Today in Supreme Court History: December 15, 1791

12/15/1791: First Ten Amendments ratified.

Comments

[Commenter_XY]

A question for the lawyers. The 9th amendment reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

Q: Why aren't there more cases claiming violations of individual rights based on the 9th amendment?

[AmosArch]

Boring. Who cares about trivial stuff like free speech and right to bear arms when we can focus on more fundamental freedoms such as the right to abortion up until birth and sometimes after and the right to be called by certain pronouns?

[Dan Schiavetta]

The right to a jury trial in a civil case depends on what the common practice was in English and American courts on December 14, 1791. It does not depend on what the practice was on December 16, 1791. As for December 15, 1791, it is unclear at what time of day Thomas Jefferson (the Secretary of State) declared the Seventh Amendment to be ratified. Also the fourteen states (Vermont was in by then) were all in the East. What about, say, California? If Jefferson affixed his signature to the declaration in New York (the national capital then) at 11 a.m., which would be roughly 7:48 a.m. local time in Sacramento (there were no time zones then), did the Amendment kick in at 7:48 a.m. or did the folks in Sacramento have to wait 3 hours and 12 minutes? Or did he sign at Monticello (about 13 minutes later than New York)?

It sounds like a joke but that's the analysis. "Originalism" is the evil spawn of the Seventh Amendment.

[Commenter_XY]

CA was admitted to the union in 1850, no?

[Dan Schiavetta]

Yes. But federal courts in California (the 7A doesn't apply in state court) are still bound by the law as it existed on 10:59 a.m. on December 15, 1791, when Jefferson, having stuck another needle into his Alexander Hamilton voodoo doll and having another slave whipped, sat down and began to trim his quill pen to affix his signature. Or maybe it was 7:47 a.m.??

[Commenter_XY]

LOL = voodoo doll joke.

[Cal Cetín]

I hadn't thought of this before - it is a well-thought-out critique of originalism which considers the philosophy on its own terms and carefully refutes it.

[Dan Schiavetta]

Thanks!

The 7A was the basis of my Law Review submission, which was a comment on Local 391 v. Terry (1990). My title was, "The Seventh Amendment is Senile and Doomed". My Law Review committee decided not to print it (and I didn't hold it against them; the subject matter was rather dry). But determining the 7A right to a jury trial has always depended on a historical analysis of what kinds of cases were tried by a jury in 1791.

As for originalism, at the time it was considered a quirky, far-right obsession of Scalia's and not a significant enough viewpoint to address in my article.