The Amendments Series: Common Law and the Civil Jury

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Photo by Sora Shimazaki on

I confess, until studying the Seventh Amendment to write this piece, I didn’t know much about the Seventh Amendment, nor had I ever really felt the need to know much about the Seventh Amendment. And yet, what I’ve come to realize during this series is how important and critical every single amendment in the Bill of Rights really is—albeit, in the context of knowing that, should our government actually follow the Constitution, we shouldn’t even NEED these rights explicitly listed out.

Our founding fathers knew what they were doing. Unfortunately, because most Americans either don’t know any amendments, or focus exclusively on protecting the first two, we’ve allowed the government, specifically the Supreme Court, to virtually nullify the other eight. The Seventh Amendment is perhaps one of the mostly grossly violated and ignored rights we have.

Let’s start with what the amendment says. It says:

“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 reexamined in any court of the United States, than according to the rules of the common law.”

man people woman adult

So, in basic language, this Seventh Amendment guarantees the right to trial by jury for civil cases where the controversy exceeds twenty dollars. Further, the amendment prevents judges from being able to nullify the jury’s verdict once it has been decided.

According to Dr. Thomas and Dr. Lerner from the Constitution Center, civil juries, or juries that decide civil cases, are non-existent in the whole world save for the United States. However, they have also become obsolete in the United States today with about 99% of all civil cases now being decided by judges rather than the Constitutionally mandated juries.

The right to a trial by jury in civil matters is a unique one and one that is better examined through a historical lens. Relying heavily on the expertise of two lawyers from the Constitution Center, I’ll attempt to peel back the layers of historical information so that you can better understand this fundamental right.

Historical Context: Civil Juries During the American Revolution

So, why did the founders decide to include the right to a civil jury in the Bill of Rights? They must have felt strongly enough about it to make it one of the ten fundamental rights that deserved being explicitly listed.

Historically, civil juries during the revolutionary era in the United States served as a safeguard against British tyranny. During this period, the colonists were not represented in British parliament but were expected to obey the laws the British government enacted. Fortunately, Americans were allowed to participate in colonial juries “and these juries became a way for Americans to govern themselves” (Thomas and Lerner).

Over time, as the revolution approached and the colonists began to feel more and more enslaved, the American juries would nullify the British laws they hated. Usually the laws had to do with taxation. This gave the Americans a way to govern themselves and a way to openly refuse to follow these abusive laws.

Therefore, civil juries become a cherished right for the American colonists as they saw it as their one way to fight back against British tyranny. Following this, the state governments made sure to guarantee the right to a civil jury in their constitutions.

Historical Context: Anti-Federalists and Madison

judgement scale and gavel in judge office

Fast forward a few years to the creation of the U.S. Constitution. Civil juries were a little less necessary once the colonists defeated the British and established their own government. Therefore, the Federalists chose not to include a specific right to a civil jury in the Constitution (nor did they include the Bill of Rights at all, remember?). Regarding to this specific right however, the Federalists were wary that the states could use it in a way to nullify laws of contract in favor of in-state debtors who did not want to pay the federal government.

However, the Anti-Federalists feared that without the right to a civil jury, there would be no safeguard against abusive legislative federal laws, tyrannical executive actions or biased judges. In other words, they argued that the civil jury protected Americans from an abusive federal government, much like the civil juries protected them from the British government.

Virginian Richard Henry Lee said: “The right to trial by jury is a fundamental right of free and enlightened people and an essential part of a free government.”

Because the Southern states refused to ratify the Constitution without such an amendment, Madison drafted the Seventh Amendment and formally declared the right to the trial by jury for civil and criminal cases as one of the most essential rights to preserving liberty.

Historical Context: Common Law

Over time, the right to a trial by jury for civil cases has been debated, re-interpreted and reapplied. Common law, in the language of the Seventh Amendment, meant the law and procedure of courts with juries as opposed to the laws and procedures of courts without juries. However, the courts have had trouble interpreting what common law actually means in practice and how it should affect the court system today.

According to Dimick v. Schiedt (1935), the Supreme Court ruled that any interpretation of common law from the Seventh Amendment should be interpreted according to the common law of England at the time the amendment was ratified—which would have been in 1791.

“This interpretation is known as the historical test. Generally, the types of cases that juries decide and the ways that judges can review their verdicts are supposed to resemble the practice in English common law courts in 1791. The Supreme Court has stated that the Amendment preserves the ‘substance’ of the right, not ‘mere matters of form or procedure’.”(Thomas and Lerner)

Historical Context: Not A Fundamental Right

unrecognizable man working on netbook in law office

The Supreme Court has determined that the Fourteenth Amendment requires that all rights deemed fundamental should be protected not only from the federal government but also from the state governments. This is why most of the Bill of Rights not only apply to the federal government but also state governments (again, part of the Supreme Court’s overreach in power).

