R. 5. I certainly did not intend to refer incorrectly to Prof. Somin and have amended that post accordingly.

18 Nov

New Florida Law Enables Snooping Into Private Medical Records

Haven’t we had enough snooping into our private records by the government and its agents in the private sector? If you live in Florida, there could be more on the way.

A new Florida law invites snooping into private medical records. The law, enacted as S.B. 1792 and designated as Chapter 2013-108 of the Laws of Florida, went into effect yesterday, July 1. It enables defendants in medical malpractice cases in Florida to contact the health care providers of the victims and demand the unlimited release of personal health information, and all without the victims’ consent. So if you want to file a malpractice lawsuit in Florida and you have any embarrassing information in your medical past, you better be prepared to see it released to the public in an open courtroom.

The geniuses in the Florida legislature and Governor’s Mansion who thought this up apparently want to protect bad doctors, hospitals, clinics, and nurses from the consequences of their negligence.

One little problem for them: their special protection scheme might violate federal law.

Do the initials “HIPAA” mean anything to you? Unless you haven’t been in a doctor’s office or hospital anytime in the past decade, you’ve heard of it. It stands for the “Health Insurance Portability and Accountability Act,” and that law requires medical providers to protect patient information and use that information only for treatment, payment, and healthcare tasks. Under HIPAA, your medical providers cannot disclose your private medical records unless they’re subpoenaed, demanded through a discovery request in a civil suit, or through some other judicial order. HIPAA expressly overrides state law, unless the state law grants even more privacy protection than HIPAA.

The Florida law doesn’t provide for any judicial order and doesn’t mandate a subpoena – it just allows the lawyer for the medical provider to harass the victim’s medical provider into turning over the victim’s private records.

Five lawsuits have been filed in state and federal courts in Florida to declare that law invalid. Here’s one of the lawsuits, filed in federal court in West Palm Beach.

And remember that the Founding Fathers designed the civil justice system, in part, to protect us from a government that oversteps its boundaries, violates our rights, and gives special favors to a few at the expense of the rest of us. There’s no reason for Florida to give the defendants in medical malpractice cases a key to open the door to some of our most sensitive personal information.

If you live in Florida, call your state representative and senator and demand that they repeal S.B. 1792 NOW.

18 Nov

House Republican Leaders Mislead Members About Reagan on Tort Reform

In a briefing paper sent to House Republican staff, a House Republican leader and the chairman of the House Judiciary Committee, Rep. Lamar Smith, are misquoting Ronald Reagan on the subject of tort reform. Reagan spoke about tort reform only once in his career, and in that speech specifically referred to the states’ authority to run their own civil justice system under the Constitution. Yet that statement is excluded from the GOP leaders briefing paper to Members on H.R. 5. I wrote a lengthy post about this on January 24 of this year. Here is what Reagan said in that speech, including a sentence in which Reagan defended states’ rights over tort law:

“Earlier this year I endorsed the report of my Domestic Policy Council’s Tort Policy Working Group. This report contains a number of recommendations, recommendations that include fixed-dollar limitations for certain kinds of awards and the establishment of assurances that liability judgments go to those actually wronged or injured and not to the lining of their attorney’s pockets. Now, one of the report’s most important recommendations urged our administration to submit reform legislation to the Congress.

This legislation, carefully drafted, has now been introduced in the Congress by Senator Robert Kasten and Congressman Hamilton Fish. It restores the fault standard, which requires that actual fault or wrongdoing must be established in most cases before liability can be assessed. It limits pain-and-suffering and punitive damage awards, awards the amount contingency-fee lawyers could earn, and restricts the joint and several liability doctrine that can force a single defendant to pay all damages even if he is only partly to blame. To be sure, much tort law would remain to be reformed by the 50 States, not the Federal Government. And in our Federal system of government this is only right. Many of the Tort Policy Working Group recommendations, for example, would have to be implemented at the State level to be fully effective. This administration’s bill represents a much-needed overhaul of Federal laws governing interstate commerce –one of the fields of authority the Federal Government is specifically granted by the Constitution — and sets an example of common sense for the rest of the Nation to follow.”

THE GOP LEADERSHIP PAPER TO MEMBERS EXCLUDE REAGAN’S DEFENSE OF STATES’ RIGHTS. Moreover, the paper excludes that fact that Reagan never proposed a federal tort reform bill in any State of the Union message or any economic proposal.

Ronald Reagan was a true constitutional conservative, and tort reform was not on his radar. To misquote him on this subject is a terrible disservice to his legacy and to those of us who worked for him in his Administration.

18 Nov

Conservative Legal Experts Oppose Federal Tort Reform

It’s remarkable that Texas Governor Rick Perry would call for federal tort reform and ignore the writings of so many highly respected conservative and Tea Party-side constitutional experts. Instead, he’s sided with the pro-tort reform community in its reliance on constitutional theory that enables the federal government to trample on individual and states’ rights in health care and tort law, issues which the Founding Fathers clearly reserved for the states alone. Ironically, his “federal tort reform” would reward members of health care associations, such as the AMA, AHIP, and the health insurance industry, which were the co-conspirators in the enactment of the Affordable Care Act, a.k.a. ObamaCare, which he promises to repeal. Let’s review the legal theories in controversy here and how conservative legal experts have condemned federal tort reform this year.

At the start of the new Congress, pro-tort reform Republicans, led by a “Doctors Caucus” seeking special protection for their industry, introduced a bill, H.R. 5, a bill to impose stringent limits on the damages that victims of medical malpractice and other health care negligence can seek. The limits would apply to all lawsuits in the U.S. against doctors, hospitals, drug and device companies, nursing homes, and the insurance industry. The bill preempts all state laws that provide additional protections to patients.

Rob Natelson, formerly of the University of Montana Law School, is now Senior Fellow at the Independence Institute, a Tea Party-side legal expert and a former Republican candidate in Montana. He was the first expert from “the right side” to criticize H.R. 5, in a letter to Congress in April, and then again in an op-ed piece on May 9. Here are some excerpts from each:

H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution’s Commerce Power. Yet as I shall explain, its subject-matter–civil actions in federal and state courts–is not within the Constitution’s meaning of “Commerce.” Nor can H.R. 5 be justified under the Necessary and Proper Clause as incidental to the regulation of interstate Commerce. On the contrary, during the debates over ratification of the Constitution, leading Founders specifically represented that the subject-matter of H.R. 5 was outside federal enumerated powers and reserved to the states

Even before the Ninth and Tenth Amendments reinforced the limits, Founders, such as Madison, Hamilton, and James Wilson, among others, represented that tort law and civil justice specifically were to be state concerns. True, Congress could erect and regulate federal courts with diversity jurisdiction, but only because of separate constitutional grants, not as a result of the Commerce Power. Indeed, I have never seen any evidence that the power to erect and regulate federal courts included authority to alter prevailing tort law even in those courts, and certainly not in state courts.

To the extent that H.R. 5 regulates health care in addition to civil justice, it is also outside the Commerce Clause. No less an authority than Chief Justice John Marshall said so, in Gibbons v. Ogden, a decision celebrated as an expansive interpretation of the Commerce Power. In that case, Marshall (himself formerly a leading Ratifier) stated that “health laws of every description”–presumably including laws governing health care litigation–were reserved exclusively to the states

Up till now the state courts have been one of the few areas of life relatively untouched by federal meddling. That is as it was supposed to be: State court systems are central to state sovereignty. Moreover, the Constitution reserves most issues of civil and criminal justice to the exclusive authority of the states, rather than the federal government. When the Constitution was being considered, its supporters said explicitly that state court systems are constitutionally out-of-bounds for Congress

HR 5 is advertised as addressing abusive lawsuits against physicians, but it goes far beyond that. It would regulate in detail just about every American lawsuit that has anything to do with health care: What an injured party can allege in his or her initial filing, the damages he or she can recover, how damages are disbursed, burdens of proof, what the jury may and may not consider, which state laws survive and which don’t. HR 5 even directs state judges to conceal pertinent information from the jury. It’s not certain the Supreme Court would uphold all of this bill. But it is certainly a flagrant invasion of local control. Here’s a real irony: The Republicans supporting HR 5 justify it by parroting exactly the same ridiculous “Commerce Clause” claims the President uses to justify ObamaCare.

