The Volokh Conspiracy
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Should the Seventh Amendment Civil Jury Trial Right Apply to the States?
The right to a civil jury trial is far more deeply rooted in American history and tradition than is the right to own guns, which the Supreme Court was right to incorporate.
This coming Thursday, June 12th, the Court will decide whether to grant certiorari (or whether to request a response) to the Institute for Justice's petition for certiorari in Thomas v. County of Humboldt, a case which asks the Court to incorporate the Seventh Amendment civil jury trial right through the Fourteenth Amendment against the States.
The Bill of Rights was originally enacted in 1791 to constrain Congress; protections against state overreach were left to state constitutions. But the Fourteenth Amendment was created to provide federal protection against state power; and since the Civil War, the Court has held (through a process called "incorporation") that nearly all the Bill of Rights applies to the states via the Fourteenth Amendment.
The right to civil jury trial was among the three civil rights most deeply rooted in American history and tradition at the time of the framing of the federal Bill of Rights along with the right to criminal jury trial and the right to the free exercise of religion. The right is by far and away the most important right in the Bill of Rights that has not yet been incorporated; the other two unincorporated rights are the Third Amendment's protection against the quartering of soldiers in peoples' homes (a practice that no longer happens) and the right to indictment by a grand jury (which is meaningless since prosecutors can persuade grand juries to indict even "a ham sandwich").
Cases like Thomas v. County of Humboldt, which involve a dispute between the government and a private citizen, where petitioners are challenging millions of dollars of fines assessed against impoverished litigants in administrative proceedings by the government with no right to a civil jury trial, show that incorporation of the Seventh Amendment is as urgent as was incorporation of the Excessive Fines Clause in Timbs v. Indiana, 586 U.S. 146 (2019). As the Supreme Court held last year in SEC v. Jarkesy, 603 U.S. 109 (2024) (requiring the SEC to litigate fraud cases in federal district court with a Seventh Amendment right to a civil jury trial), "[t]he right to trial by jury is 'of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right' has always been and 'should be scrutinized with the utmost care.'" Id. at 121. A continuing failure by the Supreme Court to incorporate the civil jury trial right against the States would thus be an embarrassing omission from the Court's caselaw given that this right is even more deeply rooted in American history and tradition than are almost any other right including especially the right to own a gun for one's own self-defense.
The Thomas case seeks to change that, and I think the Court should agree on this with the petitioners.
In 2010, the Supreme Court correctly incorporated the Second Amendment's right to own a gun for one's own self-defense in McDonald v. City of Chicago, 561 U.S. 742 (2010) on a five to four vote. The Court held correctly that the right to own a gun for one's self-defense was a right that was deeply rooted in American history and tradition following Washington v. Glucksberg, 521 U.S. 702 (1997). Accord, Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022) (abortion rights are not deeply rooted in history and tradition).
In McDonald, the Court observed that 22 States out of 37 States in 1868, when the Fourteenth Amendment was ratified, protected the right to keep and bear arms in their State Bills of Rights, i.e. 59% of the States at that time. Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition? 87 Texas L. Rev. 7, 50-55 (2008). Sixty-one percent of the American people lived in those States in 1868—a sizable super-majority. Id. at 50. Based on this, and other evidence, the Court rightly concluded that the right to own a gun for one's own self-defense was very deeply rooted in American history and tradition. The Court reached this correct outcome even though in 1791, when the federal Bill of Rights was ratified, only 5 States out of 12 that had written constitutions and Bills of Rights protected gun rights. Steven G. Calabresi, Sarah E. Agudo, and Kathryn L. Dore, State Bills of Rights in 1787 and 1791: What Individual Rights are Really Deeply Rooted in American History and Tradition?, 85 Southern California Law Review 1451, 1485-1487 (2012).
But when it comes to the Seventh Amendment, 36 out of 37 State Constitutions in 1868, guaranteed the right to jury trials in all civil or common law cases. Calabresi & Agudo, supra at 77-78. "Fully 98% of all Americans in 1868 lived in jurisdictions where they had a fundamental state constitutional law right to jury trial in all civil or common law cases." Id. at 77. The lone State in the Union not to recognize a right to civil jury trial in 1868 was Louisiana, which because of its French and Spanish roots in the civil law tradition found there to be no right to civil jury trial; in this, Louisiana diverged from all other states' common law tradition, which recognizes such a right. The case for the incorporation of the Seventh Amendment is much stronger than was the case for the incorporation of the Second Amendment (which, again, I think the Court was right to incorporate).
In 1791, when the federal Bill of Rights was ratified, 12 of the 14 States (the original 13 plus Vermont, which had just joined the Union) had new constitutions and Bills of Rights, while Rhode Island and Connecticut retained their colonial charters with all references to the King of Great Britain struck out. All 12 of these States protected the right to civil jury trial in their new State constitutions and Bills of Rights. Calabresi, Agudo & Dore, supra at 1511. More than 85% of the American people lived in states with such constitutional protection of the right to civil jury trial. Id. In addition, Connecticut and Rhode Island also protected the right to civil jury trial even in the absence of newly crafted state constitutions. See Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 655 (1973). "In all of the thirteen original states formed after the outbreak of hostilities with England, the institution of civil jury trial was continued, either by express provision in a state constitution, by statute, or by continuation of the practices that had applied prior to the break with England." Id.
