Testimony to Constitution Subcommittee of the U.S. Senate Judiciary Committee Regarding the Arbitration Fairness Act of 2007 and the Constitutional Duty of Congress to Restore Citizens' Seventh Amendment Rights

Abstract

The Framers' election to preserve the common law right to civil jury trial in the Bill of Rights means that businesses may not remove this right from citizens by making its waiver a precondition to delivery of goods, services or employment. This conclusion is compelled by two considerations. First, the decision by the Framers to include this right in the Bill of Rights designates it as the kind of fundamental right waiver of which must be protected from any form of coercion, including the coercion imposed when a business makes waiver of the right a non-negotiable condition to delivery of a good, service or employment. Second, looking to the text of the Constitution, the decision by the Framers to protect the civil jury trial right with Article V's strong supermajority amendment requirements evinces their intent that the scope of the right's applicability not be subject to reduction by a less restrictive amendment mechanism - be it a majoritarian statutory amendment process (something the Framers contemplated) or what amounts to private legislation through standardized contractual waivers, a future development that the Framers, understandably, failed to anticipate. Pursuant to the Supreme Court's unconstitutional conditions doctrine, the state may not seek advance waiver of a citizen's Sixth Amendment criminal jury trial right in favor of bench trials in return for some unrelated benefit such as subsidized public housing or college tuition assistance. The coerciveness of such an offer becomes clear when one realizes that if the benefit offered were sufficiently valuable the citizen would readily waive her criminal jury trial right even if she strongly preferred jury trials over bench trials. Symmetrically, the Seventh Amendment civil jury trial right should enjoy the same protection against coercive removal as that provided the Sixth Amendment criminal jury trial right. Thus, a business should not be permitted to require that a citizen waive his jury trial right as a take-it-or-leave-it precondition to delivery of goods, services or employment. Coercion is coercion whether imposed by the state or a private party. Properly understood, it is protection against this form of coercion that constitutes the core minimum distinction between fundamental Constitutional rights and ordinary property interests. Viewed from a slightly different perspective, the very fact that lawmakers set forth an individual right applicable against other private parties in a constitution instead of a statute signals an intent that such right trump other persons' standard property rights where necessary to preserve citizens' ability to invoke such constitutional right. For example, in PruneYard Shopping Center v. Robins, California's Supreme Court held, and the Supreme Court unanimously affirmed, that California shopping centers may not make waiver of a customer's reasonably exercised state constitutional free speech and petition rights a condition to entry. Thus, the California Supreme Court found that the inclusion of these individual rights in California's constitution signals an intent that such rights trump a shopping center owner's common law rights to exclude people from its property and to control the activities permitted thereon. Following the same logic, the decision by the Framers to preserve in the Bill of Rights rather than in an ordinary statute (or not at all) the common law civil jury trial right signals an intent that such right trump the otherwise operable common law right of a business to make waiver of this or any other right a condition to delivery of goods, services or employment.