concurring in part and dissenting in part: I agree with the majority’s resolution of the nonconstitutional issues in this case. I also agree with the majority’s determination that the statutoiy cap on noneconomic damages does not violate the doctrine of separation of powers. I would, however, reverse and remand to the district court because K.S.A. 60-19a02, as applied to plaintiff Amy C. Miller, violates the right to trial by juiy of Section 5 and the right to remedy provision of Section 18 of the Kansas Constitution Bill of Rights. Given my certainty about these constitutional infir*690mities, I reserve judgment on the merit of Miller s equal protection challenge.
The majority’s decision to uphold the cap flows from what I believe to be its misunderstanding and underperformance of this court’s duty to police legislative infringement of Kansas citizens’ constitutional rights. Although my colleagues are honest and hardworking judges for whom I have great respect, today we disagree.
On the jury trial issue, in particular, the majority apparently starts with what it views as a palatable result and works backward to articulate a substitute rationale for demonstrably infirm precedent. This approach is mystifying, as this court normally prides itself on doing exactly the opposite, following the law and logic to their natural conclusion. I see no reason to deviate from this practice in "this case. Nor is there a reason for the majority to cling to analytical errors infecting certain of our precedents, at times inflating the support they can provide to its chosen outcome. It is more honorable to repair a wrong tiran to persist in it. Thomas Jefferson, The Batture at New Orleans (1812), in 18 The Writings of Thomas Jefferson 123 (Bergh, ed. 1907).
On the right to remedy issue, the majority correctly recognizes that we permit the legislature to abolish a common-law remedy protected by Section 18 as long as it provides an adequate substitute remedy reasonably necessary in the public interest to promote the general welfare of the people of tire state. But, in my view, the majority fails to recognize the hollowness of the purported substitute here and neglects its responsibility to demand that even the illusory remedy be adequate. Indeed, its only adequacy discussion shifts its focus from tire purported remedy on which it has relied to the amount of the cap. In short, tire cap and the other legislation relied upon by the majority take from injured Kansans; these measures give nothing in return.
History of K.S.A. 60-19a02
Before I can discuss the reasons I depart from the majority, I pause to fill in its incomplete review of the relevant history behind the cap statute. The majority’s more casual approach to context may partly enable what I see as its later analytical missteps.
*691In 1976, the legislature enacted a package of health-care-related reforms. The Health Care Provider Insurance Availability Act (HCPIAA) was the main component of those reforms. See K.S.A. 40-3401. It had three key features.
First, the Act demanded that all health care providers, as a condition to practice in Kansas, must cariy professional liability insurance coverage of not less tiran $100,000 per occurrence with a $300,000 annual aggregate. K.S.A. 1976 Supp. 40-3402. Second, the Act created the Health Care Stabilization Fund (Fund), a state-run excess insurer, to provide coverage for judgments and settlements above the limits of a provider’s primary coverage. K.S.A. 1976 Supp. 40-3403; see Aves v. Shah, 258 Kan. 506,509,906 P.2d 642 (1995). Third, the Act established the Joint Underwriting Association Plan, a high-risk insurance pool for those providers unable to obtain the required primary insurance on the private market. K.S.A. 1976 Supp. 40-3413; see Aves, 258 Kan. at 508-09.
These three provisions were supposed to work together toward the goal of “guaranteeing to all Kansas citizens that all health care providers in the state would have primary insurance coverage with at least a $100,000 policy limit plus unlimited excess malpractice insurance coverage.” Lemuz v. Fieser, 261 Kan. 936, 951, 933 P.2d 134 (1997).
In addition to the HCPIAA, the 1976 legislation package included changes to tort litigation procedures in medical malpractice actions, among them: (1) elimination of corporate negligence claims against medical care facilities for granting/allowing staff privileges to a non-agent or non-employee physician, K.S.A. 1976 Supp. 65-442(b); (2) requirement of court approval for attorney fees in medical malpractice actions, K.S.A. 1976 Supp. 7-121b; (3) establishment of medical malpractice screening panels, K.S.A. 1976 Supp. 65-4901 et seq.\ (4) allowance of evidence of collateral source benefits in medical malpractice cases, K.S.A. 60-471 (Weeks 1976); and (5) shortening of the statute of repose in medical malpractice actions from 10 years to 4 years, K.S.A. 60-513(c) (Weeks 1976).
By 1984, problems with the Fund prompted changes to the mandatory insurance provisions of the Act. As initially established, pro*692viders were to pay surcharges based on a percentage of their primary coverage premiums into the Fund to build its balance until it reached $10 million. That balance was reached by 1981, and thus no surcharges were levied on health care providers from 1981 to 1983. But the Fund’s unlimited liability for excess coverage soon left it upside down, as more than $27 million in settlements and awards arose during the same time period. See Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 336, 757 P.2d 251 (1988).
The legislature addressed this problem by eliminating the $10 million limitation on the Fund’s balance; by capping the Fund’s liability at $3 million for any single judgment or settlement and at $6 million for the annual aggregate for any one provider; and by raising the mandatory primary coverage limits from $100,000 per occurrence/$300,000 annual aggregate to $200,000 per occurrence/$600,000 annual aggregate. See L. 1984, ch.178, sec. 1; ch. 238, secs. 2,4; see also Lemuz, 261 Kan. at 951; Kansas Malpractice Victims Coalition, 243 Kan. at 336.
Meanwhile, medical liability insurers and health care providers continued to push for additional reform. They claimed that rising medical malpractice insurance premiums had created a problem of affordability which, if left unaddressed, would drive health care providers from their businesses, affecting the availability and delivery of health care services for Kansas citizens. Report on Kansas Legislative Interim Studies to the 1986 Legislature, pp. 858-59 (1985). In response to these claims, in 1986, the legislature enacted House Bill 2661. This legislative initiative, for the first time, included caps on damages available to medical malpractice plaintiffs. Kansas Malpractice Victims Coalition, 243 Kan. at 337.
The caps were set out in K.S.A. 1986 Supp. 60-3407. That statute imposed a $250,000 cap on noneconomic loss and a $1 million cap on total recovery. L. 1986, ch. 229, sec. 13; K.S.A. 1986 Supp. 60-3407. The noneconomic damages cap was designed to be adjusted annually for inflation. L. 1986, ch. 229, sec. 13(d). In addition, H.B. 2661 again adjusted certain procedures for medical malpractice actions. It instituted mandatory settlement conferences, L. 1986, ch. 229, sec. 18; it introduced restrictions on expert witness testimony on the standard of care, targeting “professional” expert wit*693nesses, L. 1986, ch. 229, sec. 17; and it required an evidentiary hearing before a court could approve attorney fees, L. 1986, ch. 229, sec. 22; see K.S.A. 7-121b. The legislation also further reduced the limits of the Fund’s excess coverage from $3 million per claim/ $6 million annual aggregate to $1 million per claim/$3 million annual aggregate. K.S.A. 1986 Supp. 40-3403(f).
As H.B. 2661 worked its way through the legislative process, certain policy advocates began raising concerns that there was a crisis in liability insurance generally, not just in the medical malpractice area. The legislature responded to these concerns in 1987 by enacting a series of tort reforms. These included a $250,000 cap on pain and suffering damages in all personal injury actions other tiran medical malpractice. K.S.A. 1987 Supp. 60-19a01. Unlike the medical malpractice caps applicable to all noneconomic damages and to total awards, the personal injury cap applied only to pain and suffering, a subset of noneconomic damages. See Kansas Malpractice Victims Coalition, 243 Kan. at 337.
In July of 1987, this court decided Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987), in which we held the statute allowing evidence of collateral source benefits in medical malpractice actions impermissibly singled out negligent health care providers “for preferential treatment not extended to any other tortfeasor, professional or otherwise” in violation of equal protection. Farley, 241 Kan. 663, Syl. ¶ 6.
Then, in January 1988, in Kansas Malpractice Victims Coalition, Shawnee County District Court Judge Franklin Theis declared the damages caps and certain annuity provisions of the 1986 malpractice legislation package, H.B. 2661, unconstitutional. Judge Theis ruled that these elements of the law violated the right to jury trial of Section 5 and the right to remedy provision of Section 18. An appeal of Judge Theis’ decision was pending before this court during the 1988 legislative session.
The Farley decision and Judge Theis’ ruling fostered a belief among health care providers and medical liability insurers that tort reforms must be applied to all personal injury actions to withstand constitutional challenge. Specifically, they feared that the medical malpractice caps at issue in the Kansas Malpractice Victims Coa*694lition appeal would be held to violate equal protection. They thus began a push to expand the medical malpractice provisions to all personal injury actions. See Testimony of Jerry Slaughter, House Judiciary Committee Minutes, February 8, 1988; Testimony of Tom Bell, Kansas Hospital Association, House Judiciary Committee Minutes, February 9, 1988; Testimony of Ron Smith, Kansas Bar Association, House Judiciary Committee Minutes, February 10, 1988.
The legislature responded by passing House Bill 2692, which amended K.S.A. 1987 Supp. 60-19a01 to malee it applicable only to non-medical malpractice personal injury actions based on causes of action that accrued after July 1,1987, and “before July 1,1988.” L. 1988, ch. 216, sec. 2. Section 3 of H.B. 2692 contained what would become K.S.A. 60-19a02, the statute at issue in this case. Its language remains unchanged through today:
“(a) As used in this section ‘personal injury action’ means any action seeking damages for personal injury or death.
“(b) In any personal injuiy action, the total amount recoverable by each party from all defendants for all claims for noneconomic loss shall not exceed a sum total of $250,000.
“(c) In every personal injury action, the verdict shall be itemized by the trier of fact to reflect the amount awarded for noneconomic loss.
