Prof. Renée Lettow Lerner (GW) Guest-Blogging About the Second and Seventh Amendments


I'm delighted to report that Prof. Renée Lettow Lerner, of the George Washington University Law School, will be guest-blogging this coming week about her new article, The Resilience of Substantive Rights and the False Hope of Procedural Rights: The Case of the Second Amendment and the Seventh Amendment, 116 Northwestern Law Review 275 (2021). Prof. Lerner is the Donald Phillip Rothschild Research Professor of Law at George Washington University Law School, where she specializes in U.S. and English legal history, civil and criminal procedure, and comparative law. In particular, she has written extensively about, among other things, the history of American juries. I very much look forward to her posts!

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  1. The Seventh Amendment and the Grand Jury Clause of the Fifth Amendment are the last frontiers of the incorporation doctrine.

    My speculation? Neither will be incorporated.

    The Grand Jury Clause because incorporation would be too disruptive to the system and anyway grand juries aren't really popular in the right circles.

    The Seventh Amendment because the states already comply with it about as widely as they do the "incorporated" amendments, if not more so.

    1. Also grand juries are kind of useless.

      1. I'm sure there's a lot of ham-sandwich grand juries. Unsurprising when they're not trained, as citizens, about the grand juries' function. It should be taught in civics class - "if you're ever on a grand jury, remember that you're probably the only jury that will look at this case, and that just because you consider the evidence *informally* doesn't mean you should consider it *unfairly.*"

        I'd like to see the results if civics classes, naturalization classes, the media, etc., told citizens about that grand juries aren't supposed to ham-sandwich tribunals.

        There's one source of reassurance: If grand juries were *always* useless, the establishment would *love* them. They wouldn't want to curtail the power of a totally useless institution which rubber-stamped all the prosecutions they wanted.

        So at least the authorities fear the *potential* of grand jurors throwing out some cases. And we see newspaper reports of grand juries refusing to indict.

        The only thing which could convince me they're useless is seeing them praised by the authorities.

        1. I was a witness before a grand jury years ago on a case involving two guys who got into a fight where one pulled a knife on the other, an aggravating element pushing it to a felony. Anyway, long story short, the GJ asked probative questions about what I witnessed and ended up not indicting the knife wielding guy. I was in agreement with the GJ but was dragged in as a witness by prosecutors.

          I was pleasantly surprised by the GJ in that instance.

        2. I am reminded of the famous William F. Buckley comment against teaching sex education in public schools. His reasoning was that public schools had taken intrinsically interesting subjects like math and poetry and made students hate them and Buckley was worried about the possibility the same fate would befall sex.

          Have to say given the state of public education, including things like over 80% of high school grads in Detroit being illiterate, I have little confidence in their ability to teach anything.

      2. Grand juries are quite useful for abuse prosecution purposes. It's important to get that (as it's phrased in New York) "true bill".

        Any competent prosecutor can get an indictment of "a ham sandwich". (Wachtler, J.)

        1. Aren't your first and second paragraphs in conflict?

          1. I think "abuse" was meant to be "abusive", which renders them not in conflict.

        2. Grand juries are abusive because the courts let them. If the grand jury was supervised by a judge, prosecutors had real rules to follow, and prosecutors faced real consequences for not following the rules, things might work better. Failing that, revise what "probable cause" means and make prosecutors accountable for abuse.

          1. "Grand juries are abusive because the courts let them."

            It's not so much a matter of courts letting the grand jury be abusive, as of courts letting prosecutors reduce them to tools for abuse. The grand jury itself is scarcely responsible for it.

        3. The abuses aren't grounded in the Constitution. The Constitution requires a presentment or indictment before you can be "held to answer" for an "infamous crime." It doesn't say grand juries have to operate as suspect-abusing Star Chambers. Nor does it say grand juries have to use the same "probably cause" standard judges use to rubber-stamp search warrants.

          "an indictment is only in the nature of an enquiry or accufation, which is afterwards to be tried and determined ; and the grand jury are only to enquire upon their oaths, whether there be fufficient caufe to call upon the party to anfwer it. A grand jury however ought to be *thoroughly perfuaded of the truth of an indictment* [emphasis added], fo far as their evidence goes ; and not to reft fatisfied merely with remote probabilites : a doctrine, that might be applied to very oppreffive purpofes."

      3. Well I'd say im most cases they are pretty darn useful to the prosecutors who convene them. As a finder of fact, not so much.

  2. 7th amendment:

    "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."

    You know, I knew the 7th amendment guaranteed trial by jury, and I knew that the 20 dollar clause is there because it is correctly made fun of. I didn't realize until looking it up right now that the no reexaming facts tried by jury rule is in the constitution. I've always assumed that WAS part of the common law and convention.