Partially in response to the Rob Natelson’s April letter to Congress, the pro-tort reform side trotted out a corporate lawyer to write a defense of H.R. 5. The paper relies on what has become, since the early 1940s, the standard basis cited for all encroachments by the federal government into business decisions. Quoting from the ATRA paper:

Since the 1942 case of Wickard v. Filburn, involving Congress’s power to regulate the production of homegrown wheat, the United States Supreme Court has interpreted the Commerce Clause quite broadly with respect to the regulation of economic activity… The nonpartisan Congressional Research Service (CRS) has closely analyzed judicial precedent and concluded that ‘there seems little doubt that tort reform legislation, in general, would be within Congress’s commerce power.’ Under its power to regulate interstate commerce, Congress may ‘make such legislation applicable to intrastate torts, because tort suits generally affect interstate commerce.’ With respect to the HEALTH Act, CRS has specifically recognized that ‘[m]edical malpractice liability is governed by state law, but Congress has the power, under the Commerce Clause of the United States Constitution (Art. I, ยง 8, cl. 3) to regulate it.’ Healthcare is truly national in scope and fundamental to interstate commerce… By placing an upper limit on subjective and otherwise limitless pain and suffering damages against doctors and other medical professionals, Congress can promote a more cost-effective healthcare delivery system… H.R. 5 is consistent with the Tenth Amendment, which provides that ‘[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Other conservative and Tea Party-side legal experts revolted openly against this paper and H.R. 5, and chastised House Republicans for condemning ObamaCare in one speech and pushing the expansion of fedral authority over health care and states’ rights in another.

Professor Randy Barnett of Georgetown University Law Center, the conservative legal superstar involved in the multistate lawsuit against ObamaCare in federal court, wrote in an op-ed on May 21: “But tort law — the body of rules by which persons seek damages for injuries to their person and property — has always been regulated by states, not the federal government. Tort law is at the heart of what is called the “police power” of states… Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits. Constitutional law professors have long cynically ridiculed a ‘fair-weather federalism’ that is abandoned whenever it is inconvenient to someone’s policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers ‘reserved to the states’ as affirmed by the Tenth Amendment, they will prove my colleagues right.”

Prof. Barnett was interviewed on the nationally syndicated What’s Up radio program by host Terry Lowry about how H.R. 5 violates the limitations on the powers granted to the federal government in the Constitution and Bill of Rights. You can listen to the first segment of his interview here and listen to the second segment of the interview here (MP3 audio files). Starting at 2:32 of the second segment, he said, “Congress doesn’t really have the authority to do tort reform legislation because that has historically been within the province of the states…” He proceeded to reiterate the other points of his op-ed, especially that federal tort reform legislation is an abuse of the Commerce Clause.

Prof. Ilya Somin of the George Mason University School of Law, another conservative legal expert who co-authored amicus briefs in anti-ObamaCare court cases, concurred with Prof. Barnett in a May 23 blog post. “Hopefully, at least some Republican conservatives will begin to see that you can’t advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other. Inthis post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states’ ability to regulate conduct outside their borders.” The previous post to which he referred was in February in which he wrote, “In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any ‘activity.’ Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward.”

Yet another respected conservative professor, Jonathan Adler of the Case Western Reserve School of Law, wrote a very brief comment against H.R. 5 in support of an attack from an unusual source, an pro-tort reform advocate, about which I will write in a separate post. Prof. Adler wrote that, “support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme.” Professor Adler is a frequent contributor to the events and publications of the Federalist Society, considered the premier conservative-side legal organization in the country.

Professor John Baker, a Distinguished Scholar at Catholic University Law School, Professor Emeritus at LSU Law School, and frequent presenter at Federalist Society events, wrote on the Daily Caller website on June 22 that H.R. 5 and ObamaCare are two peas from the same post-Willard Commerce Clause pod:

To justify their efforts to nationalize medical malpractice law, House Republicans are stretching the Supreme Court’s New Deal Commerce Clause jurisprudence almost as far as Democrats did for Obamacare. Both national medical malpractice reform and Obamacare are radically at odds with our constitutional structure of federalism, though Obamacare is especially radical because it represents the first time that the federal government has required people to purchase a product (health insurance).

What compels House Republican leaders to ignore the Constitution? Nationalizing medical malpractice law would not necessarily protect hometown doctors. Some states currently offer doctors better protection, without being subjected to federal bureaucrats. Other states would do so if doctors worked their own state legislatures, rather than relying on a Washington lobby, the American Medical Association.

The explanation for the eagerness of House Republican leaders to nationalize even more of the economy is a simple reality: both Congressional Democrats and Congressional Republicans like the New Deal interpretation of the Commerce Clause, which allows them to expand national power. They would just do so for different purposes.

Prof. Baker went further, warning Republicans like Rick Perry that enacting a federal tort reform bill like H.R. 5 could boost the chances that the Supreme Court would rule favorably on the Affordable Care Act. “Seeing that Republicans are as willing as Democrats to nationalize different parts of healthcare, the justices might conclude that there is a Congressional consensus to nationalize all of healthcare. Since justices tend to defer to Congress, that might be enough to tip the scales in Obamacare’s favor.”

Is that really what Rick Perry wants? To boost the chances of victory for ObamaCare?

Rob Natelson returned to the subjects of federal tort reform and the Commerce Clause on July 18 in the course of a discussion on Chief Justice John Marshall and his signature case, Gibbons v. Ogden, on the Tenth Amendment Center website:

Gibbons v. Odgen is often appealed to, as Justice Jackson did, for a very broad reading of the ‘commerce’ component of the Necessary and Proper Clause. Under this reading, the Necessary and Proper Clause allows Congress to regulate any economic activity “substantially affecting” interstate commerce: agriculture, mining, manufacturing, heath care, insurance, medical marijuana–in fact, the entire economy.

However, Gibbons did not even mention the Necessary and Proper Clause. The primary holding of Gibbons was that navigation was within the prevailing legal definition of ‘commerce’ for constitutional purposes–a decision that, under the original understanding of the Constitution, was clearly correct. Some of the Court’s dicta (extraneous language) added that in some circumstances commerce (including navigation) within state boundaries might be so tied up with interstate commerce that Congress could regulate it as well. But when Marshall addressed other aspects of the economy, it was to say that they were outside of Congress’s power. He specifically mentioned ‘health laws of every description’ as being reserved exclusively to the states.

So those who use Gibbons to argue for the constitutionality of federal control of manufacturing, agriculture, land use, or health care are twisting some of Marshall’s words and omitting others.

In other words, the pro-ObamaCare forces and the pro-tort reform causes make the same error for the same reasons. In both cases, the result of victory in each case would be the exercise of excessive federal power, to the detriment of individual rights and the rights of individual states to regulate and manage the daily activities of the citizenry.

That makes FIVE conservative legal experts, bright shining stars in the conservative legal universe, standing against the concept of federal tort reform. Two other legal experts wrote about the unconstitutionality of H.R. 5, but they deserve special discussion in another post, because they’re pro-tort reform advocates who recognized the unconstitutionality of H.R. 5.

18 Nov

Obamas Vision Could Hurt Civil Justice in America

It wasn’t difficult to see liberals standing on the Mall in Washington, bundled in warm clothing and loudly cheering President Obama’s Inaugural Address, with the promise of larger and more activist central government deployed to implement a “progressive” agenda. But I saw another group smiling softly deep in the background. It was the Crony Capitalists, watching from warm, comfortable Fortune 100 boardrooms across America and on Wall Street, and their K Street lobbyists in DC, all nodding their heads at the opportunity to transform that vision into new laws and regulations that would benefit their own interests. That’s the way it works in Washington, and the rest of us are the cream in the Oreo cookie, stuck in the middle and crushed by both sides.

Liberals, especially those dedicated to the cause of civil justice, should be careful what they wish for in the next four years. An Uncle Sam unleashed from the limits on centralized power designed into the Constitution and Bill of Rights could hinder or even crush the individual right to have civil suits heard before a local jury and the right of state governments to enforce local laws benefitting the consumer. In the hands of Big Government Liberals and Crony Capitalists working behind closed doors in smoke-filled rooms, phrases of Obama’s speech such as “collective action” and “common effort” could result in budget “compromises” and “Grand Bargains” that leave us with ugly surprises, such as federal caps on damages in medical malpractice lawsuits filed in state and county courts; preemption of state consumer protection laws; and limits on the authority of state Attorneys General. Is that what liberals signed up for when they cheered President Obama?

Civil justice activists of all stripes should heed and cite the majority decision by the Supreme Court in the Obamacare ruling. Thankfully, the Court expressed the need for the Executive Branch and Congress to recognize and follow constitutional limits on their authority under the Commerce Clause and the Necessary and Proper Clause. Constitutional experts whose theories were adopted by the majority, such as Randy Barnett and Rob Natelson, have already made it clear that the Roberts decision imposed new limits on the unbridled ambition to override state governments and individual rights. Randy Barnett promises to lead any legal challenge to an enacted federal cap on medmal damages, and both experts predict such a law would be struck down by the current Court. As long as that opinion isn’t overruled through the appointment of justices who believe in an unlimited Commerce Clause, as promoted in Justice Ginsberg’s minority opinion, the Founding Fathers’ vision of a civil justice system dominated by local juries, and not bureaucrats in Washington, will remain alive.

