The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution.
I have been exploring the original meaning of the Seventh Amendment right to a civil jury trial. Here, I want to step back from that discussion and instead address the desirability of the Seventh Amendment.
In my view, it is not clear that a strong civil jury trial right is desirable. My reasons are similar to those that have been voiced by critics over the years. The civil jury is expensive in terms of the time taken from jurors and to the litigating parties. The civil jury is often not sufficiently expert to adjudicate complicated facts. And the civil jury often does not apply the actual law but instead their own views of justice. While the civil jury is a check on judges, I am not sure it is worth it.
If one believes the civil jury is a problem, then how should one deal with the Seventh Amendment and its original meaning? The short answer is that the Amendment should have been amended. If the judges had not relaxed the Amendment over time, then its problematic features would have become apparent, a consensus of some kind regarding its problems would have emerged, and an amendment that cut back on the right could have been enacted. Originalism would then have created the conditions for the amendment of the original meaning.
Instead, judges relaxed the meaning of the Amendment because they did not agree with the original meaning. Over time, these changes in the meaning of the Amendment reduced the undesirability of the Amendment and therefore made it much less likely that a consensus would emerge to amend the Amendment. But these improvements are still inferior to what the amendment process would have produced. These improvements reflect the preferences of judges rather than the public and are limited by what judges believed they could get away with in terms of interpretation. Ultimately, then, judicial revision or updating of the Constitution displaced the amendment process but employed an inferior process for changing the Constitution.
The Constitution and the Seventh Amendment would have been both better and more legitimate if the amendment process had been employed instead of judicial updating through interpretation.