“(d) If a personal injury action is tried to a jury, the court shall not instruct the jury on the limitations of this section. If the verdict results in an award for no-neconomic loss which exceeds the limit of this section, the court shall enter judgment for $250,000 for all the party’s claims for noneconomic loss. Such entry of judgment by the court shall occur after consideration of comparative negligence principles in K.S.A. 60-258a and amendments thereto.
“(e) The provisions of this section shall not be construed to repeal or modify the limitation provided by K.S.A. 60-1903 and amendments thereto in wrongful death actions.
“(f) The provisions of this section shall apply only to personal injury actions which are based on causes of action accruing on or after July 1, 1988.”
By combining the two previous caps into one, the legislature made each more restrictive of potential jury awards. The cap that applied to personal injury actions now applied to all noneconomic damages, not merely the subset of pain and suffering. The cap on nonecon-omic damages in medical malpractice actions no longer included an inflation adjustment provision.
*695Shortly after K.S.A. 60-19a02 was enacted, this court issued its decision in Kansas Malpractice Victims Coalition, bolding that the 1986 medical malpractice caps on noneconomic damages ($250,000) and total damages ($1 million) violated the right to jmy trial under Section 5 and the right to remedy under Section 18. Kansas Malpractice Victims Coalition, 243 Kan. 333, Syl.
Later in 1988, a judge of the federal District of Kansas certified a question to this court on whether the 1987 cap on pain and suffering damages in non-medical malpractice personal injury actions violated the right to juiy trial and right to remedy provisions of the Kansas Constitution. Samsel v. Wheeler Transport Services, Inc., 244 Kan. 726,771 P.2d 71 (1989) (Samsel I). This court issued a preliminary decision in the case, Samsel I, on March 30, 1989. The court rejected the constitutional challenges without articulating an analysis, stating only: “A majority of this court has determined drat the answer to the certified question is no. Neither the original nor the amended version of [K.S.A.] 60-19a01 violates the Constitution of the State of Kansas.” A “formal opinion expressing the views of the members of the court” was to be filed “when . . . prepared.” Samsel I, 244 Kan. at 727. This highly unusual accelerated procedure was expressly driven by the issue’s concurrent politicization, by “widespread interest and statewide effect of the court’s determination of this question.” Samsel I, 244 Kan. at 727. Justices Harold S. Herd and Donald L. Allegrucci were shown as dissenters. Samsel I, 244 Kan. at 727.
Having received an abbreviated blessing from this court, the legislature wasted no time in again lowering the Fund’s liability limits. Under a May 1989 provision, providers would be free to choose one of three different levels of excess coverage. The minimum level would now be $100,000 per judgment with a $300,000 annual aggregate. L. 1989, ch. 143, sec. 3. The relevant substance of this provision has also remained exactly the same through today. See K.S.A. 40-3403(l)(l).
This court filed its formal opinion in Samsel, in March 1990. Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (Samsel II). Although the initial certified question was confined to K.S.A. 1987 Supp. 60-19a01—the cap on pain and suffer*696ing damages in non-medical malpractice actions that applied to plaintiff Douglas Samsel’s cause of action arising out of his May 16, 1988, injury—Samsel II accepted the parties’ invitation to rule upon 1988’s K.S.A. 1988 Supp. 60-19a02 as well. The majority rejected Samsel’s challenges to its constitutionality under Section 5 on jury trial and Section 18 on right to remedy. Justice Tyler Lockett, writing for the five-member majority, characterized the differences between 60-19a01 and 60-19a02 as minor and said that they gave “rise to no additional issues”; thus “no purpose would be served by requiring [a plaintiff in Samsel’s position whose cause of action accrued after July 1, 1988,] to argue the same issues resolved in this case.” 246 Kan. at 346-47.
Right to Trial by Jury
Section 5 of the Kansas Constitution Bill of Rights could not be simpler or more plain: “The right to trial by jury shall be inviolate.”
This language preserves the right to jury trial in those causes of action that were triable to a jury under the common law extant in 1859, when the Kansas Constitution was ratified by the people of our state. In re Rolfs, 30 Kan. 758, 762, 1 P. 523 (1883); see In re L.M., 286 Kan. 460, 476, 186 P.3d 164 (2008) (Luckert, J., concurring) (“[T]he uncompromising language of [Section 5] applies if an examination of history reveals there was a right at common law to a jury trial under the same circumstances.”). Moreover, the right is more than a right to impanel a jury. It is a process that includes the right to assemble a jury, a right to present evidence, a right to have the jury determine and award damages, and the right to a judgment for the full damages as determined by the juiy and supported by the evidence. See Hasty v. Pierpont, 146 Kan. 517, 520, 72 P.2d 69 (1937) (right to jury trial preserves substantive incidents of common-law jury trial, not “mere matters of form and procedure”); see also Colgrove v. Battin, 413 U.S. 149, 157 n.11, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973) (substantive incidents of common-law jury trial include functions “regarded as fundamental, as inherent in and of the essence of the system of trial by jury”) (quoting Scott, Trial by Jury and the Refonn of Civil Procedure, 31 Harv. L. Rev. 669, 671 [March 1918]).
*697Today’s majority has no quibble with the historical applicability of Section 5 to common-law tort actions and to medical malpractice actions in particular. Such matters were triable to a jury as a matter of right at common law when the Kansas Constitution was ratified, and thus Section 5 guarantees the parties the right to a jury trial in this case. See Samsel II, 246 Kan. at 358; Kansas Malpractice Victims Coalition, 243 Kan. at 342-43.
The majority also correctly concludes that the determination of noneconomic damages was a fundamental part of a jury trial at common law. This point is also well-settled. See Smith v. Printup, 254 Kan. 315, 324, 866 P.2d 985 (1993) (“There is no question in Kansas that the right to trial by jury includes the right to have a jury determine actual damages.”); Samsel II, 246 Kan. at 350-52, 358 (under Kansas Constitution, common law, right to juiy trial includes right to have juiy determine economic, noneconomic damages); Kansas Malpractice Victims Coalition, 243 Kan. at 343 (“The juiy’s traditional role is to decide issues of fact. . . . The determination of damages is an issue of fact. Therefore, it is the jury’s responsibility to determine damages.”); accord Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (2012) (Missouri Constitution’s “inviolate” right to jury trial includes right to have juiy determine facts, including noneconomic damages).
It is after its agreement on these two irrefutable points that the majority first goes astray. The next question that must be answered is whether K.S.A. 60-19a02 impairs the right to jury trial by interfering with the jury’s fundamental function in determining none-conomic damages. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 376, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996) (after determining applicability, court considers impairment; Seventh Amendment juiy trial analysis asks whether “particular trial decision must fall to the jury ... to preserve the substance of the common law right as it existed” at ratification); 9 Wright & Miller, Federal Practice & Procedure: Civil § 2302.4 (3d ed. 2008) (analysis of whether procedure violates Seventh Amendment “must look to whether that procedure obstructs or interferes with the juiy’s substantive role as the fact-finder”). Rather than stating in a *698straightforward way that K.S.A. 60-19a02 does impair the Section 5 right to jury trial, the majority feints toward then-justice Kay McFarland’s position in her concurrence in Samsel II that the right to jury trial does not extend to the remedy phase of trial. Samsel II, 246 Kan. at 363 (McFarland, J., concurring). It does not, however, endorse this position. Rather, it merely announces summarily that it need not “engage these contentions for long,” stating that the cap “encroaches” upon Section 5’s jury trial right.
This “encroachment” holding should end the matter, and the cap should be struck down as unconstitutional. Although the majority does not define “encroachment” as impairment, I discern no analytical daylight between the two concepts, and the majority suggests none. The noneconomic damages cap “necessarily infringes” on the inviolate right to trial by jury in a medical malpractice action as the right existed at common law and was made constitutional in 1859. Watts, 2012 WL 3101657, at ⅞6. “The individual right to trial by jury cannot ‘remain inviolate’ when an injured party is deprived of the jury’s constitutionally assigned role of determining damages according to the particular facts of the case.” Watts, 2012 WL 3101657, at "6. Giving the jury “a practically meaningless opportunity to assess damages simply ‘pays lip service to the form of the jury but robs it of its function.’ ” Watts, 2012 WL 3101657, at *7 (quoting Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 655, 771 P.2d 711 [1989] [en banc]); see also Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 735-36, 691 S.E.2d 218 (2010) (striking down damages cap for infringing state constitution’s inviolate right to jury trial); Lakin v. Senco Products, Inc., 329 Or. 62, 78-79, 987 P.2d 463, 473 (1999) (same); Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156, 164 (Ala. 1991) (same); Smith v. Department of Ins., 507 So. 2d 1080, 1089 (Fla. 1987) (same); Ameson v. Olson, 270 N.W.2d 125, 136 (N.D. 1978) (same).
The majority does not stop at this place, as it should, instead deciding that the legislature may “constitutionally obstruct” Kansans’ right to jury trial if, in the court’s judgment, the two-part due process-based quid pro quo test applicable to Section 18 analysis is satisfied. I believe the quid pro quo test to be a senseless and unsupported overlay that transforms what the people made invio*699late into something violable at will. My colleagues’ insistence upon this step overlooks long-standing limitations on the legislature’s power to modify the common law; overestimates the persuasive force of prior Kansas cases; and shortcuts the necessary cost-benefit evaluation. In the end, all of this means that sound analysis is sacrificed in favor of condescension toward the legislature.
These are marked flaws in the majority’s approach, and I address each express error in the subsections below. But first I am compelled to point out three other problems arising from what the majority does not say. These problems mark dramatic departures from our usual patterns and practices in countless cases of many types. These more general criticisms spotlight errors in the majority’s reasoning and decision that are at least as bad, if not worse, than its express and specific errors because of their tendency to undermine the overall predictability and stability in Kansas law that should always be among the paramount goals of this court.