Ironic, isn’t it? Civil justice advocates on the left need libertarians and constitutional conservative thinkers such as Randy Barnett and Rob Natelson; conservative Republicans such as Ted Poe, Louis Gohmert, Tom Coburn, Mike Lee and Ken Cuccinelli; and wise Tea Party activists such as Judson Phillips, to keep the promise of equality under law. Let’s hope civil justice liberals realize it.

18 Nov

Influential Catholic Christian Groups Support Obamacare Lawsuits

Last week, scores of influential Catholic and Christian groups publicly backed the principles underlying the lawsuits filed on May 21 by Catholic dioceses and groups against the Obamacare drug and device mandates. The announcements should add considerable pressure on the Obama White House to rescind or amend HHS regulations ordering faith-based groups to engage in health care activities totally contrary to the congregations’ religious doctrines.

On June 11, over 150 faith-based organizations joined in a letter to HHS Secretary Sebelius, expressing “grave concern” over the impact that the Obamacare mandate will have on religious freedom. The Institutional Religious Freedom Alliance, a Washington, D.C.-based coalition, organized the letter. It was signed by aid organizations, including World Relief and the U.S. branches of the Salvation Army and World Vision, Inc, as well as by the National Association of Evangelicals; the National Hispanic Christian Leadership Conference; the Baptist Bible College & Seminary; and the North American Baptist Conference. Legal organizations involved in lawsuits against the Obamacare mandate, such as Liberty Counsel and the American Center for Law and Justice, also signed the letter. They wrote:

As leaders and supporters of faith-based service organizations, we write to express our grave concern about the two-class concept of religious organizations that has been created by your department and other federal agencies in connection with the contraceptives mandate of the health insurance regulations for preventive services for women.

But we are united in opposition to the creation in federal law of two classes of religious organizations: churches–considered sufficiently focused inwardly to merit an exemption and thus full protection from the mandate; and faith-based service organizations–outwardly oriented and given a lesser degree of protection. It is this two-class system that the administration has embedded in federal law via the February 15, 2012, publication of the final rules providing for an exemption from the mandate for a narrowly defined set of “religious employers” and the related administration publications and statements about a different “accommodation” for non-exempt religious organizations.

On June 14, the Catholic Heath Association, the largest groups of Catholic-based hospitals in the U.S., delivered a crushing blow to any hopes that the Obamacare mandates would find any approval among leading Catholic-based organizations. The Catholic Health Association, the largest group of Catholic-affiliated hospitals and nursing homes in the country, issued a letter opposing the HHS mandate. The CHA’s opposition is especially damaging to the future of Obamacare because (a) it represents 600 hospitals and hundreds of nursing homes (one of every six patients in the U.S. is cared for in a Catholic hospital); and (b) it supported the enactment of Obamacare and was a key player in votes for the law by Catholic Democrats in the U.S. House.

CHA President, Sister Carol Keehan, wrote in the letter that, “we continue to believe that it is imperative for the Administration to abandon the narrow definition of “religious employer” and instead use an expanded definition to exempt from the contraceptive mandate not only churches, but also Catholic hospitals, health care organizations and other ministries of the Church.”

In other words, the Obamacare mandate would force CHA-member institutions to either turn away non-Catholic patients or close. That’s what numerous Catholic social services organizations have said – hospitals, nursing homes, AIDS clinics, and local clinics for the poor could all close.

These letters are precursors to the next stage of lawsuits against Obamacare by faith-based social service organizations, unless the White House amends or rescinds the current version of the mandate or the Supreme Court throws out the entire law.

The 43 Catholic dioceses, organizations and universities that sued the Obama administration on May 21 invoked their 7th Amendment rights and demanded that local juries hear the suits, not judges. It would be better if push doesn’t come to shove, but if it does, the nation will see why the Founding Fathers were unanimous in including this “sacred” and “inviolable” right in the Bill of Rights.

18 Nov

Paul Ryan Embraces Crony Politics Ditches Constitution in Budget

On Sunday, Rep. Paul Ryan promised, “No more crony politics” in his budget during TV interview. That promise lasted two days. Today, he released his budget, which would reward the pro-Obamacare (and pro-abortion) AMA and associated medical groups by capping what victims of healthcare malpractice can collect in lawsuits filed in state courts. Here’s the text on page 40 of Rep. Ryan’s draft budget for FY 2014:

“• Reform the medical liability system.
This budget also advances common-sense curbs on abusive and frivolous lawsuits. Medical lawsuits and excessive verdicts increase health-care costs and result in reduced access to care. When mistakes happen, patients have a right to fair representation and fair compensation. But the current tort litigation system too often serves the interests of lawyers while driving up costs. The budget supports several changes to laws governing medical liability, including limits on noneconomic and punitive damages.”

The plan ignores the opinions of the most respected Republican-side and libertarian legal experts who have repeatedly written that Congress has no authority to enact federal caps on medical malpractice lawsuits, especially under the majority opinion in the Supreme Court’s Obamacare opinion. Such a measure crushes states’ and individual rights and is an invalid exercise of the Commerce Clause.

The panoply of experts include Prof. Randy Barnett; Virginia AG Ken Cuccinelli; legal experts Rob Natelson, John Baker and Carrie Severino; and Reps. Ted Poe, Louie Gohmert and Lee Terry, and Senators Tom Coburn and Mike Lee. The National Conference of State Legislators has always protested federal caps as a violation of the states’ right to operate their civil justice systems without federal interference. Tea party leaders such as Judson Phillips and the Tea Party Patriots criticized the passage of caps by the Republican House in the last session of Congress.

And federal caps on medmal damages are not supported by leading Republican-side healthcare experts. Avik Roy, Jim Capretta and Tom Miller don’t include it in any of their recent proposals. They know federal caps on medmal lawsuits do nothing to help improve the quality of medical care.

The Ryan budget is nothing more than a sop to doctors, insurance companies, drug and device companies, and nursing homes, ALL of whom supported the enactment of Obamacare and approval by the Supreme Court. The lust for campaign dollars ignores the Constitution and realities in the healthcare marketplace.

Republicans should reject Ryan’s Crony Politics and vote with the Founding Fathers.

18 Nov

Dont Protect Gosnell Through Federal MedMal Limits

On November 20, 2009, 41-year-old Karnamaya Mongar made the wrong choice, a horrible decision that ended two lives that day. She chose to have an abortion at the clinic run by Dr. Kermit Gosnell in Philadelphia. Not only did Gosnell kill Mongar’s unborn baby, but he butchered her so she experienced severe pain, then shot her up with so many pain-killers that she died on the spot. The city of Philadelphia finally realized what Gosnell and his untrained, unlicensed staff have been doing in his “house of horrors” and indicted them for allegedly murdering multiple women and live babies. Mongar’s family hired a top-notch Philadelphia law firm and has filed a civil suit against Gosnell for medical malpractice.

But medical malpractice suits brought by families of other Gosnell victims could be severely limited in impact, and Gosnell allowed to keep much of his “blood money,” if federal limits are imposed for the first time on medical malpractice suits. The bill designated H.R. 5 will be debated and voted upon next week in the House Judiciary Committee. It would sharply limit non-economic and punitive damages, so Gosnell wouldn’t feel the sting of a jury verdict on his assets. And the bill would mandate that a jury sit there and listen to Gosnell as he tries to spread the blame for the deaths to his patients.

Ms. Mongar and the other women butchered in that clinic made the wrong decision, but that doesn’t justify murder. My view as a pro-life Christian is that Gosnell and his staff deprived the dead women of the opportunity to reclaim their lives and repent for the sin of the abortion – they took that away from their patients. The babies Gosnell killed, born and unborn, cannot take his blood money away. Only the families of the women who were mutilated by Gosnell can ensure he is punished financially so he can’t just access his assets someday and start over. Congress shouldn’t protect Gosnell from justice, delivered by a local jury in a court of law.

18 Nov

On the List St Patricks Day

I’m sort of ambivalent about my ambivalence toward St. Patrick’s Day. On the one hand, it’s obviously fucking stupid. On the other, it’s really fucking stupid, so it’s kind of hard to strike the right balance of feigned superiority that I’m known by literally tens of people for. But anything that brings together the holy trinity of List ridiculousness: Religion, Nationalism and Getting Wasted, Dude! altogether in one spectacular shit show is ripe for scorn. When you add in other reliable List-worthy staples like Boston, the Irish, Irish-Americans, parades, having fun, doing stuff, and being sociable with other people, well, it deserves a special rung of its own in List hell. The only way it could be worse is if it was a day where everyone pretended really hard right in your face to be Italian.


I think we can all agree that no matter how bad St. Patrick’s Day is, at least we dodged a bullet on that one.

The reason it doesn’t bother me too much though is because, as a reasonable person, I don’t even really know that it exists. I don’t go to Southie to watch the parade. I don’t go to watch any parade for that matter. I’d rather see a column of stormtroopers marching down the street to my front door with burning torches and laser shields than be subjected to that particular drunken brand of artistry that comprises everything contemptible about ethnic pride and displays of military prowess. (Marching bands are kind of cool though, just saying.)

