Right to Jury in Civil Cases
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved....
Toward the end of the Constitutional Convention, Hugh Williamson of North Carolina noted that “no provision was yet made for juries in civil cases and suggested the necessity of it.” Elbridge Gerry agreed, while George Mason further argued that the omission demonstrated that the Constitution needed a Bill of Rights. Nathaniel Gorham of Massachusetts responded that the question should be left to Congress because of complexities in determining what kind of civil cases should be given to a jury. A few days later, when Gerry and Charles Pinckney moved to insert “And a trial by jury shall be preserved as usual in civil cases,” Gorham argued that there was no usual form, because the structure of civil juries varied among the states. Apparently sensing the difficulty in phrasing the guarantee, the convention unanimously defeated the motion.
It was a costly oversight, for the omission of a guarantee of civil juries occasioned the greatest opposition to the Constitution in the ratifying conventions, as Alexander Hamilton candidly admitted in The Federalist No. 83. Hamilton tried to minimize the differences by arguing that the only difference between the supporters and detractors of the Constitution on this issue was that “the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.” Mason and Gerry had themselves refused to sign the Constitution, citing the absence of the guarantee among their other concerns. In the ratification debates, the Anti-Federalists argued that the provision in the Constitution for juries in criminal cases necessarily implied their abolition in civil cases. The Anti-Federalists tied this argument to their objections to the power of the Supreme Court in Article III to hear appeals “both as to law and fact,” suggesting that the Constitution would effectively abolish juries in the states as well.
In response, the Federalists continued to argue that defining in the Constitution the appropriate cases for civil juries was too difficult a task and that the Congress could be trusted to make provision for civil juries. This was a weak argument, as twelve of the states themselves protected civil juries in their constitutions. Of the six ratifying conventions that proposed amendments to the Constitution, five included a right to a jury in civil cases.
The history of the revolutionary struggle also counted against the Federalists. The colonists had had no objection to trials without juries in traditional admiralty and maritime cases. But when Parliament extended the jurisdiction of the admiralty courts to other cases, the colonists’ opposition to England crystallized around the deprivation of their right to trial by jury. In the Declaration of the Causes and Necessity of Taking up Arms (1775), the Second Continental Congress declared: “[S]tatutes have been passed for extending the jurisdiction of courts of Admiralty and Vice-Admiralty beyond their ancient limits; for depriving us of the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property.” The complaint was also among the bill of particulars in the Declaration of Independence.
The Seventh Amendment, passed by the First Congress without debate, cured the omission by declaring that the right to a jury trial shall be preserved in common law cases, thus leaving the traditional distinction between cases at law and those in equity or admiralty, where there normally was no jury. The implied distinction parallels the explicit division of federal judicial authority in Article III to cases (1) in law, (2) in equity, and (3) in admiralty and maritime jurisdiction. The contemporaneously passed Judiciary Act of 1789 similarly provided that “the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.” As Justice Joseph Story later explained in Parsons v. Bedford (1830) “In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.”
The Supreme Court has, however, arrived at a more limited interpretation. It applies the amendment’s guarantee to the kinds of cases that “existed under the English common law when the amendment was adopted,” Baltimore & Carolina Line v. Redman (1935), or to newly developed rights that can be analogized to what existed at that time, Luria v. United States (1913), Curtis v. Loether (1974). Accordingly, in a series of decisions in the second half of the twentieth century, the Supreme Court ruled that the Seventh Amendment guarantees the right to trial by jury in procedurally novel settings, like declaratory judgment actions, Beacon Theatres v. Westover (1959), and shareholder derivative suits, Ross v. Bernhard (1970). The Court also applied the amendment to cases adjudicating newly created statutory rights, Curtis v. Loether, Pernell v. Southall Realty (1974). In addition, the Supreme Court has ruled unanimously that when factually overlapping “legal” and “equitable” claims are joined together in the same action, the Seventh Amendment requires that the former be adjudicated first (by a jury), and that when legal claims triable to a jury are erroneously dismissed, relitigation of the entire action is “essential to vindicating [the plaintiff’s] Seventh Amendment rights.” Lytle v. Household Manufacturing, Inc. (1990).
The right to trial by jury is not constitutionally guaranteed in certain classes of civil cases that are concededly “suits at common law,” particularly when “public” or governmental rights are at issue and if one cannot find eighteenth-century precedent for jury participation in those cases. Atlas Roofing Co. v. Occupational Safety & Health Review Commission (1977). Thus, Congress can direct Article III courts to resolve personal and property claims against the United States without the aid of a jury, or simply divert such claims to non–Article III courts with no jury component. Osborn v. Haley (2007). In addition, where practice as it existed in 1791 “provides no clear answer,” the rule is that “[o]nly those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature.” Markman v. Westview Instruments, Inc. (1996). In those situations, too, the Seventh Amendment does not restrain congressional choice.
In contrast to the near-universal support for the civil jury trial in the eighteenth and early nineteenth centuries, modern jurists consider civil jury trial neither “implicit in the concept of ordered liberty,” Palko v. Connecticut (1937), nor “fundamental to the American scheme of justice,” Duncan v. Louisiana (1968). Accordingly, in solitary company with the Grand Jury Requirement Clause of the Fifth Amendment, the Seventh Amendment is not “incorporated” against the states; it applies only in the federal courts. In the federal courts, the parties can waive the right, but there is no longer a requirement, as there was in 1791, that civil juries be composed of twelve persons and must reach a unanimous verdict. Colgrove v. Battin (1973).
George E. Butler II, Compensable Liberty: A Historical and Political Model of the Seventh Amendment Public Law Jury, 1 Notre Dame J.L. Ethics & Pub. Pol'y 595 (1985)
Eric Grant, A Revolutionary View of the Seventh Amendment and the Just Compensation Clause, 91 Nw. U. L. Rev. 144 (1996)
Kenneth S. Klein, Is Ashcroft v. Iqbal the Death (Finally) of the “Historical Test” for Interpreting the Seventh Amendment?, 88 NEB. L. REV. 467 (2010)
Stanton D. Krauss, The Original Understanding of the Seventh Amendment Right to Jury Trial, 33 U. Rich. L. Rev. 407 (1999)
1 John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights (1986)
Symposium, Originalism and the Jury, 71 OHIO ST. L.J. 883 (2010)
Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639 (1973)
Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830)
Kohl v. United States, 91 U.S. 367 (1876)
Luria v. United States, 231 U.S. 9 (1913)
Baltimore & Carolina Line v. Redman, 295 U.S. 654 (1935)
Beacon Theatres v. Westover, 359 U.S. 500 (1959)
Duncan v. Louisiana, 391 U.S. 145 (1968)
Ross v. Bernhard, 396 U.S. 531 (1970)
Colgrove v. Battin, 413 U.S. 149 (1973)
Curtis v. Loether, 415 U.S. 189 (1974)
Pernell v. Southall Realty, 416 U.S. 363 (1974)
Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442 (1977)
Tull v. United States, 481 U.S. 412 (1987)
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989)
Lytle v. Household Manufacturing, Inc., 494 U.S. 545 (1990)
Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996)
Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999)
Osborn v. Haley, 549 U.S. 225 (2007)