Reading legal texts doesn't put us in a different interpretive world: we should always embrace honest textualism.
I have been blogging about the original meaning of the Seventh Amendment. Here I want to discuss another issue concerning its meaning: how much the Amendment allows the legislature to change the rules governing jury trials?
One concern about the Seventh Amendment is that it might be thought to freeze in place the precise common law at the time. If the legal system changes in other ways, then those frozen rules might not have a coherent relation with the rest of the system.
I am not sure that I find this complaint that serious. Assuming that the common law rules were frozen in place, if the courts enforced those rules, the legal system would have to grow around those rules, rather than growing in a way that renders those rules obsolete. Moreover, other constitutional clauses also freeze certain rules in place and we normally assume that it is a good thing.
But let’s put the policy issue aside and explore the original meaning. I don’t think the Seventh Amendment “right of trial by jury” necessarily freezes all the details of the right. The most likely way that the right to trial by jury would not freeze all the details is if the Amendment protected the right against infringement, but allowed reasonable regulation of the right that did not undermine its fundamental features. Under this principle, the legislature could make certain changes to the details of the right, but could not deprive individuals of the core of the right. Obviously, drawing the distinction in particular cases might sometimes be difficult.
One would, of course, need evidence to draw this inference. One bit of evidence is that this distinction between infringing a right and reasonably regulating a right was often draw in the early years of the republic and it may therefore have been a background principle underlying some or all of the constitutional clauses. One does want to be careful about this. Some clauses used the term “abridge” and the abridge/regulate distinction work better there than in the absence of this language.
A more difficult issue involves the second of the clauses in the Seventh Amendment: “and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” This does not speak of a right, but to the rules of the common law. It is possible that the background rule might still kick in, but I think this is less likely, not only because it does not use the language of right, but also because this provision appears to be added in for extra emphasis (after all, it might be thought otherwise redundant of the right to a jury trial).