And unlike every other night of the year I will make the reasonable decision to avoid bars tonight. Why? Because I am not a fucking moron. Also I don’t like standing in lines, being around ridiculous people, or taking part in forced displays of camaraderie. I don’t like watching people puke, get in fights and singing old timey Irish folk songs either. If I wanted to take part in any of that shit I wouldn’t have quit going to AA meetings with your sister.

So, I don’t know. Go celebrate it if you want. It’s your stupid life. But do me a favor, every couple hours or so, in between spilling sips of green water-colored beer piss on your green Cosby sweater, think about this: St. Patrick wasn’t even Irish. Dude was born in Roman Briton. Also there were never any snakes in Ireland. Also taxes are due in a couple weeks and we’re all going to die some day, most likely in pain and alone.

Anyway, have fun having fun. See you tomorrow for the post-game wrap up. I wanna hear all about it.

18 Nov

Jesus Wrote the Declaration of Independence

Making fun of conservative art is kind of like shooting retarded fish in a retarded barrel, but I don’t think I’ve ever seen anything that so comprehensively captures the experience of being completely clueless about everything that has ever happened ever. I am literally in awe of this painting’s majesty, and no I’m not talking about the hippie cosplay dude ignoring that kid in the middle. 

So, obviously, Jesus wrote the rules of America and Abe Lincoln and an astronaut and Kevin Spacey were all there. Everyone agrees on that. What you may not have known, if you look a little closer here on the bottom right, is that pregnant sluts, jew lawyers, the liberal media, pointy headed professors with their fancy science-y books and, what, Jeff Bridges in a blazer I guess, are all bros with Satan. 

This shit is a little internet old, but true art is timeless, right? Here’s where my man explains the whole thing, complete with captions for each figure, like the Civil War soldier with his hands over his face. Why? “Because that was the only war in American history where American fought against American and brother fought against brother. Hopefully it will never happen again.” Unless the liberals try to steal our machine guns he probably meant to add. So, go check it out. Meet you back here in ten years when you recover.

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18 Nov

Doubling Up at Dunkin Donuts

Dunkin Donuts is a veritable treasure trove for a “list” blogger. We’ve already covered the people getting milkshakes and pretending they’re coffees and we’ve probably already covered the idea of eating donuts(if we haven’t, we should.)

Anyway, I go to the Dunky D’s the other day for an iced coffee and a bagel on the way to work (on a Saturday — speaking of the list), when two events take place that make me Jesus to turn my hands into hammers so I can smash everything in sight.

First: two dudes discussing this Obammer v. the Cambridge Police thing. Dude A says the Big O was wrong to douche on the cops. Fair enough. Sensing another possible racist in his presence, Dude B puts it on the line: “the only thing I’ve seen since he got elected is more taxes and more blacks.” Aside from that dickhead’s taxes actually going down, what does that second bit even mean? Whatever. I was in Dunky’s, and this is the price you pay for bro-ing down with the common man, is it not?

Second: a dude strolls in in his saturday best(jean shorts and a tank-top) orders an iced coffee and asks for a styrofoam cup to put the plastic cup in. Thanks, bro. Think you can just dump your garbage in front of the store and idle your enormous truck for a few minutes? Maybe club a baby seal on the way out the door in case you haven’t destroyed the Earth enough for the day? Wouldn’t want your precious hand to get wet from that ice sweat though. Hey did you know back when I was a kid, they didn’t even have cupholders that would hold drinks that big? Yeah, weird one, right?

There you have it. There’s your average hockey mom or Joe the Plumber just gettin’ ‘er done for the American Dream at a Dunky’s near you. Should’ve stuck to Starbucks, which despite what you’re thinking, is NOT on the list.

18 Nov


I’m not a barber, I’m a hairdresser or “stylist” or whatever faggy-sounding thing you want to call it. I have a cosmetology license, and part of my beauty school training was in doing mani/pedis, applying makeup, doing up-dos and perms, all that masculine stuff.

My dad still has issues with calling me a hairdresser when people ask him what his son does. I think a typical exchange with him is something like: “My son cuts hair.” “Oh, he’s a barber?” “No, he’s a hairdresser, but he’s not gay.” Cutting hair in general seems to be a big Italian thing though for some reason, like Koreans do nails and Eastern Europeans do waxing, not sure why that is. My motivation for becoming a hair-person was that I graduated from an unremarkable state college with an unremarkable GPA in my English degree right around the time the dot com bubble burst, followed by 9/11, and trying to live off freelance writing jobs and entry-level publishing grunt-work kind of sucked, as did the administrative office job I ended up doing for three years while trying to figure out what to do with myself.

18 Nov

All I Need To Know About Ministry I Learned From Fly Fishing

All I Need To Know About Ministry I Learned From Fly Fishing
95 pages
Judson Press (www.judsonpress.com)
ISBN: 0-8170-1396-2

By Myrlene L. J.Hamilton

I have read that one sign of insanity is when you do the same thing over and over again while expecting different results. I don’t know about you, but to me that sounds like the perfect description of fishing.

On an evening in late May, my husband, Ed, and I were fly fishing on the West Branch of the Delaware River in New York. Along with several diehards, we were flailing the water repeatedly, with no results. We kept doing it anyway. Late in the evening, an older gentleman came along with his fly rod and just sat down on the bank, watching the river. I wondered why he wasn’t flailing the water along with the rest of us. Bored with my own lack of action, I went over to speak to him. He told me about the big one he had caught the night before, right in that same spot. Then he pointed to the river. He said, “See that big rock out there? There’s a big trout lying right beside it. And there’s another one over there and another one over there. When it’s just about dark, I’ll have about a ten-minute window when they start to rise.”

Meekly I asked him, “And when they start to rise, what will they be taking?”

“Rusty spinners,” he said.

I went back to my fishing, but kept the old man within eyesight. For luck, I tied on a rusty spinner and resumed my flailing. A few minutes later, I saw a splash in the vicinity of one of his big fish. He was talking with someone else at the moment, so I kindly pointed out to him that maybe it was time to start fishing.

He took his rod, stepped out in the river, and cast a couple of times. Then he came back in and said, “No point killing myself before it’s time.” And he sat back down. I went upriver, keeping him in view. The sun went down, and the sky darkened. Finally, the old man unfolded himself, stretched and stepped into the river. He made one cast, and a fish rose, grabbed that rusty spinner, and snapped off the leader. I don’t know what the old man did then because I, along with the other flailers, reeled in and went back to the cabin.

In fishing, it seems that there is always someone who knows the magic–the magic spot, the magic fly, the magic time of day. And it’s always someone else.

In ministry, there are often similar frustrations. We keep doing what we do (sometimes ad nauseum) with marginal success, while our colleague down the street, or in the next town, reels in the big ones with seemingly little or no effort. Our neighbor’s creel is full, while ours remains pitifully empty.

But magic has little if anything to do with catching fish, or with being successful in ministry. In fly fishing, you have to learn the ways of the river and the ways the fish interact with their environment, especially the insects. You need to spend time, not just in books, but out on the river, watching, learning, flailing. In time, what seems like magic becomes almost second nature. In ministry, too, it’s not just book learning but education on the river that yields maturity and success. One whose calling is to fish for people must find the answers to some pertinent questions. What are people hungry for? What are their great desires? Where do they spend their time? How do they respond to various kinds of “bait”? More than that, the one who is called to fish for people must spend time out on the river with the One who created the fish and the bugs and the river itself.

Fishing or Not

Let’s begin at the beginning. If the fisher of persons wants to find success in ministry, the first question to ask is, “Am I fishing or not?” Because we are preaching every week, visiting people in the hospital, and teaching Bible studies, we tend to think we are fishing. But we may just be dangling our toes in the water and getting a tan. Ed and I choose our fishing spots not just for the quality of the fishing but also for the quality of the environment. If we find a place we like, we tend to go back again and again. It becomes like a mini-home away from home where we go to get away from it all. On the first evening, we unpack and unwind. We may not get our fishing gear out until the next day. Sometimes we will go through a whole week without fishing very hard. We just like being there–being quiet, watching the river go by, letting down. And that’s okay, until someone asks us how the fishing is going. “Oh, it’s a little slow,” we might say vaguely. Truth is, it’s not going at all. We’re just coasting. Oh, we’ll get around to fishing, once we’re done with our loafing.

That’s okay for vacationers, but such coasting should not be confused with fishing.

What’s true for many ministers (both clergy and laity) is that we’re vacationing instead of fishing. We are very busy doing many things, and we are enjoying each other, enjoying the river going by. At the same time, our community is growing, the population burgeoning. The schools are overcrowded. “Why aren’t some of those people coming to our church?” we ask. Well, it just could be that we aren’t fishing. We’re just sitting on the porch, sipping sarsaparilla with our friends, having a great time.