However, the Supreme Court has deemed the Seventh Amendment not to be a fundamental right. In other words, while states cannot violate the majority of the federal amendments under the Bill of Rights, they can violate the right to a trial by jury in a civil case. The Seventh Amendment to this day is still one of the only unincorporated amendments in the whole Constitution—because it is “not fundamental”.

While I disagree with the incorporation of the Bill of Rights into states, I find it equally problematic that the Supreme Court can, for whatever reason, claim that the Seventh Amendment is nonessential while choosing that most of the other amendments are essential.

When did the Court get the power to determine the importance of rights guaranteed under our Bill of Rights? Is this not the very definition of arbitrary power?

This Supreme Court decision doesn’t align with the quote I just referenced a few paragraphs ago: “The right to trial by jury is a fundamental right of free and enlightened people and an essential part of a free government”

Today: Summary Judgement and the Missing American Jury

Today almost all civil cases are either decided by the judge or dismissed before ever even getting a trial. For example, Dr. Thomas explains:

“The Supreme Court has shifted other authority from juries. Once cases are under juries’ authority, using new procedures, judges can dismiss cases before, during, and after jury trials, by deciding that existing evidence does not support the claims that the people brought. One such procedure is called ‘summary judgment.’ Using this procedure, prior to a jury trial, a judge can decide if insufficient evidence exists and dismiss the lawsuit. In eighteenth-century England, a judge could not take a case away from the jury under these circumstances. A judge would assess the sufficiency of the evidence only after a jury trial.”

In other words, the summary judgement is a judgement made by a judge about the “legitimacy “ of a case. If the judge deems the evidence to be insufficient, the parties in question have no recourse and no jury to defend them against the court. The judge can simply throw the case out. The judge has issued a judgment on the summary of the evidence and found it insufficient. Dr. Thomas points out that this is contrary to the English common law in 1791 by which the Seventh Amendment should be interpreted.

the denver post office and federal court house

Further, “the Court has labeled as ‘public rights’ certain claims that Congress created through legislation. An example of a ‘public right’ includes the government alleging a company violated a federal law. In cases such as these, judges (here, in administrative agencies in the executive department), instead of juries, determine if the government wins and how much money it will receive.”

This is not, Dr. Thomas points out, in line with the historical method in which common law was applied in 1791. “In the past, juries, not judges, decided these types of cases in which the party bringing the lawsuit could receive money. The Seventh Amendment ‘preserve[s] the jury trial right’ in Suits at common law, where the value in controversy shall exceed twenty dollars.”

It was up to the jury to determine to whom and how much money should be awarded to the individuals involved in the case, rather than the government and the court. This is not how cases are handled today, however.

Unfortunately, the right to a trial by jury, especially in civil cases, is all but gone. Read Dr. Thomas’ book, Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil and Grande Juries to learn more. This means, unfortunately, that Americans today do not have the extra layer of protection that juries provide against government. This is a right that is all but lost. How might our world be different if it was not lost or we had fought for this right?


U. S. Supreme Court Justice Hugo Black wrote in 1939, “It is essential that the right of trial by jury be scrupulously safeguarded as the bulwark of civil liberty. Our duty to preserve the Seventh Amendment is a matter of high constitutional importance.”  

As you can see, the American citizens have failed rather miserably at preserving the Seventh Amendment. Likely this is because we’ve not seen its preservation as something of “high constitutional importance” and because we tend to only be concerned if government in infringing on the few things we hold dear rather than fighting to keep government accountable to its job description.

What I’ve come to learn throughout this series is that all parts of the Constitution, no matter how obscure or overlooked, are of “high constitutional importance”. All parts are essential to preserving liberty. All of the rights work together to help preserve each other. The founders thought through every aspect of the Constitution and worked to prevent every form of abuse to which they’d ever been privy.

books in shelf

It’s our job as American citizens to know the Constitution so that we can know if government is overstepping and abusing. And that means to know what all our rights are… not just our right to free speech or our right to own guns, but also our right to a trial by jury.

I’m realizing that by losing rights like the trial by jury, we are losing all of the extra layers of protection that our founders gave us to prevent government from eventually stepping in and taking those more popular rights like free speech and guns. Slavery occurs slowly, by first stripping us of the rights we don’t think about in order to get to the rights we do think about.

I’ll put it this way. If the government ever gets to our guns, we know it’s only because we’ve already let them get to all the rights in front of our guns.

Thomas Jefferson accurately said, “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”

Yes friends, it is the last resort.

The Liberty Belle

4 thoughts on “The Amendments Series: Common Law and the Civil Jury”

  1. Thank you very much for this article. I had no idea of what the Seventh Amendment might to our protection. I have a question concerning this. Can a person demand or does a person still have the right to a jury trail in a civil matter? Thank you for your all that you have done to educate.

    1. C. McMasters Ph.D.

      Great question. Of the top of my head, I’d say, since it’s explicitly in the Constitution, anyone should be able to demand the right to trial by jury for civil cases. That being said, I don’t know the intricacies of legal precedent regarding that particular practice. I can do some research and let you know. 🙂

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