Three Problems
First, the majority ignores the plain “inviolate” language chosen by Kansas citizens for Section 5’s jury trial provision. Inviolate means not “disturbed or limited.” In re Rolfs, 3Q Kan. at 762. It is defined as “ ‘[n]ot violated; unimpaired; unbroken; unprofaned.’ ” Samsel II, 246 Kan. at 368 (Herd, J., dissenting); see also Watts, 2012 WL 3101657, at *3 (“inviolate” means free from change or blemish, pure, unbroken) (citing Webster’s Third New International Dictionary 1190 [1993]); Sofie, 112 Wash. 2d at 656 (citing same) (“inviolate” connotes deserving of highest protection, free from assault, trespass, untouched, intact). This inviolate right to jury trial is “a basic and fundamental feature of American jurisprudence.” Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995 (1965); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 340-41, 343, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979) (Rehnquist, J., dissenting) (right so important that denial of “right of jury trial was listed among the specific offensive English acts denounced in tire Declaration of Independence”; right a “bulwark” of liberties, so essential that it “ ‘was probably the only one universally secured by the first American state constitutions’ ”) (quot*700ing Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 281 [I960]).
The language of Section 5 is “uncompromising.” In re L.M., 286 Kan. at 476 (Luckert, J., concurring). Section 5 imposes a “clear, precise and definite limitation!] upon the powers of the legislature.” Atchison Street My. Co. v. Mo. Pac. My. Co., 31 Kan. 660, 665, 3 P. 284 (1884). It was chosen precisely because the people recognized that the right to jury trial required protection from legislative efforts to modify it in ways that destroy the substance of that right. See Wyandotte Const. Convention 462-63 (July 25, 1859) (“[T]hat veiy valuable right we propose to secure to tire citizen in retaining the right of trial by juiy, intact, will be accomplished by die words, ‘The right of trial by juiy shall be inviolate.’ ”); see also State ex rel. v. City of Topeka, 36 Kan. 76, 85-86, 12 P. 310 (1886) (by preserving the right as “inviolate,” framers intended that the right of trial by juiy “shall be and remain as ample and complete as it was at the time when the [Constitution was adopted”).
This court’s deliberately chosen and carefully cultivated habit, when doing comparatively lowly statutoiy inteipretation intended only to discern the intent of the legislature and not the people, is to start with the text. See Board of Leavenworth County Comm'rs v. Whitson, 281 Kan. 678, 685, 132 P.3d 920, 926 (2006) (“[t]he most fundamental rule of statutory interpretation and construction, to which all other rules are subordinate, is that the intent of the legislature governs”; “the legislature is initially presumed to have expressed [its intent] through the language it used”); see also O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 331, 277 P.3d 1062 (2012); Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007); Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88,106 P.3d 492 (2005). If the text is clear, we mightily resist going beyond it to arrive at an authoritative interpretation. See Whitson, 281 Kan. at 685 (“[a]n appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there”); see also O’Brien, 294 Kan. at 331; Graham, 284 Kan. at 554; GT, Kansas, L.L.C. v. Riley County Register of Deeds, *701271 Kan. 311, 316, 22 P.3d 600 (2001). Even a learned Court of Appeals colleague has not persuaded us to do otherwise. See Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 326-35, 255 P.3d 1186 (2011) (Leben, J., concurring) (urging discernment of legislative intent by any means necessary rather than employment of strict textualism). This habit is the conservative choice. It respects the legislature’s ability to say what it means about its public policy choices, conforming to its and our recognized institutional competencies. Should we not be at least as careful, at least as respectful when interpreting the people’s document? And should that care and that respect not reach their zeniths when we examine that portion of the document, the Bill of Rights, specifically designed to make clear those individual freedoms that cannot be infringed by majoritarian government? It is virtually inconceivable that any of my colleagues in the majority would answer “no” to these questions. Their failure even to ask them is a mysteiy.
Second, the majority’s decision to tighten prior courts’ misguided embrace of the quid pro quo test in Section 5 jury trial examination—rather than kick it to the curb where it always belonged—demonstrates a completely uncharacteristic lack of curiosity about the guidance to be found in the experience of our sister states. Not one—not one—of the 19 states that have considered whether damages caps violate their state constitutional right to jury trial has given the quid pro quo test any role in the decision; this is true regardless of the particular wording of the state constitutional provision at issue and regardless of the ultimate outcome on the constitutional question. See Moore, 592 So. 2d at 159-65 (right to jury trial “inviolate”); Evans ex rel. Kutch v. State, 56 P.3d 1046, 1050-51 (Alaska 2002) (right to jury trial “preserved”); Smith, 507 So. 2d at 1088-89 (right to jury trial “inviolate”); Atlanta Oculo-plastic Surgery P.C., 286 Ga. at 733 (right to juiy trial “inviolate”); Kirkland v. Blaine County Medical Center, 314 Idaho 464,466-69, 4 P.3d 1115 (2000) (right to jury trial “inviolate”); Johnson v. St. Vincent Hospital, 237 Ind. 374, 382-86, 404 N.E.2d 585 (1980) (right to jury trial “inviolate”), overruled on other grounds In re Stephens, 867 N.E.2d 148 (Ind. 2007); Murphy v. Edmonds, 325 *702Md. 342,351 n.3, 601 A.2d 102 (1992) (right to jury trial “inviolably preserved”); Zdrojewski v. Murphy, 254 Mich. App. 50, 75-76,657 N.W.2d 721 (2002) (right to juiy trial “shall remain”); Watts, 2012 WL 3101657, at s6-7 (right to jury trial “inviolate”); Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 953, 663 N.W.2d 43 (2003) (right to jury trial “inviolate”); Ameson, 270 N.W.2d at 137 (right to jury trial “inviolate”); Arbino v. Johnson ir Johnson, 116 Ohio St. 3d 468, 473-77, 880 N.E.2d 420 (2007) (right to jury trial “inviolate”); Lakin, 329 Or. at 73-79 (right to jury trial “inviolate”); Matter of Certif. of Question of Law, 544 N.W.2d 183,202-OS (S.D. 1996) (right to juiy trial “inviolate”); Judd v. Drezga, 103 P.3d 135, 144-45 (Utah 2004) (right to juiy trial “inviolate” only in capital cases; right to juiy trial guaranteed in civil cases); Etheridge v. Medical Center Hospital, 237 Va. 87, 376 S.E.2d 525 (1989) (juiy trial “preferable,” “sacred”); Sofie, 112 Wash. 2d at 642-67 (right to jury trial “inviolate”); Robinson v. Charleston Area Med. Center, 186 W. Va. 720, 730-31, 414 S.E.2d 877 (1991) (right to juiy trial “preserved”); Guzman v. St. Francis Hospital, Inc., 240 Wis. 2d 559, 573-78, 623 N.W.2d 776, 783-85 (Wis. App. 2000) (right to juiy trial “inviolate”); overruled on other grounds Ferdon v. Wisconsin Patients Comp. Fund, 284 Wis. 2d 573, 701 N.W.2d 440 (2005). One has expressly rejected such an approach: The Oregon Supreme Court in Lakin. 329 Or. at 80-82.
Lakin involved a challenge to the constitutionality of a cap on noneconomic damages in personal injury actions. The defendant argued that the cap did not violate the plaintiff s right to jury trial because the plaintiff received a substantial recovery. Lakin, 329 Or. at 80 (citing Hale v. Port of Portland, 308 Or. 508, 523, 783 P.2d 506 [1989]) (state constitutional right to remedy provision not violated when legislature modifies, abolishes cause of action, as long as injured party left with some substantial remedy). The Lakin court held that the “substantial remedy” analysis was completely irrelevant to its consideration of the constitutional right to jury trial:
“We do not find Hale s [right to remedy analysis] relevant to our analysis of Article I, section 17. This court’s Article I, section 17, jurisprudence never has established a ‘substantial’ remedy test in defining the scope and meaning of the right of jury trial. Moreover, we do not assess the constitutionality of [the cap] under Article *703I, section 17, based on the amount of the statutory cap; rather we assess its constitutionality because it is a cap on the jury’s determination of noneconomic damages.” 329 Or. at 81.
The majority’s apparent indifference to other jurisdictions’ cases is remarkably atypical, as our cases consulting and considering the wisdom of other states are myriad. See, e.g., Gaumer v. Rossville Truck & Tractor Co., 292 Kan. 749, 758, 257 P.3d 292 (2011) (interpreting Kansas product liability statute, noting positions of sister states with similar product liability statutes); In re 285 Kan. 53, 63, 169 P.3d 1025 (2007) (interpreting Kansas statute on presumptions of paternity, noting decisions by sister states regarding related statutes); In re L.M., 286 Kan. at 471; see also Custer, Citation Practices of the Kansas Supreme Court and Kansas Court of Appeals, 8 Kan. J.L. & Pub. Pol’y 126, 127 (Spring 1999) (providing data on out-of-state citation by Kansas Supreme Court; noting Supreme Court cited to other states’ opinions 14.4 percent in 1935, 5.8 percent in 1965, 13.9 percent in 1995).