Today, forty-nine States representing 98% of the States and 98.5% of the U.S. population guarantee the right to jury trials in civil cases within their state constitutions, and Louisiana is the only outlier. Steven Gow Calabresi et al., Individual Rights Under State Constitutions in 2018: What Rights Are Deeply Rooted in a Modern-Day Consensus of the States?, 94 Notre Dame L. Rev. 49, 113 (2018). But as the Thomas petition for certiorari shows States are ignoring their State Constitutions (or at least reading them unduly narrowly), including in imposing outrageous multi-million-dollar fines in administrative proceedings against impoverished defendants.
The last time the Supreme Court considered in any detail whether to incorporate the Seventh Amendment was in 1916, 109 years ago, in Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916). To say the least, the Supreme Court's incorporation caselaw has shifted mightily since then, but the Court has never gone back and overruled Bombolis as it should do now. The Thomas case presently before the Court shows why it is urgent to take that step right away.
The civil jury has a long and distinguished history in Anglo-American law. The great English Law commentator, William Blackstone, who was widely read by the framers of the Bill of Rights, wrote that jury trial was used "for time out of mind" in England, see William Blackstone, Commentaries 349; whether or not he was correct as a matter of history, his views were the basis for founding-era attitudes, see Wolfram, supra at 653 n.44 (1973) ("The framers all seem to have agreed that trial by jury could be traced back in an unbroken line to … Magna Charta"). The Declaration of Independence complained in 1776 of "pretended Legislation … depriving us in many cases of the benefit of Trial by Jury."
The Continental Congress in the Ordinance for the Northwest Territory ensured that the "inhabitants of the said territory shall always be entitled to the benefits of … the trial by jury." An Ordinance for the Government of the Territory of the United States, Northwest of the River Ohio art. II (1787). And, importantly, the Judiciary Act of 1789 provided for jury trials in "all suits at common law in which the United States sue," even before the ratification of the Seventh Amendment in 1791. An Act to Establish the Judicial Courts of the United States Section 9, 1 Stat. 73,77 (1789).
The absence of a civil-jury guarantee in the Constitution was among the Antifederalists' chief objections to the Constitution of 1787, and the Framers responded to this objection by putting the Seventh Amendment in the federal Bill of Rights. Several relevant themes emerge from their remarks from that era. For one, they concurred with Blackstone that the right was a critical check on abuses of power by tribunals of all stripes. A pseudonymous Farmer warned that juries were integral to curbing the power of corrupt judges, "who may easily disguise law, by suppressing and varying fact," and stopping a backslide into "despotism." Essays by a Farmer, Md. Gazette (March 21, 1788) in 5 The Complete Anti-Federalist 36, 37-40 (Storing Ed. 1981).
In addition, the Antifederalists understood that the civil-jury guarantee was an especially vital shield for liberty in a particular context: suits between private citizens and the government as in Thomas v. County of Humboldt. The pseudonymous Democratic Federalist warned in 1787 of possible abuses by military officers, excise or revenue officers, or constables:
[I]n such cases a trial by jury would be our safest resource, heavy damages would at once punish the offender, and deter others from committing the same: but what satisfaction can we expect from a lordly court of justice, always ready to protect the officers of government against the weak and helpless citizen …? What refuge shall we then have to shelter us from the iron hand of arbitrary power?
See Letter from a Democratic Federalist (Oct. 17, 1787), in The Founders' Constitution 354 (P. Kurland & Ralph Lerner eds. 1987). The reference to "excise or revenue officers" makes clear that civil suits between citizens and either the federal or state governments like the one in this very case under discussion were especially worrisome.
Likewise, James Monroe at the Virginia ratifying convention worried about the possible loss of the jury trial in tax disputes with the federal government. See 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 218 (Jonathan Elliot ed. 1891). Monroe's concern about such suits is just as relevant in tax disputes between a private citizen, or a victim of police brutality, and a State revenue officer or a State police department.
The Antifederalists understood that the guarantee to a civil jury trial was, at its core, a republican ideal. The jury was to a judicial branch of government what the lower Houses of the federal or state legislatures were to the legislative branch:
The trial by jury is very important in another point of view. It is essential in every free country, that common people should have a part and share influence, in the judicial as well as in the legislative department. To hold open to them the offices of senators, judges, and offices to fill [for] which an expensive education is required, cannot answer any valuable purposes for them; they are not in a situation to be brought forward and fill those offices …. The few, the well-born, etc. as Mr. Adams calls them, in judicial decisions as well as in legislation, are generally disposed and very naturally too, to favour those of their own description.
The trial by jury in the judicial department, and the collection of the people by their representatives in the legislature, are those fortunate inventions which have procured for them, in this country, their true proportion of influence, and the wisest and most fit means of protecting themselves in the community.
Letter from the Federal Farmer, No. 4 (Oct. 12, 1787), in 2 The Complete Anti-Federalist 249-50 (Storing Ed. 1981).
