Selective application of amendments to states no longer a viable argument

Fred Hiestand's article attempting to defend MICRA's continued viability after the U.S. Supreme Court's opinion in Timbs v. Indiana, 39 S. Ct. 682 (2019) ("MICRA's 'cap' comports with right to jury trial under 7th," March 27), ignores the court's clear and unambiguous indication both at oral argument and in the opinion that selective application of the amendments to the U.S. Constitution to the states is no longer a viable argument.

Gasperini v. Center for Humanities, Inc., 518 U.S. 451 (1996), the case relied upon by Mr. Hiestand, did not involve a cap but instead dealt with a New York requirement that damages be comparable in similar cases. Justice Ruth Bader Ginsberg wrote that the 7th Amendment does not prevent that check on jury passion or prejudice, something that would survive the demise of the MICRA cap through California court's power to order a new trial on damages. Two years later, the Supreme Court decided Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998), and invalidated a judicial determination of damages versus the right to a jury's consideration of damages -- pursuant to the 7th Amendment.