This has been true, even when the issue before us has been one of state constitutional law. See In re Care 6- Treatment of Onti-heros, 295 Kan. 10, 24, 287 P.3d 855 (2012) (referring to Virginia Supreme Court’s interpretation of Virginia Constitution); State v. Sanchez-Loredo, 294 Kan. 50, 58, 272 P.3d 34 (2012) (citing multiple cases from other jurisdictions interpreting their state constitutions under similar challenges); In re K.M.H., 285 Kan. at 72-79 (discussing treatment of constitutional questions in several out-of-state cases with similar factual, legal issues); Montoy v. State, 279 Kan. 817, 826-28 112 P.3d 923 (2005) (same); Canaan v. Bartee, 276 Kan. 116, 131, 72 P.3d 911 (2003) (same); see also Baude, Interstate Dialogue in State Constitutional Law, 28 Rutgers L.J. 835, 838, 847-64, 852 (1997) (collecting “comprehensive” list of occasions on which state high courts refer to constitution of other states; suggesting Kansas Supreme Court decisions had, at time of article’s publication, made at least 94 references to constitutions of other states including 9 references to Constitution of California; 6 references each to Kentucky and Ohio constitutions; 5 to Colorado and Florida; 4 to Alaska and Indiana; 3 references each to the constitutions of Arizona, Arkansas, Illinois, Iowa, Michigan, Mis*704souri, Oklahoma, Wisconsin; 2 references each to constitutions of Connecticut, Maryland, Massachusetts, Montana, Nebraska, New Jersey, New Mexico, Pennsylvania, South Carolina, Texas; 1 reference to constitutions of Delaware, Idaho, Louisiana, Minnesota, Nevada, New Hampshire, Tennessee, Utah, Virginia, West Virginia, and Wyoming); see generally Gardner, Whose Constitution Is ItP Why Federalism and Constitutional Positivism Don’t Mix, 46 Wm. & Mary L. Rev. 1245,1263-64 (2005) (“American courts have a long tradition of consulting related rulings from other jurisdictions when analyzing issues arising under the law of their own jurisdictions[, even] in constitutional law despite the fact that the answers to constitutional questions are in principle to be found exclusively within the four corners of the relevant constitution.”); Cauthen, Horizontal Federalism in the New Judicial Federalism: A Preliminary Look at Citations, 66 Alb. L. Rev. 783, 788, 790-94 (2003) (study of 13 state supreme courts’ citation to other state supreme court decisions when interpreting state constitutional rights); see also State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992) (listing “sister state decisions” as “tool[] of analysis” for interpreting Connecticut constitution); State v. Wheaton, 121 Idaho 404, 408, 825 P.2d 501 (1992) (Bistline, J., concurring) (court receptive to reliance on sister state decisions in interpreting Idaho Constitution); Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992) (encouraging citation to sister state constitutional decisions); State v. Zaccaro, 154 Vt. 83, 87, 574 A.2d 1256 (1990) (when interpreting Vermont Constitution, the court “may look for guidance to persuasive holdings . . . from . . . sister-state jurisdictions”). Again, the majority offers us no clue why it foregoes the usual practice its members have so routinely employed.
Third, and perhaps most revealing, my colleagues in today’s majority make no mention of defense counsel’s repeated statements during oral argument that the quid pro quo test does not apply to analysis of Section 5’s right to jury trial. The majority’s complete silence about this capitulation, its failure even to attempt to explain it away, is another mystery—especially given several members’ near-total inflexibility when asked to consider issues and arguments not previously made or preserved by the parties. See State v. Kelly, *705No. 102,210, filed September 28, 2012 (Nuss, C.J., dissenting, joined by Biles and Moritz, JJ.) (contemporaneous objection to evidence required, even in bench trial on stipulated facts designed only to preserve right to appeal suppression issue); State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010) (court has “consistently been refusing to review an evidentiary issue without a timely and specific objection even if the issue involves a fundamental right”); State v. King, 288 Kan. 333, 348-49, 204 P.3d 585 (2009) (legislature clearly intended K.S.A. 60-404 to require timely, specific objection in order to preserve evidentiary issues for appeal). I simply cannot fathom why today’s majority elects to leave its ordinary path on preservation, at the same time not recognizing that when “neither party defends the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished.” Citizens United v. Federal Election Com’n, 558 U.S. 310, 363, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010).
Having addressed what is left out of the majority’s decision, I turn to the substantial damage done by what it does discuss.
Limitations on Modification of Common Law
The majority’s first expressed reason for applying the quid pro quo test to excuse K.S.A. 60-19a02’s impairment of Kansans’ right to jury trial is that tire legislature can modify the common law. I do not dispute this general proposition. In certain circumstances, the legislature may modify the common law, although the practice was initially viewed with enough skepticism that it gave rise to a well-known canon of construction holding that statutes in derogation of the common law should be strictly construed. See Popkin, Materials on Legislation—Political Language and the Political Process 65-67, 74-75 (4th ed. 2005). What the majority fails to appreciate is that what may have been a mere common-law right to jury trial on the day before ratification of Section 5 was no longer a mere common-law right from ratification onward. Ratification expressed the people’s choice to elevate the common-law right to jury trial to enumerated constitutional status. That status put it beyond everyday legislative meddling. The people entrusted juries with the task of deciding damages. The legislature’s unwillingness *706to do so—because it has been persuaded by one side with a dog in the fight—requires endorsement by the people before it can enjoy the force of law.
The critical distinction between common and constitutional law is hornbook material, as the United States Supreme Court emphasized long ago in Dimick v. Schiedt, 293 U.S. 474, 487, 55 S. Ct. 296, 79 L. Ed. 603 (1935):
“It is said that the common law is susceptible of growth and adaptation to new circumstances and situations, and that the courts have power to declare and effectuate what is the present rule in respect of a given subject without regard to the old rule; and some attempt is made to apply that principle here. The common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions. [Citation omitted.] But here we are dealing widr a constitutional provision which has in effect adopted die rules of the common law in respect of trial by jury as these rules existed in 1791. To effectuate any change in these rules is not to deal widr die common law, qua common law, but to alter the Constitution. The distinction is fundamental, and has been clearly pointed out by Judge Cooley in 1 Const. Limitations (8th Ed.) 124.”
See also Watts, 2012 WL 3101657, at ⅜8 (allowing legislature to modify constitutional rights makes protections “of only theoretical value . . . [s]uch rights would not be rights at all but merely privileges that could be withdrawn”); Atlanta Oculoplastic Surgery, P.C., 286 Ga. at 735 (general legislative authority to modify common law does not permit abrogation of constitutional rights); Sofie, 112 Wash. 2d at 652-54.
Justice Herd made the same point in his dissent in Samsel II:
“Giving the legislature die authority to limit damages by changing the common law, or otherwise, violates § 5 of the Kansas Bill of Rights by taking the damage question away from the jury. A written constitution is adopted for the purpose of limiting the power of government. Providing that trial by jury shall be inviolate is a limitation on government as a protection of individual rights. There is no question the legislature has the power to change or abolish the common law. That, however, does not change the Kansas Constitution. A later change in die common law does not affect the meaning of § 5. Its meaning was fixed in 1859. The proper method of constitutional change is by amendment, not legislation.” 246 Kan. at 369-70 (Herd, J., dissenting).
Even the case that is generally considered the source of recognition of legislative power to modify common law, Munn v. Illinois, *70794 U.S. 113, 134, 24 L. Ed. 77 (1876), is explicit about constitutional limitations on the power: “Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations.” See also In re Tax Appeal of ANR Pipeline Co., 276 Kan. 702, 725, 79 P.3d 751 (2003) (Kansas Constitution limits otherwise plenary power of legislature); Harris v. Shanahan, 192 Kan. 183, 207, 387 P.2d 771 (1963) (“It is axiomatic that [any] act of the legislature[] is subject to the limitations contained in the Constitution, and where such act exceeds the bounds of authority vested in the legislature and violates the limitations of the Constitution, it is null and void and it is the duty of courts to so declare.”); Lemons v. Noller, 144 Kan. 813, 817, 63 P.2d 177 (1936) (citing State v. Weiss, 84 Kan. 165, 168, 113 P. 388 [1911]; Ratcliff v. Stockyards Co., 74 Kan. 1, 16, 86 P. 150 [1906]) (legislature free to act except where Kansas Constitution restricts).
Today’s majority violates the basic rule of these cases. This violation compounds earlier error in Kansas Malpractice Victims Coalition and Samsel II, as well as Manzanares v. Rell, 214 Kan. 589, 522 P.2d 1291 (1974) (examining constitutionality of no-fault automobile insurance legislation), by focusing on what the legislature can do rather than on what it cannot. I further discuss the weakness of the majority’s stare decisis argument in the next subsection.
The Weakness of Precedent
The majority invokes stare decisis to further support its application of the quid pro quo test to save K.S.A. 60-19a02 from violation of plaintiff Miller’s Section 5 jury trial right. It cites Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010), for the general principle that a “court of last resort will follow the rule of law it established in its earlier cases unless clearly convinced the rule was originally erroneous or is no longer sound because of changing conditions and more good than harm will come by departing from precedent.” 290 Kan. at 112.
I agree that Rhoten lays out the governing rule and its recognized exceptions, but I emphasize that it excuses us from following prec*708edent that is “plainly and unmistakably the result of mistake and error.” Prowant, Administratrix v. Kings-X, 184 Kan. 413, 416-17, 337 P.2d 1021 (Jackson, J., dissenting), rev’d on rehearing, 185 Kan. 602, 347 P.2d 254 (1959); see also Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (quoting Lawrence v. Texas, 539 U.S. 558, 577, 123 S. Ct. 2472, 156 L. Ed. 2d 508 [2003]) (Stare decisis does not require adherence to “a past decision when its rationale no longer withstands ‘careful analysis.’ ”); Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 610, 214 P.3d 676 (2009) (“This courtis not inexorably bound by precedent; it will reject rules that were originally erroneous or are no longer sound.”). When faced with such a “mistake and error,” Rhoten demands only that we also assess the costs and benefits of a decision to abandon an erroneous precedent, requiring the benefits to outweigh the costs.