    Though interestingly I do wonder, are there other references to "common law" in the constitution.

    I am curious if anyone has done a rigorous analysis of what "shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law" means, specifically it seems to imply certain facts CAN be reviewed, under common law, what exactly is that in this context? I presume part of these posts will contain such an analysis but idk.

    1. Nope, no one has ever taken the time to look into until you brought it up just now. It must have never come up.

      1. I assume it means "whatever the hell we are currently doing as we write this."

      2. I was more asking what it means than implying that no one has looked into it, but sure, carry on with your unnecessary sarcasm.

  3. I look forward to reading Professor Lerner's posts here. One of my favorite 1L memories from law school was a line from my Civ Pro professor. She explained why post-verdict evidence of what happened in jury deliberations is seldom admissible: "It's because we would be aghast at how they arrived at their decision."

  4. Both the 2nd and the 7th Amendments are artifacts of another time. No longer do we have militias, and bearing arms no longer exists as a civic duty; and nowadays juries in most situations lack the expertise to render competent verdicts. These two could be dispensed with with no ill effects. Though as to the 2nd we would see a decrease in gun violence, and as to the 7th a great saving of time and effort in the courthouse.

    1. Governments going into the weeds, and no need to merely imaging a boot stepping on a human face forever, these have gotten worse, not expired.

      So, no. Do not poop on them because they get in the way of people raging to increase government control in the direction of the boot steppers.

    2. The problem with your analysis is that the prefatory statement does not qualify the right to bear arms with terms like “so long as” or “being necessary for” or “only when”. Also, it's not uncommon for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it.

      The operative clause also says that the right to “keep and bear arms” is to be PRESERVED by government, implying that it pre-existed the Constitution similar to the 1A. Does it make more sense to anchor this right in the right of self defense or in a right to be part of a militia? The 1689 English Declaration of Rights read “the natural right of resistance and self-preservation,” which was effectuated by “the right of having and using arms for self-preservation and defence.” There is no evidence of a pre-existing right to serve in an armed militia.

      The right to self defense is not an artifact of past times.

      1. I actually think this is an appropriate invocation of the prefatory clause: if you accept that a well-regulated militia is no longer necessary to the security of a free State (and isn't likely to be again), then by its own terms the second amendment would seem to be unnecessary.

        That wouldn't mean that the amendment could just be ignored, of course, but it would certainly justify repealing it.

        1. If you accept that a well-regulated militia is no longer necessary to the security of a free State (and isn’t likely to be again), then... you must not have been paying attention to Twentieth Century history.

        2. Saying that a well regulated, (Meaning, well trained and equipped, not ground under the heel of "regulators".) militia is necessary to the "security" of a free state, doesn't mean that a state can't be free without one.

          It means that freedom won't be secure.

          Having a militia instead of a standing army is a precaution, like having a fire extinguisher in your kitchen. You may go many years without ever needing it, but if you ever need it and don't have it, you're hosed.

          Anyway, I think you've maybe gotten a bit jaded about the degree to which our state is no longer free.

      2. Just because a right preexisted the Constitution doesn’t mean it still exists today.

        Also, the point of the Bill of Rights was to protect the people from the government, not from each other.

        1. "The Second Amendment helps those who help themselves" - probably some Founding Father who was deep in his cups

        2. "Just because a right preexisted the Constitution doesn’t mean it still exists today."

          Just because you don't like a a right that preexisted the Constitution doesn’t mean it does not still exist today.

          Rights don't disappear with mere passage of time. It takes an affirmative amendment to the Constitution to eliminate it.

      3. "implying that it pre-existed the Constitution similar to the 1A."

        All rights in the Bill of Rights pre-existed the Constitution. As did other rights not listed.

    3. "These two could be dispensed with with no ill effects."

      You might think that you could dispense with your appendix with no ill effects. But the manner of its removal might matter, no? Wouldn't want it removed using a shotgun, I expect.

      So, are you proposing to formally repeal these amendments, or just to license the courts to ignore any bits of the Constitution they happen to dislike? The latter is a bit of a shotgun, I think.

    4. Before throwing the baby out with the bathwater, maybe we could look at Rule 706 of the Federal Rules of Evidence:

      The judge can appoint his own expert to be questioned by the judge (and cross-examined by the parties). If the jurors are confused by the evidence, a putatively impartial witness will lay everything down for the edification of the jurors.

      If we go to judge trials, the same dynamic will hold because many judges went into law because (to quote Barbie) math is hard.

      I don't know how often the judge appoints her own experts for the jury's edification, but it sure would be nice.

  5. Perhaps, she can blog about the plagiarism of the catechism by the common law. Then, about how that is quite illegal in our secular nation.

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