Which “Common Law” Does the Seventh Amendment Protect?

In my last post, I cited to Renee Lettow Lerner’s paper describing how the Seventh Amendment Jury Trial Right had been given a narrow meaning.  Here I want to address one of the issues concerning the original meaning of the Seventh Amendment.  The Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

One of the most important Seventh Amendment issues is the meaning of “common law.”  When the Seventh Amendment was being debated, some people opposed it on the ground that the common law right to a jury trial differed in the states and therefore it was not clear which version of the right should be protected and which version would be protected by the Seventh Amendment.

Lerner points out that Justice Story held that “the common law” meant the common law of England based in part on the argument that the term was in the singular and that English common law was the source of all American common law.  This is a plausible argument, but was certainly not the only possibility.

A second possibility is that the common law should have been understood as the general law.  The general law was a conception of the common law that looked to the decisions of the various common law jurisdictions.  If there was disagreement between the jurisdictions, the court would have to decide which was the better view, considering the prevalence of the view as well as whether it was desirable.  This gave the court discretion to decide on the meaning of the common law, but if that is how the common law functioned, it is not for us to reject it for that reason.  Under this view, then, the court would decide which view of the common law was the correct one and that view would be constitutionally protected.

A third possibility is that the common law referred to the core of the decisions of the various states.  A judge would look to whether a right was protected in all of the states (or at least in a predominant number of them).  The common law would be understood as a reference to the core of the right protected in different jurisdictions.

Determining which of these possible interpretations is the strongest would require additional work.  But we should not automatically assume that the first possibility – the English common law – was the correct one.