When Jesus said to Peter, “From now on you will be catching people,” he wasn’t joking. That’s our job.

I don’t say that to spark guilt in those who live in declining communities or rural areas, where there are few unchurched people to reach. Not every church is meant to be a megachurch. But churches are meant to grow, both in spiritual maturity and in numbers. Something should be happening out there.

Fishing or Catching

There are lots of styles of fishing. You can fish with a bobber and a worm on the end of a long string; you can walk along a stream with a fly rod; you can troll your spinner behind a boat; out in the ocean you can let your line go way down deep with heavy weights and bait; you can use a dip net or a spear. You can fish with worms, or squid, or spinners, or flies.

While there is an endless array of fishing styles, there are only two types of fishing. One is where you go fishing and don’t catch anything. The other is fishing and catching.

Fishing and not catching is something I know a lot about. In fact, this kind of fishing is very popular with many people. And it’s easy to master. You don’t have to bother learning a whole lot about the environment or the equipment or the fish. Just go fishing and see what happens. Good luck.

In some ways, this is the best kind of fishing because you can have a nice day outdoors, and when you come in, there are no stinking, slimy fish to clean. At the heart, it’s a whole lot like not fishing–though you are out there making a good show of it. There are hazards, though. Just when you think you are going to make it through the day and not catch anything, there’s a tug on the line. Then what do you do?

A lot of churches are like that. They’re out there fishing, all right, but not much is happening, and when they do get a strike, they don’t know what to do. And more often than not they spook the fish. A church that we served a few years ago said that they wanted to get more young families in the church, and that was one thing that drew us there to serve as their pastors. The problem was that whenever a young family would come, they would get “the stare.” Sometimes, if they had a restless young child, they would even get “the boot.” “The cry room is upstairs,” one couple was told rather gruffly by an older member of the church. The young couple never came back.

Catch and Release

For those who are committed to fishing and catching, there is one more critical decision: catch and kill or catch and release?

Catching and killing is no doubt the more popular of the two because most of us want to bring home a trophy–and lots of us like to eat fish. If we were to translate this into our church work, we may think that we are gathering up all those fish for our own benefit, our own use. We want to catch more people because we need more money in the offering plate, or we need more teachers, or more whatever. I suspect that we have all seen churches that are really good at the catch-and-kill kind of fishing. They reel everybody in, sit them down, and then squeeze all the enthusiasm and creativity and life out of them–or else bore them to death. Someone once said that the only real heresy is to make the gospel boring. Amen to that! God is anything but boring.

Sometimes when we hear about fishing for people, we are afraid it’s the catch-and-kill type. I think this is one reason why evangelism is something that people tend to avoid. It has a predatory feel to it. But this is not the kind of fishing that Jesus invites us to participate in.

The kind of fishing that Jesus wants to teach us is catch and release. I started to learn about catch and release at about the same time I was learning fly fishing. A favorite fishing stream in Oregon, the Metolius, has beautiful native rainbow trout cohabitating with hatchery-raised planters. If you catch one of the natives, you are required by law to respect that fish’s right to life and let it go back into the stream. (Hatchery-raised fish have the adipose fin clipped off.) To make it easier on the fish, you have to use flies only and barbless hooks.

When Jesus spoke to Simon about catching people (Luke 5:10), the word translated as “catching” literally means to take them alive. Catch and release. Reel them in for Jesus Christ and the kingdom of God, and then set them loose to become what God has called them to become. In our church’s vision statement, we say that we want to help people “meet Jesus Christ and grow spiritually.” That’s the fishing and catching part. Then we say that we want to “enable each person to discover and enter into the unique ministry God has given him or her.” That’s the release part. Each person is unique and is valued by God. Each person has a special calling from God. We don’t want to force people into molds because when we do that, we just get (excuse the old joke) moldy Christians.

This kind of fishing is risky business because people may not become what we want them to become, and we may not fill all the “slots” on our nominating slate. These folks may even create new ministries that we had never even dreamed of. God forbid, they may even take what they learn from us and go and join a different church!

Even so, I have come to believe that the chief end of fishing is catch and release. Our “fish” may not turn out the way we thought, but they’ll become what God wants them to be, and so will we.

Excerpted From All I Need to Know About Ministry I Learned from Fly Fishing by Myrlene L. J. Hamilton. ©2001 by Judson Press, Valley Forge, Pa. Reprinted with permission. To order call (800) 458-3766 or visit www.judsonpress.com.  ($12.00)

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18 Nov

Architectural Outlook 2007

by RaeAnn Slaybaugh

Architectural Outlook: 2007
Construction and Design Experts Discuss This Year’s 7 Biggest Trends for Churches

by RaeAnn Slaybaugh

Youth Facilities Still Top the Trends List

Bill Chegwidden: First, you have to take care of the youth. When you’re in middle school, you want an activity to do when you come to church. You want to throw a basketball or something. And when you’re a high school student, you want somebody to sit down and talk to. It’s about a relationship. You want a place to hang out. I think we’re beginning to understand how to design for those ages.

Doug Akers: Families have their kids in great preschools during the week. When they bring them to church, they expect no less than that — uniforms on the workers, pagers and so on. A lot of churches we deal with give out PDA’s with Wi-Fi cards in them! Parents can literally see their children through a camera in the room they’re in.

We’re seeing a lot of children’s theaters, whether it’s for children’s worship or for mid-week events. Sometimes Awana circles are built right into the carpet. These are spaces for innovative children’s worship.

Mark Hilles: There’s a sustained movement in youth and children’s facilities. Most of the pastors we talk to see these as vehicles to get families in their churches. They feel if they don’t have that, they’ll be bare.

David Evans: There’s recognition among churches that they have to have state-of-the-art, high-quality children’s spaces. They have to say to parents, ‘We care about your kids.’ A lot of kids are bringing their parents to church, so those spaces are big.

Multifunction, Multipurpose, Multi- Venue, Multi-Site

Derik Salser: Until you’re ready to build a big worship center, a multipurpose space is a great idea. When the time comes, a lot of old multipurpose buildings are turned into the youth centers. When the church builds its big, 2,000-seat sanctuary, the youth are going to take that old building, and they’re going to love it. They’ll put their bands up there on stage!

Akers: We’re seeing more and more moveable wall panel systems installed. So, a space may be an education building on Sunday morning, but on Wednesday, Thursday and Friday, it can be set up for an aerobics class or a fellowship supper.

More and more churches are doing multifunction worship spaces. Not necessarily recreation, not so much a gym — but multifunction so they can do worship services in there. They’ll set up interlocking chairs and tables and do a seminar, or they can set it up for a banquet. If there’s a smaller fellowship hall close by and a commercial kitchen, they can use that space in multiple ways.

Viviana Varnado: The answer might not always be, ‘Let’s build a new church.’ In some cases, an evaluation and space assessment may reveal a different solution. We have encountered cases where we went into a facility which had 2,000 square feet of space that they were not using. An evaluation of your existing space based on your ministry needs is very important since it will clearly indicate deficiencies and opportunities. See what you have today, and work from there.

Erwin: The satellite church revolution will become a viable option. [Pastor] Ed Young’s comments are right on the money: You don’t have to spend a lot of money on these venues, but you have to do things well. That means no handwritten signs, fresh paint, making sure things are clean.

Doug Spuler: To meet the needs of different worship styles, churches are looking at implementing and using video venues. Multiple auditoriums with 1,000 to 2,000 seats will allow a church to offer more diversity in worship while delivering the same message to each venue.

Stephen Ferrandi: Architecturally, we have a couple of church clients that don’t want to look like churches at all. One is building a 2,000-seat sanctuary, and they’ve told me from day one they want it to look like a banquet hall. They’re coming out of a warehouse that looks like a warehouse, so maybe it’s just part of their process.

Erwin: With the pressure that prices are putting on churches, I believe we’ll see more functional buildings built, which means a lot more rectangular or square buildings. Churches can put more space for less money in a rectangular building. I think you’ll see multi-use facility — with flat floors and moveable furniture — become increasingly popular, certainly for first phases.

Evans: I think the worship auditorium environment is becoming a little smaller and a little more intimate. We’re sometimes seeing three or four small auditoriums on the same campus instead of one large one.

Churches Must Act Like Good Neighbors

Ferrandi: It used to be that if you wanted to build a church — not a megachurch, just a church — people didn’t fight you. And now, if you want to build a church of any size, you can expect it. I tell my clients to budget three years from the day they put down a contract to the day they break ground — to get through the entitlement process and a couple of public hearings. That gives them time to raise the money, hire the contractor, etc., ahead of time.

Akers: When working with churches in areas where there’s been a lot of construction, there are lots of nice new homes. Well, you can’t go in and put up a pre-engineered building because people just walked out of those beautiful homes! They’ll want a building that fits in.