We have also recognized that stare decisis is at its weakest in constitutional cases because our mistakes cannot be easily corrected by ordinary legislation. State v. Hoeck, 284 Kan. 441, 463, 163 P.3d 252 (2007); see also Agostini v. Felton, 521 U.S. 203,235-36, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (erroneous court interpretations in such cases “can be altered only by constitutional amendment or by overruling our prior decisions”); Watts, 2012 WL 3101657, at *10 (quoting Mountain Grove Bank v. Douglas County, 146 Mo. 42, 54, 47 S.W. 944 [Mo. 1898]) (if people disagree with court interpretation of constitution, opportunity to change organic law more remote than opportunity to repeal, alter statute; “[m]oreover, no set of judges ought to have the right to tie the hands of their successors on constitutional questions, any more than one [set of legislators] should those of its successors on legislative matters”). And the principle of stare decisis is weaker still when the prior decision involved an erroneous “application of a constitutional principle rather than an interpretation of the Constitution to extract the principle itself.” Smith v. Allwright, 321 U.S. 649, 665-66, 64 S. Ct. 757, 88 L. Ed. 987 (1944).
Finally, the majority also overlooks another consideration mitigating strict application of stare decisis in constitutional cases: Our allegiance must be to the Constitution itself, “not what we have *709said about it.” Graves v. N.Y. ex rel. O’Keefe, 306 U.S. 466, 491-92, 59 S. Ct. 595, 83 L. Ed. 927 (1939) (Frankfurter, J., concurring); see also Harris v. Anderson, 194 Kan. 302, 314, 400 P.2d 25 (1965) (Fatzer, J., dissenting) (quoting 3 Warren, The Supreme Court in United States History, p. 470: “ However the court may interpret the provisions of the Constitution, it is still the Constitution which is the law and not the decision of the court. “To the decision of an underlying question of constitutional law no . . . finality attaches. To endure, it must be right.” ’ ”).
The majority relies on Kansas Malpractice Victims Coalition and Samsel II, both of which applied the quid pro quo test to excuse impairment of the right to jury trial. Samsel II, 246 Kan. at 358, 362; Kansas Malpractice Victims Coalition, 243 Kan. at 344-52. Samsel II followed Kansas Malpractice Victims Coalition on this point, Samsel II, 246 Kan. at 351-62; and Kansas Malpractice Victims Coalition, in turn, relied on Manzanares, saying fhat Manzan-ares “found, in substance, that the injured person entitled to benefits under the statute received a sufficient quid pro quo for the limitation placed on his right to a jury trial.” Kansas Malpractice Victims Coalition, 243 Kan. at 344. In none of these three cases, however, did this court see fit to explain how or why the quid pro quo test, a due process-based rule originally relating to whether legislation impairs a vested right, can excuse legislation’s impairment of a constitutional right to jury trial.
Moreover, it appears that the initial reliance Kansas Malpractice Victims Coalition placed on Manzanares in order to apply quid pro quo arose out of a misreading. Nowhere in Manzanares’ one-paragraph discussion of the right to jury trial claim before it did this court “require that the legislature provide an adequate substitute of the right to trial by jury[.]” Note, Testing the Constitutionality of Tort Reform with a Quid Pro Quo Analysis: Is Kansas’ Judicial Approach an Adequate Substitute for a More Traditional Constitutional Requirement?, 31 Washburn L.J. 314, 332 (1992).
Today s majority, perhaps feeling the Manzanares sand shift beneath its feet, attempts to bolster its position by reaching still farther back to Shade v. Cement Co., 93 Kan. 257, 144 P. 249 (1914), for support.
*710Shade involved multiple constitutional challenges to the original workers compensation law. The claims were based on federal due process and equal protection, and on the Kansas Constitution Bill of Rights’ Section 5 right to jury trial and Section 18 right to remedy. Shade, 93 Kan. at 258-59. Shade’s notable pithy rationale for rejecting these claims lumps the state constitutional theories together; and the only thing it makes clear is the determinative weight given to the elective nature of the original workers compensation system.
“The objection based upon the supposed deprivation of a right of trial by jury is equally untenable, as determined in many adjudicated cases. The same is true of the arbitration feature and the rules for determining compensation. Without reviewing seriatim all the specific objections made to this statute under the general charge that it violates constitutional safeguards, it is sufficient to say that they have all been met in judicial decisions in other jurisdictions after the most thorough and patient examination. . . . Briefly, it may be said that die operation of the system of compensation provided by the statute rests upon die free consent of employer and employee, given in the manner provided by the act. Without such consent on his part the employee retains all his remedies under common and statutory law. It is a matter of election.” 93 Kan. at 260 (citing Matheson v. Minneapolis St. Ry. Co., 148 N.W. 71 [Minn. 1914] [election to be subject to system constitutes waiver of jury trial]; Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 N.E. 211 [1914] [same]).
In my view, today’s majority takes this passage in Shade and stretches it well beyond its breaking point, contending it applied the quid pro quo test to reject the Section 5 challenge. This is inaccurate, as we have previously recognized in multiple cases. See Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 279, 65 P.2d 284 (1937) (quoting Shade, 93 Kan. at 259-60; emphasizing workers compensation system “ ‘rests upon the free consent of the employer and employee’ ”; thus “the liability of an employer to his employee under the act is a liability arising on contract”); Potocan v. Hamilton Coal & Mercantile Co., 120 Kan. 326, 329, 243 P. 537 (1926) (citing Shade, 93 Kan. 257, for proposition workers compensation act subject to no constitutional infirmity because not compulsoiy); Smith v. Packing Co., 115 Kan. 874, 875, 225 P. 110 (1924) (citing Shade, 93 Kan. at 260; “[Qjuestions as to whether various features of a workmen’s compensation act were violative of *711the Fourteenth Amendment have frequently been disposed of by reference to the fact that its application was made optional.”).
Our Court of Appeals, the United States Supreme Court, the Missouri appellate courts, and commentators also would be surprised by what today’s majority professes to find in Shade. See Boyd v. Barton Transfer & Storage, 2 Kan. App. 2d 425, 429, 580 P.2d 1366 (1978) (in first case to consider Shade since workers compensation system made mandatory, court cites Shade among cases upholding earlier system “against constitutional challenges on the ground that it was optional with the employer and employee”); Middleton v. Texas Power & Light Co., 249 U.S. 152, 160, 395 S. Ct. 227, 63 L. Ed. 527 (1919) (citing Shade for upholding act because voluntary); Mosely v. Empire Gas & Fuel Co., 313 Mo. 225, 233-34, 281 S.W. 762 (1926) (same); Harbis v. Cudahy Packing Co., 211 Mo. App. 188, 191, 241 S.W. 960 (1921) (quoting Shade, 93 Kan. at 260; observing “Kansas courts have held that the relation between employer and employee” under workers compensation law “is contractual”); Phillips, The Constitutional Right to a Remedy, 78 N.Y.U. L. Rev. 1309, 1330 n.92 (2003) (citing Shade, 93 Kan. 257; “Decisions to uphold the statutes frequently were based on the fact that the employee or employer, or both, had the ability to opt out of the scheme.”); Comment, Workers’ Compensation Benefits Go From Bad to Worse: The Kansas Supreme Court Eliminates the Parallel Injury Rule, 48 Washburn L.J. 705, 710 n.42 (2009) (describing Shade as upholding original workers compensation law on ground that employers, employees consented to coverage).
Even weaker is the majority’s assertion that Rajala v. Doresky, 233 Kan. 440, 661 P.2d 1251 (1983), “explicitly” applied the quid pro quo test in considering a right to jury trial challenge. The only issue in Rajala was whether the workers compensation law’s abrogation of fellow-employee liability violated the Section 18 right to remedy provision. Rajala, 233 Kan. at 441-42. Likewise, the majority’s citation of Injured Workers of Kansas v. Franklin, 262 Kan. 840, 942 P.2d 591 (1997), and Scott v. Hughes, 294 Kan. 403, 275 P.3d 890 (2012), for their discussion of the exchanges of rights and remedies between employers and employees inherent in the *712Kansas workers compensation scheme cannot help it. These cases did not have anything to do with a jury trial challenge to the scheme. Thus neither suggests, let alone stands for, the proposition that the quid pro quo test can be applied to rescue a statute from its violation of Section 5.
To summarize, none of the cases the majority forwards as controlling precedent for using the quid pro quo test to excuse K.S.A. 60-19a02’s impairment of plaintiff Miller’s right to juiy trial withstands examination. Manzanares, Kansas Malpractice Victims Coalition, and Samsel II give no explanation, much less an analytically sound one, of why the due process-based concept should be imported from Section 18. Furthermore, the majority’s efforts to press Shade and Rajala into service as substitutes for Manzanares, Kansas Malpractice Victims Coalition, and Samsel II are singularly unconvincing. Shade relied on an entirely different rationale to reject the jury trial and the other state constitutional challenge to the original workers compensation system before the court. Rajala did not involve any jury trial challenge at all. Under these circumstances, I can say I am clearly convinced that the majority’s application of the quid pro quo test to Section 5 was originally erroneous and remains so.
I now move to my criticism of the majority’s conclusion that we must nevertheless maintain this erroneous rule because of our inability to cope with the consequence of its abandonment.
Cost-benefit Examination
Yet another weakness in the majority’s decision is its failure to engage in the comprehensive cost-benefit examination that Rhoten requires as the final step when we contemplate whether to keep or to jettison originally erroneous precedent. See Rhoten, 290 Kan. at 112. The parade of horribles it trots out, apparently as costs, is insubstantial and unconvincing, and the majority does not account properly for significant benefits.
