Bill of Rights at 225: Ongoing fight to preserve trial by jury

Ninth in a 12-part series on the 10 amendments of the Bill of Rights, running through Dec. 22. Today: The Seventh Amendment.

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The Anti-Federalists were not happy about much of newly proposed Constitution. They directed their particular ire at the omission of a right to trial by jury in civil cases. They had hit a sore point and the Federalist reply was weak. The Federalists argued that the form of the civil jury varied among the states so there could not be clearly one kind of civil jury for the federal courts in the Constitution. Not to worry, the Federalists soothed: Congress will take care of it instead.

But the Anti-Federalists would not be gain-said. Their arguments piled up upon one another. One of the indictments against King George III in the Declaration of Independence was that he deprived Americans "in many cases, of the benefits of trial by jury." Further, the Constitution guaranteed trial by jury in criminal cases; that meant, by ordinary rules of construction, that civil juries were actually prohibited.

Moreover, the Supreme Court had appellate power "both as the Law and Fact." That meant that the court could, on its own, review the fact-finding of juries in the states, effectively destroying any state civil jury right. Lastly, 12 of the states guaranteed a right to civil juries in their constitutions. Why not the federal Constitution?

Men like Elbridge Gerry and George Mason refused to sign the Constitution partly because of the lack of a civil jury guarantee. With all the weighty arguments of the Anti-Federalists, one can imagine James Madison (figuratively) looking at Alexander Hamilton and whispering, "Oops."

In fact, the first thing that the First Congress did in 1789 was to pass a Judiciary Act that provided, "the trial of issues of fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury."

But it was not enough.

At the behest of Madison, the same Congress drafted the Bill of Rights to send to the states for ratification. What became the Seventh Amendment passed with no debate.

The Amendment erected a double guarantee.

First, there was the straightforward right to a jury trial in "suits at common law." That left out admiralty courts, which always had operated without juries, as well as suits at equity where courts directed certain remedies, such as injunctions.

Second, it protected state jury trial verdicts from federal court review, unless there had been a mistake in the law made by the state court. Thus, a federal court could not review the fact-finding determination of the state jury.

In interpreting the Seventh Amendment, the Supreme Court has used an originalist methodology. It will protect civil jury trial for those kinds of suits that had them at the time of the ratification of the amendment, or perhaps causes of actions, such as declaratory actions, that were very much like what was extant then. Congress, however, can exempt claims against the government from jury trials because, as was true at the time of the Constitution, the sovereign has immunity from suit except on the terms by which he allows himself to be sued.

Early on, justices such as Joseph Story faithfully limited the range of federal appellate review to questions of law and not the findings of fact by the jury. But the 20th century saw a progressive whittling away of the dispositive right of a jury to determine facts.

The Federal Rules of Civil Procedure, first adopted in 1937, allows appellate courts to weigh the sufficiency of evidence particularly when considering motions for summary judgment or directed verdicts. The Supreme Court has allowed reversal of jury determination of compensatory damages if they are "excessive," and has recently made the award of the level of punitive damages a question of law, not fact.

So too, the court decreed, can appellate courts set aside jury verdicts for "gross error," or those that "shock the conscience," or if there was "an abuse of discretion." Generally, findings by an appellate court of jury error require only a new trial, unless the reviewing court finds that the evidence could not possibly support the jury's verdict.

Lastly, as a legal and practical matter, the opportunity for a civil jury trial has been greatly reduced. The Seventh Amendment, along with the requirement for grand jury indictment in the Fifth Amendment, are the only parts of the Bill of Rights not to have been applied to the states. The vast majority of civil suits in the federal court system never reach trial, but are settled. Many if not most contracts that we sign for major purchases, such as cars or appliances, have a compulsory arbitration clause that precludes recourse to civil suit and jury determination.

We have come a long way from the Framers' defense of the "inestimable right of trial by jury." It seems that the fears of the Anti-Federalists have, at least partially, been realized.

David F. Forte is professor of law at Cleveland State University, and Garwood visiting professor at Princeton University. He is the senior editor of "The Heritage Guide to the Constitution."

Tomorrow: The Eighth Amendment.