Remodeling, Renovation On the Rise

Brad Eisenmann: Whereas before the mindset was, ‘We have this church that can’t be expanded because we’re in a neighborhood, so we’re going to move out to the freeway and build a new church,’ now — with the multi-site movement gaining ground — people are saying, ‘Lets’ stay here!’ Rather than selling the church and building a bigger one, churches are deciding to keep it, remodel it, renovate it, and then plant a second, third or fourth site.

Greg Snider: I’m noticing a huge awareness that facilities matter. There are churches in communities of half-million-dollar homes, but the church itself hasn’t been touched in 20 years. So, existing churches that aren’t growing are changing so they can grow. They’re making their facilities more relevant. Now more than ever, a lot of facilities are irrelevant in today’s culture. People are walking in and walking out.

Traditional Design Elements Make a Comeback

Hilles: I think there’s a collision of thought about contemporary, non-discrete, commercial-looking, seeker-sensitive churches. I wouldn’t say there’s a lot of traditional pursuit of steeples and those kinds of traditional elements, but I do think churches are looking for an identifying point of interest or feature that gives people a reference point about what they’re doing — almost like a corporate branding.

Varnado: Newer generations are seeking more of an intimate environment — less the stadium kind of feel — when they’re at church. They want personal relationships, they want to get to know people. There are ways to do that it in a stadium-type venue, but some people are looking for something a little more intimate and not as large.

Chegwidden: More and more churches want some elements that have traditional flavor to them. A lot feel like they’ve gone too far and given up too much of that. And the people coming back want something they remember from their childhood — the ancient and the modern. We’re trying to find a new balance.

Higher Land and Construction Costs

Ferrandi: The land cost dictates what a church can realistically build, so some churches are building sanctuaries that can hold 500 people on day one, but they have knock-out walls so they can be expanded later.

Akers: We have to be competitive with what people are seeing in their everyday lives, and that means our facilities must be competitive. That’s pushing up the cost of construction. We’re looking at about $20 more per square foot to build this year than in 2006. With technology thrown in there, it might even be 20% to 25% more.

Barron: There’s a healthy tension in the market right now because prices have gone up 25% over the last two years. You’re not buying the same amount you did two years ago. Fortunately, a lot of the giving patterns have increased along with the cost increase.

Building Community with Design

Varnado: One of the biggest design trends we’re seeing today is the sense of community people are integrating into their churches — foyers, large gathering spaces, coffee shops, cafes. Creating spaces that welcome visitors, the unchurched and members, making them feel comfortable, is a trend that we are seeing develop across denominations, for high church to very casual church groups. It is here to stay.

Snider: I’m seeing a major breakdown of the ‘institution’ — a lot fewer classrooms and four walls created for one specific ministry. It’s about creating a community area now, where we can spontaneously break into a small group in an area of the church that isn’t necessarily a classroom.

Eisenmann: A lot of churches are thinking outside their buildings. A great example of this is a church we built in a retail area and designed not to look like a church, but fit into the retail context. People come in to ask if it’s the library. When they find out it’s not, they’ll still sit down, get a cup of coffee, visit the bookstore, and interact with the personnel anyway. They connect. The ‘third place’ concept thing is becoming much more of a topic. The first place is your home, the second place is your work, and the third place is where everybody knows your name.

Evans: Connection spaces are a big trend — it’s the ‘third place’ concept of how we can connect with people, spawned from secular society. People can literally come to the church and hang out there all day. Connectivity is still really big and important, and I don’t see that changing.

18 Nov

A Need-to-Know Guide Pirates in Our Midst

by Ken Godevenos

Would you allow your staff members to attack each other, taking one another’s belongings without permission? Many would respond, “No way! That’s piracy!” — and they would be right. But in the late 20th century, the word “piracy” began to be associated with the simple “unauthorized use or reproduction of another’s work or product without their awareness and permission.” One common form of piracy is associated with the inappropriate use of software.

Also getting a lot of press these days is the related concept of “plagiarism,” which takes piracy one step beyond stealing to actually passing off the work (most often words penned by another person) as one’s own. In our preaching, most of us are quick to say, “I didn’t say that, Jesus said it,” or “the Bible says it – don’t blame me.” (This was a hot-button issue in one of my blog posts, “Whose Sermon Is It Anyway?”) But we are not as quick or as careful to give credit to others when we use their examples or arguments or make points they originally made.

A third area of concern today is violation of copyright. Most dictionaries define “copyright” as “the exclusive legal right, given to an originator or assignee (e.g. an author’s estate or agent or family) to print, publish, perform, film or record literary, artistic or musical material, and to authorize others to do the same.”

So, do we have any pirates in our midst? Before we continue, it must be stated that this is a very complex area – there are no black and whites, and as we’ll see later, there are some exceptions, especially for nonprofit organizations. The law itself is not as clear as some of us would like it to be. Ultimately, it becomes a matter of ethical behavior and how we ourselves would like to be treated. Here are just some ways church staff may be acting like pirates, plagiarists and copyright violators:

•Plagiarism in our sermons, talks, presentations .Remember – you can use the work of others, provided you give them credit.

•The use of music or songs without paying royalties. Every church should be licensed through Christian Copyright Licensing International, which streamlines copyright issues surrounding congregational worship services.

•The use of lended technology, usually software, which has been purchased by an individual or a company other than the church for one’s own personal or business use.

•The unauthorized photocopying of pages from purchased books for sharing with the staff or those we are working with. People have been known to copy entire chapters of books each week for the members of various classes that they teach because the church does not supply – or members cannot afford or will not buy – the books for themselves. In some cases, entire books have been copied.

•The use of movie clips taken from our own purchased copies of movies for personal use or downloaded from the Internet. Worse still is the use of an entire movie in one of our programs (e.g. youth) that has been copied illegally or downloaded from the Internet …


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18 Nov

An Excellent ExampleWillow Creek Community Church is a Model of Multi-Site Expansion

Doug Turner

Every church leader wants to avoid problems — except the problems of church growth and expansion.

Pastors and church leaders are fortunate when trying to decide how to accommodate a healthy, expanding congregation. In the ‘90s, as a result of a church building boom, the overwhelming choice was to expand facilities to catalyze and accommodate the growth in numbers. Relocating or expanding the facility — attractive when land is available and the existing structure can be easily transformed — is still a wise investment for the local church. Today, however, churches face a greater complexity of ministry challenges than ever before. In short, the “build it and they will come” mantra is no panacea for obstacles to growth.

An emergent option church leaders are considering is choosing to be a multi-site church — one faith body (one staff, one board, one budget) worshipping in at least two separate locations. During recent years, the success of several high-profile churches – especially Chicago’s Willow Creek Community Church — has caused a great deal of interest in the concept.

Lessons Learned

Leaders at Willow Creek Community Church engaged in a capital campaign to resource their Chapter Two vision, which was taken from Acts 2 as a model for the church and to communicate Willow moving into the next chapter of its history. Along with the need to build out the South Barrington campus, the Chapter 2 vision included executing a multi-site model in greater Chicago. The people of Willow Creek gave more than $80 million to that vision, in large measure because the multi-site model was passionately embraced as an exciting new initiative that was consistent with the church’s vision.

Partnering with Willow Creek during this campaign, we learned important lessons that have helped other congregations become successful multi-site churches.

Play to your strengths. When churches explore the multi-site option, ministry strengths must drive that decision, not simply ride the latest growth fad. For instance, Willow Creek leaders looked first at the ministry strengths God had provided. Greg Hawkins, executive pastor, determined the multi-site option was a true fit for their strength of facilitating “transformational moments” in a group experience, not for starting new churches. Willow Creek could more effectively expand their “ministry brand” by pouring resources into what they do incredibly well: replicate an innovation culture in which the gospel will be relevant and convenient to the local culture.

Strengthen your mission.  Another consideration related to the multi-site option: Does this move strengthen our stated mission? The multi-site option creates challenges in preservation of the missional identity of your church. By meeting in more than one site, the impetus to make such a dramatic move should come out of a clear ministry identity of your church.

Willow Creek was founded with the mission of “turning irreligious people into fully devoted followers of Jesus Christ.” Through the years, Willow has reached people as attendees invited and brought friends and neighbors with them to the services. The multi-site imperative came out of a clear understanding that when attendees lived more than 30 minutes away from the South Barrington campus, friends and neighbors wouldn’t make that trip often.

Don’t miss the point in this distinction: The DNA of Willow Creek is to influence the unchurched by equipping people to reach out to their respective spheres of influence. To no longer do so would not simply change an outreach activity, but alter the identity of the church. With a clear sense of identity, the church could move forward with the communication challenges that are a part of transitioning to a multi-site model.

Listen to the people, and open the channels of communication.  Considering a multi-site model for ministry must pay heed both to the community currently being served and to the community yet to be served. There’s a delicate tension to maintain between the people currently worshipping and those the church hopes to serve in the new site. Churches that successfully launch a second site have leaders who pay close attention to God’s guidance through prayer and conversation. Communication is critical.