The first ever dictionary of the English language, as it was spoken in the United States, was Noah Webster's, American Dictionary of the English Language (1828). Webster defines the word "jury" as follows (emphasis added): "JU'RY, noun [Latin juro, to swear.] A number of freeholders, selected in the manner prescribed by law, empaneled and sworn to inquire into and try any matter of fact, and to declare the truth on the evidence given them in the case. Grand juries consist usually of twenty four freeholders at least, and are summoned to try matters alleged in indictments. Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions. The decision of a petty jury is called a verdict." It is clear that Webster in 1828, thought there was a nearly **just to acknowledge the Louisiana exception** universal right to civil jury trial in all federal and state civil cases in the U.S., which there was.
During the years leading up to the Civil War, abolitionists complained bitterly about the lack of federal or state jury trials in cases determining whether an alleged northerner, who happened to be Black, was, or was not, a fugitive slave. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 269-270 (1998). For a full and persuasive argument that the Fourteenth Amendment demands what Amar calls the refined incorporation of the Seventh Amendment, one need only consult pages 269 to 278 of Amar's timeless and excellent book. The right to a civil jury trial was as foundational to the Framers of the Fourteenth Amendment as it was to the Framers of the Bill of Rights. This is hardly surprising given that, as noted above, 36 out of 37 States constitutionally guaranteed a right to civil jury trial in 1868 when the Fourteenth Amendment was ratified.
My good and highly esteemed friend, Sam Bray, has urged on another blog against the incorporation of the Seventh Amendment for what are, in my view, essentially policy reasons. Even if I agreed with Sam as a matter of policy—and I do not, because of the ruinous effects of State use of administrative proceedings in multi-million dollar cases involving poor and abused litigants like those in Thomas—I think that the law here is quite clearly in favor of the incorporation of the Seventh Amendment, as is argued in Amar's spectacular book cited above.
Sam's biggest concern is with what he fears would be the devastating effect that incorporating the law on civil jury trial, as it stood in 1791, would have on Delaware's Court of Chancery where most of the nation's corporations are chartered and where much corporate litigation takes place.
Professor Amar, and I, however, do not think that Section 1 of the Fourteenth Amendment incorporates the law as to rights in the federal Bill of Rights as that law stood in 1791. Instead, we favor what Amar calls refined incorporation, which would among other things ask what the law was on civil jury trial rights, or on the division between law and equity, in 1868, when the Fourteenth Amendment was ratified, not what it was in 1791 when the Seventh Amendment was ratified. Thomas is a Fourteenth Amendment case, unlike SEC v. Jarkesy, which was a Seventh Amendment case.
Accordingly, the relevant original meaning in Thomas is the original meaning of the civil jury trial right in 1868, not in 1791 as it was in Jarkesy. I know that the U.S. Supreme Court has failed to accept this principle in its incorporation caselaw, but all true originalists must concede its truth. I have no idea how many of Sam's policy concerns are alleviated by shifting the time of origin from 1791 to 1868, but I do think that is the only lawful thing for an originalist to do.
Another good friend, and esteemed former co-author, Will Baude, has a blog post up in response to Sam's. Will argues, and I agree with him, that:
[T]echnically speaking it's not that the Fourteenth Amendment mechanically incorporates the enumerated rights in Amendments 1-8, it's that both the Bill of Rights and the Fourteenth Amendment's Privileges or Immunities Clause aimed to protect a range of fundamental rights.
I think the civil jury probably was such a right. But once we see the issue through the general law lens, it's easier to remember that incorporating the fundamental right still left it open to reasonable regulations within each state. So protecting the fundamental right to a civil jury shouldn't mean, as Sam fears, locking every state "into the English division between law and equity in 1791" or detonating "a neutron bomb on the Delaware Court of Chancery."
I agree that general law "incorporated" Fourteenth Amendment rights, drawn from the first eight amendments to the federal Constitution, which are constitutionally protected vis-à-vis the States according to what they meant in 1868. I also agree with Will that such rights can be regulated under the State police power given the statement in Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D.Pa. 1823) that all federal privileges or immunities are "subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole." Reasonableness review under this language might leave some variation in how Delaware draws the law/equity line from how it might be drawn in other States. Mechanical incorporation of the Bill of Rights against the States with every right given only the meaning it had in 1791 and not in 1868 would be unwise, especially given that it's the likely outcome of the Court's agreeing to incorporate the Seventh Amendment. But that is not the sort of incorporation I mean to defend here.
Finally, the Institute for Justice has also responded to Sam Bray, and I agree with pretty much all of that response. But IJ does not comment on Will Baude's post, and that post I think contemplates a more originalist, more meaningful, and more flexible form of incorporation than is contemplated in IJ's petition for certiorari in Thomas. In any event, the Roberts' Court can certainly come up with a better reading of the relationship between the Seventh and the Fourteenth Amendments than did the White Court in Minneapolis & St. Louis R. Co. v. Bombolis (1916), which is an excellent reason to grant certiorari on Thursday, June 12th.