Leading the parade of horribles is tire majority’s assertion that overruling our past application of the quid pro quo test to excuse violation of the right to jury trial would require dismantling of the workers compensation and no-fault automobile insurance systems. *713See Rajala, 233 Kan. at 440 (workers compensation); Manzanares, 214 Kan. at 589 (no-fault). I do not believe this is true for several reasons.
First, as discussed above, Rajala was a Section 18 decision that did not address the right to jury trial in any way. See Rajala, 233 Kan. at 441. Nothing about refusal to apply the quid pro quo test to save a statute impairing the right to jury trial has any bearing on Rajala’s Section 18 holding.
Second, the comprehensive workers compensation system at issue in Rajala is totally distinct from the noneconomic damages cap applied to reduce plaintiff Miller’s damages in this case. Miller’s common-law cause of action for medical malpractice as it existed in 1859 was not wholly replaced widi a comprehensive statutory scheme of compensation not employing jury trials at all. Far from it. Miller and all personal injury plaintiffs in Kansas are still required to file civil lawsuits; conduct necessary discovery; obtain required expert testimony; and prove negligence, causation, and damages to a jury by a preponderance of the evidence. The only thing changed by K.S.A. 60-19a02 is whether the district court judge can give effect to the jury’s discharge of its constitutional assignment. In the workers compensation arena, although recoveries are fixed, they are directly proportional to the nature and extent of each claimant’s injury and income. In addition, distinct Section 18 jurisprudence permitted wholesale abolition and replacement of a common-law cause of action because both sides received clear and comparable benefits from the legislative transaction. The new administrative system of no-fault compensation for injured workers left no common-law cause of action upon which Section 5’s jury trial right could act. See Watts, 2012 WL 3101657, at *7 (constitutional right to jury trial contingent upon existence of civil action for damages). The cap at issue in this action did nothing of the sort, and its rejection on Section 5 grounds would not cause the collapse of the workers compensation system, much less make it inevitable or imminent.
Much of the same can be said of the no-fault automobile insurance system. It is markedly distinct from the damages cap at issue here. In order to receive prompt personal injury protection pay*714ments after a car accident, an injured person no longer needs to file a lawsuit to prove another’s fault and the causal relationship between that fault and damages. Rather, the personal injury protection claimant simply submits a claim to the insurance company. The third-party common-law cause of action for those suffering relatively minor injury was replaced with a first-party insurance contract claim. As with workers compensation, the no-fault automobile insurance system means that every claimant’s opportunity to recover is directly proportional to the seriousness of his or her case.
In short, all of the performers in the parade labor under a fallacy of relevance.
On the benefit side, the majority claims that following Kansas Malpractice Victims Coalition and Samsel II by applying the quid pro quo test to rescue K.S.A. 60-19a02 from invalidity under Section 5 fosters certainty. In fact, it does exacdy the opposite.
Uncertainty is created when error is compounded by blind adherence to precedent that is analytically unsound. Certainty, predictability, stability, and respect for the rule of law are enhanced when this court does what it has otherwise insisted upon doing in eveiy other case calling a legislative act into constitutional question. This is what every Kansan expects of us, and properly so. “We do more damage to tire rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision.” Johnson Controls, Inc. v. Employers Ins. of Wausau, 264 Wis. 2d 60, 121, 665 N.W.2d 257 (2003). That is why “[i]t is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations.” Barden v. Northern Pacific Railroad, 154 U.S. 288, 322, 14 S. Ct. 1030, 38 L. Ed. 992 (1894); see also Watts, 2012 WL 3101657, at *10 (“ [deviations from clear constitutional commands—although longstanding—do not promote respect for the rule of law”) (quoting Independence-Nat. v. Independence School, 223 S.W.3d 131, 137 [Mo. 2007]).
The majority’s final move in support of its application of the quid pro quo test to plaintiff Miller’s jury trial challenge is its declaration that it simply “seems logical” and “makes sense” to forgive im*715pairment of the inviolate individual right to jury trial under the same standard that governs Section 18 right to remedy.
In fact, there is no logic or common sense to support this aspect of the majority’s opinion. The Section 5 right to jury trial is distinct in every conceivable dimension from the Section 18 due process-based right to remedy. They share no language; the majority points to no shared drafting rationale. Indeed, the rights’ placement in separate sections of the Bill of Rights makes it clear that they articulate different concepts aimed to achieve different purposes, and thus merit unique analyses. The majority cites not a single case in which this court or any other has ever excused violation of one obviously nonidentical constitutional right because tire statute in question did not happen to violate another constitutional right. It has not done so because there are no such cases.
Why does the majority depart so radically from its usual patterns of analysis? One reason appears to be its doubt that legislators can comprehend anything more complicated. It states: “[T]he quid pro quo model readily allows the legislature to understand that it must provide an adequate and viable substitute when modifying a common-law juiy trial right under Section 5 or right to remedy under Section 18.” This is mere condescension. I am willing to trust that legislators (and the Kansans they represent) can understand that Bill of Rights provisions with different language placed by the people in different sections of our Constitution are interpreted and applied differently.
Conclusion
As a court of last resort, we are “the sole arbiter of the question whether an act of the legislature is invalid under the Constitution of Kansas. However delicate that duty may be, we are not at liberty to surrender, or to ignore, or to waive it. [Citation omitted.]” Harris, 192 Kan. at 207. We must therefore be especially careful not to extend a doubtful precedent where the result is to “to weaken or subvert” a fundamental constitutional right, Dimick v. Schiedt, 293 U.S. 474, 485, 55 S. Ct. 296, 79 L. Ed. 603 (1935), and cannot hide behind stare decisis to abdicate “our duty to reconsider constitutional interpretations that ‘depar[t] from á proper understand*716ing’ of the Constitution. [Citations omitted.]” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 954, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (Rehnquist, J., concurring in judgment in part and dissenting in part). Our allegiance is always to the Constitution itself, not to our caselaw. As the Missouri Supreme Court did recently in its Watts case, we should demonstrate that allegiance by admitting the error in our precedent applying the quid pro quo test to a Section 5 jury trial challenge. See Watts, 2012 WL 3101657, at *11 (overruling Adams v. Childrens Mercy Hosp., 832 S.W.2d 898 [Mo. 1992]; striking down damages cap for violating right to jury trial). I therefore dissent from the majority’s decision upholding K.S.A. 60-19a02 under Section 5. The statute’s cap on noneconomic damages violates plaintiff Miller’s right to jury trial. Even if I accepted that Section 18’s quid pro quo test is met, which, as discussed in the next section, I do not, tire test cannot excuse impairment of this inviolate, individual constitutional right.
Right to Remedy
The majority holds that the K.S.A. 60-19a02 cap on nonecon-omic damages does not violate the right to remedy provision of Section 18 because it survives the two-part quid pro quo test. Although I agree that the quid pro quo test applies to Section 18 claims, I disagree that the test is met in this case. I also would invalidate the cap under Section 18.
Under the quid pro quo test, if a statute abolishes or restricts a remedy protected by Section 18, it is unconstitutional unless (1) the modification was reasonably necessary in the public interest to promote the general welfare of the people of the state; and (2) the legislature has provided an adequate substitute remedy for the right that has been abolished or limited. Lemuz v. Fieser, 261 Kan. 936, 946-47, 933 P.2d 134 (1997); Bonin v. Vannaman, 261 Kan. 199, 217, 929 P.2d 754 (1996).
I agree with the majority’s rejection of the defense argument that Sarnsel IPs “fictitious” quid pro quo—the statute’s purely imaginary restriction of district court judges’ power to reduce a noneconomic damages award greater than $250,000 to less than *717$250,000—controls. See Samsel II, 246 Kan. at 367 (Herd, J., dissenting). A fresh look at the quid pro quo test is required.
That fresh look begins with the threshold question: Does the cap impair a remedy protected by Section 18? The majority admits early that Section 18 is designed to ensure an injured plaintiff is made “whole.” See PIK Civ. 4th 171.02 (jury instructed to establish noneconomic damages at “amount that will fairly and adequately compensate the plaintiff’). But for reasons undisclosed, the majority is squeamish about declaring that the cap impairs the right to remedy. Instead, it says the cap “is subject to Section 18’s protections” and that it “implicate[s] the right secured by Section 18,” burying the lede by placing it in a parenthetical appended to a Kansas Malpractice Victims Coalition citation. I would start with a clear statement that the right to remedy is infringed by the cap on noneconomic loss. See Kansas Malpractice Victims Coalition, 243 Kan. at 350.
Having established the answer to the threshold question, I agree that we must move to the first part of the quid pro quo test, which demands that the cap be reasonably necessary in the public interest to promote the general welfare of the people of the state. This poses an obstacle similar, if not identical, to the rational basis standard familiar from equal protection analysis. Injured Workers of Kansas, 262 Kan. at 881 (quoting Lemuz, 261 Kan. at 948); Bonin, 261 Kan. at 218 (same). Rational basis imposes “ ‘two substantive limitations on legislative choice: legislative enactments must implicate legitimate goals, and the means chosen by the legislature must bear a rational relationship to those goals.’ ” Stephenson v. Sugar Creek Packing, 250 Kan. 768, 775, 830 P.2d 41 (1992) (quoting Lyng v. Automobile Workers, 485 U.S. 360, 375, 108 S. Ct. 1184, 99 L. Ed. 2d 380 [1988] [Marshall, J., dissenting]).