Like many new ministry models, with initial success, the tendency could be to over generalize the approach. The multi-site model isn’t for every church who hits a down turn in attendance.

On the other hand, it could also be a great option to maximize resources to reach communities with a fresh, new ministry voice. Clearly understanding your present vision and priorities goes a long way in understanding whether or not this challenging and potentially rewarding step is right for your church.


Doug Turner is president of RSI Church Stewardship Group, fundraising specialists who have helped 5,200 churches raise more than $8 billion in the past 30 years. For more information, e-mail Turner at [email protected], or visit www.rsi.viscern.com.

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18 Nov

An Inside Look At Handbells

by Phyllis T. Hentz

Behind The Magic:
A Closer Look At Handbells And Handheld Chimes

by Phyllis T. Hentz

There is nothing quite like the sound of handbells and handheld chimes. Whether you
hear them accenting worship, accompanying a choir or in outreach beyond the church
building and whether the folks playing them are young or old, skilled or just plain
enthusiastic, handbells and handheld chimes speak with a sound of joyful praise. It is no
wonder that so many churches of all denominations have found exciting ways to put them to
use in worship, music, education and outreach ministries.

The following article features some thoughts about how handbells and handheld
chimes work, what to look for in a bell instrument purchase and making the most of
handbells or handheld chimes once a church has gotten started.

An Inside Look At Handbells

Before anyone even picks up a handbell, it is important to pay attention to some
strictly non-musical factors that can make a difference in the overall playing experience
such as the handle and handguard. For comfortable ringing and long life, the bell’s handle
should be smooth, scratch-resistant and reinforced to maintain its shape. It also should
be easily removable from the bell casting in case replacement becomes necessary. Between
the handle and the casting is a handguard. Sellersville, Penn.,-based Schulmerich Bells
recommends looking for one with a gentle curve to fit the hand such as the Master
Touch™ Guardian handguard. A choice of black or black and gold handguards can help
ringers identify their notes easily.

Inside the handbell ringers will find the yoke and clapper mechanism. More complex than
anyone may have imagined, it is designed not to let the clapper swing freely, but to
provide a controlled motion both before and after striking. Much of that control comes
from an elastothane spring built into the yoke. Schulmerich’s feature a special contour to
maintain maximum volume and clarity and include adjustable mechanical stops for precise
tension control. The clapper itself swings from an axle that must perform quietly and
reliably. An axle of stainless steel with nylon bearings should provide years of
trouble-free operation without lubrication.

At the bottom of the clapper is the clapper head typically made of synthetic rubber.
Clapper heads should be adjustable for setting each bell’s “voice.” The
adjustment range can be as simple as three increments. Quick-Adjust™ clapper heads
can be hand-adjusted to “soft,” “medium” and “hard.”
Infinitely adjustable heads, such as the Select-A-Strike™ clapper heads, offer more
tonal refinements, but typically require a screwdriver to change settings.

Believe it or not, the exact spot where the clapper contacts the bell casting has an
enormous impact on the sound of a handbell. The point of impact is called the “strike
point,” and ideal strike points can be determined through testing. Once identified,
manufacturers align the bell casting, yoke and handle locating pin so that the clapper is
positioned properly for the life of the bell. Finally, Schulmerich adds a bell-shaped
(campanaform) indicator on the handle to identify how the bell should be held to utilize
the strike point by the ringer.

An Inside Look At Handheld Chimes

Just as comfort is a key issue when choosing a handbell, it is a good place to begin in
choosing a handheld chime. The main component of any handheld chime instrument is the
sounding tube which functions as both the “bell” and the handle. Usually a
hollow, sturdy aluminum extrusion, the tube traditionally has been either round or square
in shape. To maximize ringing ease, Schulmerich’s engineers developed an octagonal tube
for the MelodyChime instruments that fits any hand–large or small–comfortably.

The clapper mechanism of a handheld chime instrument serves the same function as the
clapper of a handbell, and, therefore, it should be very similar in design. Remember to
check that the components in any handheld chime indicate a real attention to solid
performance and long life. For example, MelodyChime clappers move on the same lifetime
stainless steel axle in the same nylon bearings as in the handbell, and Schulmerich uses
the same hexagonal solid brass clapper shafts as well (although they are nickel-plated to
resist tarnish). Clapper heads, too, bear a strong resemblance to those on a fine set of
handbells. Look for fast voicing adjustments on the low and middle notes and flocked
rubber heads on the low notes for that full, rich sound. Finally, there is one more tool
for customizing sound: Be sure ringers can adjust the handheld chimes’ response easily
with a little rubber bumper mounted on the hexagonal shaft.

Although handheld chimes produce their tone a little bit differently than handbells
do–more on the order of a highly evolved tuning fork than a true bell–this does not mean
that hitting each instrument’s ideal strike point is not important. On the contrary, it is
crucial. The only way to be certain that it happens is for the manufacturer to
custom-tailor clapper shaft lengths on a note-by-note basis.

In addition to factors that affect comfort and sound, churches want to make sure that
their handheld chimes have a durable finish that can take plenty of abuse. Schulmerich
uses a baked-on powdercoating in white for naturals and black for accidentals. Note
markings must be clear and highly visible. Whether a church’s ringers are novices or
experts, they will appreciate it.

Where To Begin: How Many Bells?

The size of a church’s first handbell or hand chime set depends both on the budget and
on the number of students to be served. Although single-octave sets are available, the
practical minimum for making music and teaching an appreciable number of students is the
two-octave set, 25 bells from G4 (the G below Middle C) to G6. The maximum practical
number of students for a two-octave set is 15; the ideal number is seven or eight.

Bell sets grow by the addition of instruments on both ends of the set. A three-octave
set, for example, consists of 37 bells from C4 to C7. A set of this size can be rung by as
many as 22 students, but a more practical number–allowing each ringer to handle two
diatonics–is 11 students. Eventually, large or musically adventurous groups can work
toward playing sets as large as six octaves with 73 bells, from G2 to G8.

However, growth through acquisition of bells only is one side of the story; growth
through instruction, practice and commitment is the other. Even with a limited range of
bells, the devoted instructor and ringers can pursue complex music of an almost limitless
range. With the possible exception of the small, two-octave range, truly challenging music
is available for choirs of every size. It is worth pointing out that simple material is
available for choirs of all sizes as well.

Music teachers have little to fear when embarking on a handbell or handheld chime
program for the first time. Basic playing techniques are not only easy to teach; they are
simpler to learn from readily available training materials. There even is a complete
handbell curriculum for grades 4 through 12 developed by the Lima City Schools and
accepted by the state of Ohio (copies are available from Schulmerich Bells).

Where To Begin: Care And Performance Supplies

Handbells and handheld chimes are relatively self-contained instruments and need little
in the way of support equipment. They come with hard shell cases with individual cavities
for each bell or handheld chime and should be stored in their cases when not in use.
Although little maintenance is required, the proper care, handling and polishing of bells
should be carried out by students as part of the basic instructional program. Students
should wear clean, lint-free gloves when handling the handbells, and occasional polishing
with a good-quality bronze polish available from the bells’ manufacturer will help
preserve the bells’ finish and appearance. No such steps, of course, are necessary to
preserve the far-tougher finish of handheld chimes.

Handbell manufacturers offer a wide range of additional products to enhance care and
performance, but only a few are required for a new program. For example, special handbell
tables, built to the proper height for comfortable ringing and supplied in three-foot
lengths for easy configuration, are nice to have, but any sturdy tables will do for
getting started. However, table pads, typically of soft, four-inch thick foam, are
necessary both to protect handbells from hard table tops and to permit certain ringing
techniques like plucking, martellato and malleting.

Where To Begin: Resources And Support

Probably the most important element to consider in a handbell purchase is the
reputation and local presence of the instrument manufacturer’s representative. Look for a
supplier with a long history in handbell manufacture and support and a well-trained,
experienced representative in your area. It can be worthwhile to have someone nearby to
call on for recommendations and counsel regarding music, playing techniques, training and
so on.

Other key resources are the American Guild of English Handbell Ringers of Dayton, Ohio,
and Handbell Exploration International of Phoenix. Both offer fascinating seminars and can
be an entry point into the world of bell music.

Once You’ve Begun

The sooner churches start ringing, the sooner their choir will be wanting to perform,
so it is important to keep in mind the basics of managing any performance program, however
informal it may be.

First, establish and stick to a rehearsal schedule that is convenient for everyone,
ringers and directors alike.

Second, keep performances and rehearsals fresh by periodically updating the choir’s
music. This also is important for keeping pace with the ringers’ abilities. Hand in hand
goes periodic evaluation of your bell and chime selection with an eye toward possible
expansion as students become more advanced and the choir grows. Also, do not be afraid to
mix handbells with handheld chimes.

