The Failure of Originalism to Preserve the Civil Jury Trial

Recently, the Center for the Study of Constitutional Originalism at the University of San Diego hosted the presentation of a paper on the constitution right to a jury trial by Renee Lettow Lerner.  Lerner’s paper is entitled: The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial and here is the abstract:

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.

Lerner’s paper does a great job of reviewing the history and decline of these jury trial clauses.  She shows that the courts, both at the federal and state level, have generally been willing to undermine or narrowly construe the jury trial rights.  This does not seem all that surprising, since the lesser the jury right, the more power judges have.  In this way, the paper is similar to papers that have been written about other constitutional clauses that have been interpreted in nonoriginalist ways by judges who have not liked the original meaning of the clauses.

But what is the original meaning of the Jury Trial Clause in the Seventh Amendment of the Federal Constitution?  In my next post, I will address some of the issues.