The Economic Origins of the Seventh Amendment

Abstract

In deciding whether to empanel a jury in a particular case, federal courts are limited to applying an articulated by the Supreme Court. This test requires that courts look to the character of the plaintiff's cause of action and decide whether it is of a type that would have been tried in the common law courts in England in 1791. If so, the action is triable by a jury today. This article reviews the history surrounding the adoption of the Seventh Amendment to assert that the historical test is entirely without warrant in the historical record and is based on a fundamental misconception about the Amendment's purposes. 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 or even agreed on a substantive rule at all. To discern a substantive rule in the text of Seventh Amendment reference first must be made to the economic compromise contained in the first Judiciary Act. In framing the first Judiciary Act, Congress struck a compromise along economic lines, allowing juries to determine cases in which the national government was only indirectly concerned, while eliminating juries in cases that had a more direct impact on the nation's revenue and commerce. While imperfect in many ways, this trade-off addressed the strong federalists' desire to limit the law-finding function, while still allowing weaker federalists to acquiesce in the creation of an extensive system of lower federal courts. As a result, by the time James Madison brought forth his amendments to the Constitution in June 1789, the controversy over the right to trial by jury in civil cases had already been resolved. Although most antifederalists (and even some federalists) believed that some explicit protection for civil juries needed to be enshrined in the constitutional text, the diversity of state practice made agreement on any specific formula impossible. Relying on the compromise already reached in the judiciary bill, therefore, the first Congress merely recommended that the right to trial by jury be preserved. 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 the branches of their government. It was also designed to commit the courts of the new Republic to respect the verdict of the jury in those cases in which juries were ultimately empaneled. It did not, however, attempt to define either 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 antifederalist complaints, while at the same time avoiding the need to say specifically what rights were actually to be enforced. Consequently, the Supreme Court's reliance on the historical test has actually become an unnecessary impediment to the implementation of the Seventh Amendment's jury trial guarantee.