Finally, look for new ways to incorporate handbells and handheld chimes into the life
and work of the congregation. Church music leaders may want to investigate Handbells in
the Liturgy
, a detailed and inspirational handbook published by Concordia Press and
funded by a grant from Schulmerich Bells.

Phyllis T. Hentz is the music director for Schulmerich Bells headquartered in
Sellersville, Penn. For more information about handbells, handheld chimes, carillons or
any related questions, feel free to contact the company at (800) 423-7464 or by mail at
Carillon Hill, Sellersville, PA. 18960.

18 Nov

A New Bus –Lease or Loan

by Todd Loudis

By Todd Loudis

Most business managers cringe at the thought of a new bus acquisition for
a church. The congregation gets excited and the pastor knows that a new bus will present a
better image of the church to the community. But when it gets down to the question of how
a church can afford it, the bus acquisition often becomes a worrisome proposition.
Business managers should consider two financing options when a new bus acquisition is
planned: traditional bank financing through a local bank or vehicle leasing through a
finance company. Each option has its own benefits and drawbacks.

Loan and lease both offer the ability to pay for the vehicle over time with normal
length of term financing covering 24 to 60 months. Fixed payments over time allow the
church to plan for a monthly payment of a certain amount. In a normal business operation,
there are tax considerations available with each option but in a church setting, these
considerations will not necessarily apply.

What’s the difference then? Should the business manager not just shop for the best rate
and go from there? The differences lie in the programs each outlet offers the church.
Please be aware that we are discussing the typical transaction. Each transaction may vary
among all banks and lease companies. By knowing what to ask and what is required, the
business manager can make a more informed (and hopefully the best) decision about the bus

Bank financing

A local bank knows your congregation and, quite possibly, a member of the church works
for the bank. They know your history and would like to share in your growth. Bankers love
the fact that they can drive down the street and see your bus in the parking lot, knowing
they had a part in helping you finance the vehicle.

Banks are governed by rules that allow them to make loans based on their own portfolios
and certain ratios. They are often tied to specific programs that allow their loans to fit
into these ratios. Therefore, a local bank may tend to be more conservative in their
operations. Business equipment loans from a bank often require a significant down payment,
usually from 10- to 20-percent of the equipment cost. On a $40,000 bus, this may be an
$8,000 cash outlay. Yes, your payments then become less, but that initial cash outlay may
pose a problem. A bus is a depreciating piece of equipment. Banks are often leery of
committing to a loan term of over 36 months for these types of vehicles as the maintenance
and hard use depreciate these vehicles quicker than an automobile. Used vehicles may also
be financed through your bank, so check with your lender on their programs.

Your church may also have a credit line established at a bank. This essentially says
your church has a certain amount of dollars that it may borrow for whatever reason. This
is a great safety net if, for example, a heater or air-conditioner needs to be replaced or
that piece of property next door becomes available. Tapping that bank line for a vehicle
purchase reduces this available credit. The best function of this bank line is to use it
or preserve it for operating expenses. The perfect example is during stormy weather season
when collections are not as strong because attendance has fallen and your bills are still
coming due.

Lease financing

Lease financing funds are typically provided by insurance companies, holding companies
or businesses that invest their available cash to leasing portfolios. They are limited
only by their own funding requirements in regards to ratios and compliance. Although it
may not know your church the way a local bank will, consider also that it is not
prejudiced by what is known about your church and congregation.

Leasing uses the financial principle of “Pay for the part of the life of the
equipment that you use.” A fair market value lease or operating lease determines at
the end of the lease term what the piece of equipment will be worth. Subtracted from the
purchase price, you are paying for what you use of the equipment. An example, a new bus
sells for $40,000 and it is determined after 48 months, the bus will be worth 25% of the
original value or $10,000. Your payments are based on the $30,000 difference. At the end
of the lease, you may have several options. You may return the bus and owe nothing more.
You may purchase the bus for the fair market value ($10,000) or you can continue to lease
the bus based on the $10,000 price. You have, in effect, paid for the portion of the life
of the bus that you have used. Because of this, your monthly payments are less because you
are paying for less of the bus. Another benefit of leasing is that at this time, you may
upgrade your current equipment without the disposal hassles of selling the bus to someone

A finance (or capital) lease works the same as bank loan. At the end of the lease term,
you will own the bus outright. The difference between a finance lease and a bank loan is
the required down payments. Typically, a lease will only require the first payment in
advance or the first and last payments in advance. In the case of a 48-month term, this is
4% down or in our $40,000 example, $1,600–quite a difference in out-of-pocket cash. Lease
companies will also provide financing for used vehicles.

A lease is often non-cancelable. Herein lies the biggest drawback in that you are
committed for the term of the lease. Some lease companies will offer a buy-out after a
certain amount of time, but be prepared to pay a cancellation fee.

Credit review

Because no one owns a church, it is usually incorporated with a Board of Directors
acting as the managing body. Most banks and leasing companies will accept this as a
corporate-only transaction. No one with the church will be personally held as the
guarantor of the lease/loan. Because of this, you will need to provide audited financial
statements for a minimum of two years or tax returns if the financial information is
unaudited. This will prove to the institution whether, based on past performance, your
church will be able to handle the payments. You will also be asked for credit references
that you have charged with currently or in the past. Documents are then executed for a
managing director to sign.

Special considerations

Maintenance needs to be performed on all vehicles regardless of age. Some equipment
dealers provide a maintenance contract as an addition to the sales contract. Lease
companies will finance this contract amount with the bus lease. This is important to
consider because your church will be responsible for maintaining the bus in proper and
safe operating condition.

When acquiring a new or used vehicle, it is important to have the proper insurance
coverage. It does not take a large accident to exhaust the limitations. Because a lot of
churches do not have full-time drivers and rely on volunteer help or part-time drivers,
safety factors come into play. You are urged to check your existing policies for proper
coverage. Most lease companies will require a minimum $1,000,000 liability policy.

There is no easy answer to the question of leasing versus buying a church bus. Because
there are no real tax benefits, the answer should depend on the cash flow situation of the
church. Do you want to pay more up front or pay more on the back end?

Todd Loudis is the Director of Sales for Capital Funds Equipment Leasing in Joplin,
MO. Any questions may be directed to him at (800) 653-5327 or [email protected]

Down Payment First and Last – $1,640 10% – $4,000
Monthly Payment $820 $897
Total of Payments $39,360 $47,056
Residual Value $10,000 $0
Down Payment First and Last – $1,500 10% – $4,000
Monthly Payment $750 $750
Total of Payments $45,000 $49,000
Residual Value $6,000 $0
you can see, up-front expenses are lower with the lease option. A business manager will
have to decide which program fits the church’s cash flow needs.
18 Nov

Amazing Grace

Amazing Grace

QUAKERTOWN, Pa.—One of Harvest Community Fellowship’s core values is building “a community of grace,” a concept the church continually seeks to demonstrate. Harvest’s latest adventure, 40 Days of Grace, allowed them to put their faith into action through a series of weekly challenges and special outreach events.

Each week, the congregants were asked to keep an outward focus of grace, whether that meant taping a $20 tip to the garbage can or forfeiting a guilty pleasure, such as a fancy coffee, and instead, giving the treat – or the money to buy it – to someone else.

Individual acts of grace were only one component in this spiritual campaign. A desire to unite in gracefully reaching the community prompted several other events, such as a Black Friday Community Shopping Day, where those in need could shop for free new items (donated by church members) such as food, toys, clothing, appliances and furniture. A complimentary Thanksgiving feast was also held for local residents.

Senior Pastor Geoff Stevens credits the entire staff for developing the idea, which he says God dropped in their laps. “In our area, people are tired of hearing the words of the Gospel, so in order to reach them, we need to demonstrate the actions of the Gospel,” he shares. “In the Northeast, people are very skeptical of Christians. The unchurched up here all seem to have some horror story of how a church burned them, so now they won’t come near. We have had to face the brutal facts that, by in large, we – the Evangelical church – have done a miserable job showing the world that God loves them. The world can often be more gracious than uptight, lily-white Christians. We have been way too tied up in our fancy buildings and judgmental and critical attitudes toward those who struggle.”

For this reason, the church is committed to offering “real help for today’s real world.” Stevens explains his concern that we live in a world full of pain, suffering, hate and violence, where people often hurt one another and do whatever’s needed to get ahead. However, he continues, this is contrary to God’s nature, as He “hardwired us for grace” – the very same love and acceptance He shows to each of us. Because of this, he says, “when someone touches us with grace, it moves something deep within us.”

Open for a little more than a year, and with an average weekly attendance of 300, Harvest’s leadership is committed to seeking creative ways to connect people with God. “We want to transform our world,” Stevens admits. “All of us have influence, and we want to change our corner of the world by doing little acts of grace in the community. Hopefully, we’re helping people see and feel God’s love for them.”

— Karen Butler

Is your church doing anything to reach out? Send your outreach story ideas or news to [email protected] 

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