The plaintiff and her supporters have argued that the first part of the quid pro-quo test cannot be met, because the medical malpractice insurance and liability insurance “crises” that eventually gave rise to the cap at issue here were nonexistent. For purposes of the extremely forgiving rational basis analysis of plaintiff Miller’s as-applied challenge, any conceivable rational basis is sufficient. If the legislature’s goal is worthy, as certainly access to affordable *718malpractice insurance and health care undoubtedly is, then merely a logical possibility that the legislature’s action will help to achieve the goal is enough. See, e.g., Barrett v. U.S.D. No. 259, 272 Kan. 250, 256-57, 32 P.3d 1156 (2001) (application of recreational use exception under Kansas Torts Claims Act to coaching negligence cases in public schools passes rational basis test; distinguishing between injuries occurring on public versus nonpublic recreational property reasonably advances legitimate goal of encouraging development of public recreational property); Chiles v. State, 254 Kan. 888, 869 P.2d 707 (1994) (limited retroactivity provision of Sentencing Guidelines Act, distinguishing inmates convicted of more serious offenses from those with less serious convictions, rationally related to legitimate objective of reducing prison population, maintaining public safety); see also State ex rel. Tomaste v. Unified Gov't of Wyandotte County/Kansas City, 265 Kan. 779, 791-93, 962 P.2d 543 (1998) (inclusion of auto racetrack facility in definition of “major tourism area” bears rational relationship to furtherance of economic development of the state). The provisions of the HCPIAA, as amended, assert at least some control over malpractice insurance rates, and may encourage certain health care providers to settle or remain in Kansas. I therefore agree with the majority that the first part of the quid pro quo test is met in this case. But see Ferdon v. Wisconsin Patients Comp. Fund, 284 Wis. 2d 573, 629-30, 701 N.W.2d 440 (2005) (after 10 years’ experience, holding cap violates equal protection because rational basis touted by proponents unsupported); Plank v. Community Hospitals of Indiana, Inc., 956 N.E.2d 731, 736-37 (Ind. App. 2011) (case remanded to trial court to allow plaintiff evidentiary hearing on whether cap still bears rational relationship to legitimate government interest) vacated on transfer to Indiana Supreme Court, 963 N.E.2d 1120 (Ind. 2012).
I cannot likewise join the majority’s further holding on the second step of the quid pro quo test. K.S.A. 60-19a02 and other malpractice law reforms did not provide an adequate substitute remedy for the cap’s modification of plaintiff Miller’s right to remedy under Section 18.
*719I begin with the question plaintiff Miller has squarely raised: Can the adequate substitute remedy requirement be satisfied with benefits that accrue to society in general or must there be an individual quid, i.e., a direct benefit to each person in the class forced to surrender a remedy? Again, I do not see a clear answer to this question in the majority’s opinion. I would provide one today, because our earlier caselaw on this point has been inconsistent.
Many of our precedents suggest that a substitute remedy must provide a direct benefit to individuals. See, e.g., Injured Workers of Kansas, 262 Kan. at 883 (“when the legislature abolished the employees’ common-law right to sue employers for injuries, the legislature provided employees with an adequate substitute remedy”); Samsel II, 246 Kan. at 358-62 (describing substitute remedy as “quid pro quo to the individual”); Manzanares, 214 Kan. at 596-97, 599-600 (mandatory first-party insurance benefits providing motor vehicle accident victim with system of “prompt, efficient payment” of medical expenses, lost wages, other economic losses without proof of fault constitutes adequate exchange for impairment of Section 18 remedy); Hanson v. Krehbiel, 68 Kan. 670, Syl. ¶¶ 1, 3, 674, 75 P. 1041 (1904) (right to remedy affords “one injured in his reputation . . . opportunity to show the extent of his injury”; statute specifying reparation “the same in all cases,” bearing “no relation to the injury suffered,” insufficient).
In contrast to the language used in these cases, our decision in Lemuz relied on a combination of individual and societal benefits to hold that there was an adequate substitute remedy. 261 Kan. at 959. We said that the plaintiffs would “personally receive the benefit” of the mandatory primaiy medical malpractice insurance and guaranteed excess coverage and “[f]urther, all plaintiffs will generally receive the benefit of the supplemental quid pro quo—risk management requirements that protect patients from incompetent doctors.” 261 Kan. at 959. And, in Bonin we relied solely on the societal benefit of health care access to hold that the substitute remedy was adequate. 261 Kan. at 219.
I would hold today that an adequate substitute remedy is one that provides an individual benefit to each person in the class of plaintiffs whose constitutional right to remedy is impaired. Section *72018 protects an individual right—the right of every person to the remedies that existed at common law for injuries to his or her person, property, or reputation. See Noel v. Menninger Foundation, 175 Kan. 751, 763, 267 P.2d 934 (1954) (Section 18 guarantees “every person a remedy by due course of law for injury done him in person or property.”).
The requirement of an individual quid also is imperative because the first step of the Section 18 quid pro quo test focuses only on the public necessity for the legislation. Standing alone, it provides no protection for the individual right at stake. It is only the second step of the test that ensures tire right to remedy cannot be “wholly sacrificed to the popular will.” Note, Restrictive Medical Malpractice Compensation Schemes: A Constitutional “Quid Fro Quo” Analysis to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143, 201 (1981); see also Bair v. Peck, 248 Kan. 824, 845, 811 P.2d 1176 (1991) (Herd, J., dissenting) (if requirement of substitute remedy ignored, “[o]ur written constitution loses its meaning and affords no barrier to the enactment of unjust laws resulting from transitory public pressures of the moment”). If some amorphous or even illusory public good is enough to satisfy the second step, then it effectively dissolves into the first. Retention of the distinct vitality of both the “minimum rationality” step and the adequate substitute step balances the legislature’s freedom to modify “common-law tort remedies to accommodate the exigencies of contemporary society” and “meaningful protection” for the individual’s right to remedy. 18 Harv. J. on Legis. at 200-01.
We implicitly recognized this necessity in Lemuz, when we held that the adequate substitute remedy requirement imposes an additional and more stringent limitation than rational basis. 261 Kan. at 948; see also Kansas Malpractice Victims Coalition, 243 Kan. at 350 (rejecting argument that “removal of a remedy can be justified any time by public need”); Comment, The Kansas Remedy by Due Course of Law Provision: Defining a Right to a Remedy, 47 U. Kan. L. Rev. 655, 675, 677, 679 (1999) (substitute remedy step must require that “the quid pro quo . . . directly benefit those affected rather than simply benefitting the general welfare of society”; if public-welfare benefit satisfies both steps of Section 18 *721analysis, “the quid pro quo fades into the state’s general police power—the legitimate government end becomes the quid pro quo”).
Several of our sister states also have recognized that societal benefits cannot satisfy the substitute remedy requirement. See Smith v. Department of Ins., 507 So. 2d 1080, 1087-89 (Fla. 1987) (argument that cap intended to assure affordable, available insurance to all “fails to recognize that we are dealing with a constitutional right which may not be restricted simply because the legislature deems it rational to do so”); Lucas v. United States, 757 S.W.2d 687, 690 (Tex. 1988) (societal quid pro quo not valid factor in assessing whether adequate substitute has been provided for restriction on right to remedy; “alleged benefits to society generally,” such as lower insurance premiums, lower medical costs for all, do not provide quid pro quo); compare Wright v. Central Du Page Hosp. Assn, 63 Ill. 2d 313, 328, 347 N.E.2d 736 (1976) (maximum cap on damages violates constitutional provision on special legislation; societal benefits do not provide adequate substitute).
Today’s majority, having failed to establish a clear baseline on the necessary direct and individual nature of a substitute for the Section 18 right to remedy, holds that the mandatory minimum primary and excess malpractice insurance coverage provisions of the HCPIAA meet the second part of the quid pro quo test. In the majority’s view, because a judgment that cannot be collected is worthless, the mere prospect or availability of some source of recovery provides medical malpractice plaintiffs such as Miller a benefit that other tort victims do not have. I disagree. HCPIAA’s insurance requirements do not qualify as a substitute remedy at all, and definitely not an adequate one.
A “remedy” is a judicial means or method for enforcing a right or redressing a wrong. Neely v. St. Francis Hospital & School of Nursing, 192 Kan. 716, 720-21, 391 P.2d 155 (1964). As we said in Noel v. Menninger Foundation:
“The constitutional provision guaranteeing to every person a remedy by due course of law for injury done him in person or property means that for such wrongs that are recognized by the law of the land the court shall be open and afford a remedy, or that laws shall be enacted giving a certain remedy for all injuries or *722wrongs. ‘Remedy by due course of law,’ so used, means the reparation for injury ordered by a tribunal having jurisdiction in due course of procedure after a fair hearing. It is the primary duty of the courts to safeguard die declaration of right and remedy guaranteed by die constitutional provision insuring a remedy for all injuries.’ [Citation omitted.]” Noel, 175 Kan. at 762-63.
And Kansans’ broad right to remedy under Section 18 includes many aspects of the judicial process. See, e.g., Lemuz, 261 Kan. at 946 (abrogation of corporate negligence doctrine preventing plaintiffs from seeking remedy against hospitals for breach of a duty owed under common law implicates Section 18); Bonin, 261 Kan. at 214 (statute of repose abrogating minor’s right of action for injuries before their discovery implicates Section 18); Bair, 248 Kan. at 838 (statute eliminating vicarious liability of health care provider for negligent acts of another when both providers covered by Fund impairs right to remedy under Section 18); Kansas Malpractice Victims Coalition, 243 Kan. at 352 (requirement of annuity contract purchase for payment of award for future economic damages violates right to remedy); Ernest v. Faler, 237 Kan. 125, 134, 697 P.2d 870 (1985) (notice of claim statute barring right to suit for negligent injuries caused by pesticide application denies remedy in courts to injured person); Rajóla v. Doresky, 233 Kan. 440, 441, 661 P.2d 1251 (1983) (workers compensation law implicates Section 18 by removing certain common-law remedies for injured employees, including right of action against fellow employees); Neely, 192 Kan. at 723 (statute exempting assets of certain charitable institutions from attachment, garnishments, executions, other process for enforcing judgments violates Section 18). Section 18 also covers full reparation for injuries to person, reputation, or property. Kansas Malpractice Victims Coalition, 243 Kan. at 349 (all injuries, not just a few) (citing Neely, 192 Kan. at 722-23); see also Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974) (Section 18 includes right to recover noneconomic losses); Hanson, 68 Kan. at 677 (same).
