SEVENTH AMENDMENT STUCK IN 18TH CENTURY

January 21, 2002

By Steven P. Garmisa
Hoey Farina & Downes
sgarmisa@felahfd.com

Frozen in time, the test for whether there is a right to trial by jury under the 7th Amendment focuses exclusively on whether a jury trial would have been available (for the modern cause of action) if it had been tried in English courts in 1791, when the amendment became effective.

"In suits at common law, where the value in controversy shall exceed twenty dollars," the 7th Amendment proclaims, "the right of trial by jury shall be preserved."

The historical test was first enunciated more than 20 years after the 7th Amendment went into effect, in a decision by U.S. Supreme Court Justice Joseph Story, while on circuit. U.S. v. Wonson, 28 F.Cir. 745 (C.C.D. Mass. 1812).

Looking at the historical record, Matthew P. Herrington, an assistant dean at George Washington University Law School, finds no support for Story's story about the intent of the 7th Amendment. Herrington's article, "The Economic Origins of the Seventh Amendment" (set for publication in the Iowa Law Review), can be downloaded from the Social Science Research Network Electronic Paper Collection.

According to Herrington, "[T]he historical test is entirely without warrant in the historical record. In fact, there is no evidence that the Framers of the Seventh Amendment intended to 'preserve' for all time the right to jury trial as it existed in England in 1791. Indeed, there is no evidence that the Framers of the Seventh Amendment ever agreed on a substantive rule at all."

The history of the battle for the 7th Amendment is fascinating. "In the 18th century," Herrington explains, "juries had the power not just to find fact, but to say what the law should be. This meant juries were empowered to not only declare 'what happened,' but what rules of law should apply. In the years leading to the American Revolution, the jury's ability to say what the law should be was looked upon as a sure defense against royal oppression. English and American juries repeatedly stood as a barrier to arbitrary rule by the Crown."

To avoid American juries, the King set up admiralty courts, when the same cases would have been tried to juries back in England. After the Revolution, with fresh memories of attempts to short-circuit the right to jury trial, anti- federalists fought the proposed constitution as failing to protect this sacred right.

At the same time, serious concerns grew over whether the new country could attract foreign investors, and engage in foreign trade, if foreign business interests faced the prospect of losing legitimate claims before American juries.

"After the Revolution," Herrington says, "unrestrained juries created serious obstacles to the new nation's commercial and economic development. Using their law-finding function, confederation-era juries often upset long-held commercial expectations by refusing to bring in verdicts in favor of British creditors in debt cases or by condemning property owned by allies in numerous prize cases during the Revolutionary War."

While anti-federalists (and some federalists) were concerned that the new Constitution permitted the federal government to undermine continuing use of juries as a powerful weapon against government oppression, business interests feared that unrestrained juries would undermine the economic welfare of the new nation.

The 7th Amendment, according to Herrington, "was itself the result of a long process of conflict and compromise. Rather than representing a consensus on the scope of the right to a jury trial, the Seventh Amendment was really the climax of the long struggle over the right of the jury to find both law and fact in civil cases, and was designed to achieve a compromise between those who believed that the jury should have unfettered power to decide both law and fact and those who sought to allow judges to impose some limits on the jury's power to decide the whole of the case."

Instead of intending to create permanent substantive rules for when jury trials should be available, Herrington argues, "it is far more likely that the Seventh Amendment was precatory in nature, designed to enshrine a commitment to general principles in the constitutional text, without codifying a black-letter rule setting forth when juries would be required in particular cases."

The right to jury trial varied from state to state. In Pennsylvania, for example, the right to trial by jury included equity cases. There is no evidence, Herrington says, that the Seventh Amendment was intended to permanently preserve any particular state's jury procedures (let alone jury practices in England in 1791).

"Consequently," Herrington argues, "the Supreme Court's reliance on the historical test has become an unnecessary impediment to the implementation of the Seventh Amendment's jury trial guarantee. ... Although the amendment was designed to enshrine a commitment to the principle of trial by jury in civil cases, it did not define the scope of the right.

"The most that could be said of the amendment is that it was intended to ensure that the people would be adequately represented in all branches of their government. It was also designed to commit the courts of the new Republic to respect the verdict in those cases in which juries were ultimately impaneled.

"It did not, however, attempt to define the types of cases in which juries were required or the range of issues that must be put to them. In the end, then, the Seventh Amendment was the result of political calculation. It was designed to neutralize anti-federalist complaints, while at the same time avoiding the need to say specifically what rights were actually to be enforced."

Modern judges shouldn't be limited by old Kings Bench cases in deciding when trial by jury is required by the Seventh Amendment, Herrington concludes. Instead, "the Framers of the Seventh Amendment left Congress and the Supreme Court free to fashion a functional approach to the use of juries in civil cases in federal courts, without regard to the received wisdom of Justice Story."

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