Amending the Seventh Amendment

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 22, 2015 at 10:43:06 am

This post is rather short-sighted. The right to trial by jury is not merely a check on judges, it is a check on the sovereign as well. Yes, in purely private two-party disputes, this check may be of little use or rarely applied, but the jury's roll as a check on the sovereign, as envisioned in the Magna Carta, should not be confined to the criminal law. When the Federal Government uses civil procedures for such things as civil asset forfeiture, civil penalties for regulatory violations, even civil collection procedures for tax collection, the civil jury can and should play a role in checking the abuse of power by the sovereign.

read full comment
Image of Daniel Artz
Daniel Artz
on May 22, 2015 at 18:32:29 pm


I am curious how you would reply to this. What Mr. Artz writes here strikes me as correct, both as to the historical meaning of Magna Charta as it emerged in England in the centuries after 1215, but also as one of the concerns Antifederalists articulated during the ratification debates.

All best,

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on May 22, 2015 at 19:26:07 pm

I second (or third) that motion - Mr. Artz makes a rather compelling point!

Also: What should the Seventh look like?

read full comment
Image of gabe
on May 26, 2015 at 12:17:07 pm

My opinion of the post or article is that dear Mike is severely handicapped on his understanding of the constitution.. Maybe he could show us all where the constitution permits the court to interpret the constitution. Historically the courts lost the privilege when the constitution was ratified. the judges that we had were originally the kings representative and had much more authority. That authority was removed by the limitations placed on the courts when the constitution was ratified. The courts have made every effort to get back all of the authority they lost. Dear mike might be interested to read Volume 16 the second edition of American Jurisprudence in the second edition titled penalties for the violation of the oath of office, somewhere around section 152 to 155. judges are to be unbiased without opinion and rule according to only the words that are printed and exist in the law, there is no interpretation of law permitted. Nothing else is to be considered or they have violated their oath of office and must resign or be removed from office and disbarred. Our constitution has no allowance for what is commonly called an activist judge, one who rules outside of the printed law. judges may resign to avoid ruling according to the law. but at the point they violate their oath of office they are no longer a judge, they loose all power and authority of the office instantly. Nothing they do from that point forward as a judicial officer is valid. Stick that in your pipe expert law professor. Violating the judicial oath of office is equal to the penalties for a felony conviction. If judges had the power to interpret they could rule a small part of the constitution invalid or rule the entire constitution void. They are in fact forbidden to interpret. Any opinion is a bias. they are required to rule on only what the law states. Judges do not make law they enforce law. Police investigate crime, judges enforce law. Sandra day O'Connor resigned before she could be impeached for violating her oath of office.

read full comment
Image of PC
on May 26, 2015 at 13:35:44 pm

It really erks me when people expect others to bow to their claims of superior education and prestige. Any one that can read English can go to any federal court building law library and read the facts of law for themselves. If you have had the experiences with the courts that I have had you soon learn how important it is to know what the laws actually say. Then you are made to understand just how corrupt our courts have become at every level from traffic court to the US Supreme Court. In my opinion those pompous Bs should all be hung for what they have done to the American legal system. In the last few years I have kicked butt representing my self pro se. I refuse to take the bar exam and it drives them nuts. I was recently hauled in to a community development hearing. I let them make their case then it was my turn. the hearing officer said he was going to fine me 50 dollars a day until I came into compliance with their complaints. I asked that hearing officer if he had an affidavit for an oath of office on file with the secretary of state as a judicial officer. he said no. then I informed him he was committing a felony impersonating a judge. Only a judge can impose fines, Cussed him out flipped him off and walked out. I never heard another word from that office and two weeks later five people in that officer were looking for other work. They did not like my old truck and were going to have it towed away and send me the towing bill. I told them that truck is licensed and insured and I will shoot the first person that touches it. I asked a bar certified attorney what it would cost to get custody changed, he laughed and said that is impossible but for 250 k I can get your visitation increased one or two day a month. I smiled and left his office. I spent 45 dollars filing and serving my own case and won a total change of custody in a California Superior court. I had to correct the judge on his knowledge of an out of state service of notice of motion. He wrote a public apology for his error in causing a 32 day delay of hearing and admitted he was wrong and my service was correct. With all of the legal hassles I have run into I'm beginning to think hanging judges, law enforcement officers and attorneys should become a national sport. The whole system is severely corrupt. The incompetence is just mind boggling. Frankly to have someone claim to be a law professor and make the kinds of statements this one does tends to prove my point. In Arizona I managed to get child support permanently terminated cleared my self of several felony counts and won total custody of my daughter over the period of about a year I also helped to get one bar certified attorney disbarred. the case with my first child helped get the federal child stealing act passed (federal code 96-611) There are good cops , attorneys and judges but the number in infinitesimal compared to the bad ones. I have been jacked around by the best of the worst and I am not going to take it any more.

read full comment
Image of PC
on May 26, 2015 at 14:11:58 pm

I think you are all missing the point. The magna carta and the federalist papers all be came null and void, having no effect or influence when the constitution was ratified. The framers clearly admit this is an experiment, the only one of its kind in the world even today. To understand the constitution you can not rely on anything like the magna carta or the federalist papers. They are great history but have no bearing on the constitution. A great misconception to day is that we live in a democracy, BS. Re cite the pledge of allegiance. We live in an experiment, a democratic republic. I pledge allegiance to the Flag of the United States of America and to the REPUBLIC for which it stands, one Nation under God Indivisible with Liberty and Justice for All. It is no longer the colonies the kings magistrates were running. They set up the legal system to give us the most protections from government that was possible. It took eleven years to select every word written down in the constitution and two more years to get the bill of rights ratified. they were not playing games they meant every word. It is written in plain English you do not have to be a Latin or Greek scholar to read it. Read what was written, live what was written, it was written to be enforced not interpreted and legal scholars opinions of what is says are not worth piss. If you do not like the way the constitution reads there are other places in the world you can live, but there are no better in most other countries you would be arrested for your stated complaints. grow up it is not perfect but it is the best there is.

read full comment
Image of PC
on May 30, 2015 at 01:09:20 am

[quote]That authority was removed by the limitations placed on the courts when the constitution was ratified.[/quote]

The problem here is that the constitution explicitly GIVES the judiciary, vested in the Supreme Court of the United States, by definition, the right to interpret the meaning of the constitution. This is a position which is strengthened by the concept of the separation of powers. Without the power to "interpret" the constitution, we would then not have a Supreme Court, in the sense we know it.

read full comment
Image of John Doe
John Doe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.