Mere access to a source of recovery is not a remedy within the meaning of Section 18. Kansas Malpractice Victims Coalition, 243 Kan. at 351. This is a rule of long standing. In 1904’s Hanson v. Krehbiel, where we held that a statutorily required published re*723fraction was not a substitute remedy for foe right to recover no-neconomic damages for libel, we said:
“The right to a remedy by due course of law is not satisfied by the requirement contained in a statute to make specific reparation for the injury done, which reparation is the same in all cases, and bears no relation to the injury suffered, and has not been decreed by a tribunal after ascertainment of the extent of such injury.” 68 Kan. 670, Syl. ¶ 3.
Despite this, foe majority asserts that Bair and Lemuz, as well as workers compensation and no-fault automobile insurance case-law, support its adequate substitute remedy holding. Again, I am not persuaded by this invocation of precedent.
Bair involved a statute that eliminated vicarious liability of one health care provider for foe acts of another when both are covered by foe Fund. Bair, 248 Kan. at 828. Eliminating vicarious liability affected only foe right to pursue a secondarily hable party for a single tortfeasor s injury-causing negligence and would come into play only if the tortfeasor employee was financially unable to pay foe damages. This context of duplicative insurance coverage essentially made foe employer s liability of little consequence; either way, a plaintiff would have only one source of recovery. Even assuming that, in conflict with Hanson, a source of recovery could qualify as a remedy, Bairs holding that HCPIAA’s mandatory insurance provisions qualified as an adequate substitute remedy was unnecessary, because foe statute took no source of recovery away.
Lemuz involved a statute that granted medical care facilities immunity from corporate negligence claims. It never actually wrestled with foe question of whether access to a source of recovery can qualify as a substitute remedy, because foe plaintiff accepted that the mandatory insurance provisions provided such a remedy, arguing only that statutory amendments reducing foe amount of primary and excess coverage from unlimited coverage to $3.2 million, as addressed in Bair, and then to $300,000 made foe remedy inadequate. 261 Kan. at 951-56.
With regard to our workers compensation and no-fault automobile insurance cases, again, both systems provide genuine, wholesale replacement compensation mechanisms in exchange for foe loss of the common-law right to remedy involved. See Man-*724zanares, 214 Kan. at 596-99. The workers compensation claimant does not have to prove that his or her work-related injury was caused by the employer’s negligence, and an administrative claims procedure has been substituted for the burdens of a traditional personal injury lawsuit. The personal injury protection claimant in a no-fault automobile insurance matter simply submits a claim to the insurance company, rather than filing a lawsuit to prove that a tortfeasor caused the injury. The HCPIAA does not provide a medical malpractice plaintiff such as Miller with anything remotely similar to what the workers compensation and no-fault automobile insurance systems provide. She has been relieved of none of the burdens of traditional litigation of her claim, only of her ability to recover all of her damages. Her route to compensation has been made no more straight, no more level. Today a medical malpractice action must be prosecuted exactly as it was when our Kansas Constitution first guaranteed citizens a right to remedy.
This brings me to the adequacy question. Even if I were to assume that the majority’s “available source of recovery” qualified as a substitute remedy less fanciful than Samsel IFs floor under judicial remittitur, every individual plaintiff who is successful at trial still runs the risk that the mandatory coverages will be wholly or partially unavailable to pay a judgment because other claims during the policy period have already exhausted them. The shrinking mandatory limits have no doubt exacerbated this problem. The less skilled and careful a provider, the more likely there will be multiple lawsuits, and the more likely any individual plaintiff will get absolutely nothing in exchange for his or her Section 18 right to be made whole. The money will already have gone to those who won the race to the courthouse. Although I am sure that the members of our legislature did not intend to make Kansas a haven for incompetent and/or insolvent providers, the majority’s protective approach may mean that the legislature has done exactly that.
Another serious adequacy issue is the inverse proportion between the cap and sinldng mandatory insurance minimums on the one hand and the seriousness of a plaintiff s injuries on the other. As long as the cap remains in place, we know with absolute certainty tlrat no plaintiff, no matter how grievously injured, will ever *725be finally awarded more than $250,000 in noneconomic damages. It is also therefore beyond question that the most seriously injured plaintiff is likely to be most insufficiently compensated by a system with a K.S.A. 60-19a02 cap. He or she is more likely to be awarded noneconomic damages in excess of $250,000, bringing the cap into play to take away a larger percentage of any larger jury award. In addition, such a malpractice victim also is likely to have the highest economic damages because of greater medical and rehabilitation or life care expenses. The youth of a victim also can increase these damages amounts exponentially. See Ferdon, 284 Wis. 2d at 625. The higher these victims’ economic damages, the more likely it is that the mandatory insurance coverages will be completely depleted before they see a dime of noneconomic recovery. It is dramatically unfair to place the burden of supporting the state’s medical care industry solely upon those most severely injured by a provider. See Carson v. Maurer, 120 N.H. 925, 941, 424 A.2d 825 (1980); see also Brannigan v. Usitalo, 134 N.H. 50, 57-58, 587 A.2d 1232 (1991) (increase in amount of cap increases unfairness of burden on few most badly injured). The inverse proportion of seriousness of injury/damages to likelihood of recovery inherent in the cap and the mandatory insurance minimums stands in stark contrast to the genuinely adequate substitute remedies the legislature fashioned in the workers compensation and no-fault automobile insurance arenas.
Given die criticisms I have already detailed, I do not address plaintiffs argument that the amount of the cap, even if adequate at the time of its passage, has been driven down to an unconstitutional level of purchasing power by inflation. I note only that the majority provides little cover for the defense position on this point. Indeed, the majority strongly suggests that future legislative refusal to adjust the amount of the cap for inflation endangers today’s adequacy ruling.
Conclusion
For all of these reasons, I would hold that the legislature has failed to provide any substitute remedy—much less an adequate *726one—in exchange for its elimination of plaintiff Miller s right to her award of noneconomic damages greater than $250,000.
One final point bears mention. The majority’s use of mandatory medical malpractice insurance and its illusory enhanced source of some recovery as the adequate substitute remedy to satisfy the second part of the quid pro quo test it applies to both Section 5 and Section 18 leaves open the question whether the K.S.A. 60-19a02 cap can survive scrutiny under those provisions when applied to other personal injury plaintiffs. Plaintiff Miller has conceded that she cannot mount a facial challenge to the cap if her as-applied-to-her challenge fails to persuade a majority of this court. See Cross v. Kansas Dept. of Revenue, 279 Kan. 501, 507-08, 110 P.3d 438 (2005). This is exactly what has come to pass. Thus the reach of the majority’s holding and rationale is limited to the malpractice setting, and our unanimous desertion of Samsel IFs only rationale to support upholding the cap in other personal injury cases means it is vulnerable to a renewed attack. This is another reason why I regard the majority’s uncomfortable contortions to reach the outcome it reaches here as far too high a price to pay.
Equal Protection
Plaintiff Miller’s initial equal protection argument centers on our level of review. She asserts that the fundamental rights at issue mean the legislature’s interference with them demands strict scrutiny.
Miller relies on a line of cases in which we describe the right to trial by jury and the right to remedy as fundamental rights. See Ernest, 237 Kan. at 132 (“[T]he right of a person injured by the tortious act of another to a remedy for his injuries is one of the basic constitutional rights guaranteed protection by the Kansas courts.”); Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995 (1965) (right to jury trial “a basic and fundamental feature of American jurisprudence”); Noel, 175 Kan. at 763 (“It is the primary duty of the courts to safeguard the declaration of right and remedy guaranteed by the constitutional provision insuring a remedy for all injuries.”); Hasty v. Pierpont, 146 Kan. 517, 521, 72 P.2d 69 (1937) (quoting Parsons v. Bedford, 28 U.S. 433, 446, 7 L. *727Ed. 732 [1830]) (by securing right to trial by jury in civil cases in Bill of Rights, framers “ ‘established] its importance as a fundamental guarantee of the rights and liberties of the people’ ”).
I believe Miller’s strict scrutiny argument worthy of greater consideration than the majority gives it here, although I reserve ultimate judgment on its merit. We have never provided a reasoned explanation for how and why either of these two significant and fundamental constitutional rights should be subject to only the minimal level of protection afforded by the rational basis test. See Neily, No Such Thing: Litigating Under the Rational Basis Test, 1 NYU J. L. & Liberty 898, 909 (2005) (criticizing “yawning chasm” between United States Supreme Court rhetoric referring to occupational freedom as constitutional right, Court holdings that no longer provide any meaningful protection for that right; legislators permitted to trample right “with near total impunity”).
Because I would hold that K.S.A. 60-19a02’s cap on nonecon-omic damages violates the right to jury trial and the right to remedy, I do not further pursue this issue today. See Rotunda and Nowak, 4 Treatise on Const. Law - Substance and Procedure, § 18.40 (4th ed. 2008) (if statute violates enumerated constitutional right, generally no need to resort to equal protection analysis; substantive guarantees of constitutional right serve as its strongest protection against limitation).
Johnson, J., joins in the foregoing concurring and dissenting opinion.* *