Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Amendment VII:

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.

Right to Trial by Jury in Civil Cases

No one likes jury duty. When the summons arrives in the mail, most Americans look to check the box that gets them out of service. Why lose a day of work to spend a day deciding some dispute about a fence or a car accident?

Far from a wasted day,  Alexis de Tocqueville praised the jury service in Democracy in America “as a school, free of charge and always open, where each juror comes to be instructed on his rights, where he enters into daily communication with the most instructed and most enlightened members of the elevated classes, where the laws are taught to him a practical manner and are put within reach within his intelligence by the efforts of the attorneys, the advice of the judge, and they very passions of the parties.” Indeed, de Tocqueville attributes Americans’ “practical intelligence and good political sense” to their maintenance of the civil jury.

At the Constitutional Convention, Hugh Williamson argued that the right to jury in civil trials should be included in the Constitution. Two delegates moved to insert the sentence “And a trial by jury shall be preserved as usual in civil cases” in Article III, but the Convention rejected this wording and did not include it in the Constitution.

Its absence proved to be a grave political miscalculation. The lack of a specific protection the right to trial by jury in civil cases accounted for the greatest opposition to the Constitution. The Anti-Federalists suggested that the absence meant that the right to trial by jury in civil cases would be abolished. The Federalists defended the omission by arguing that Congress, not the Constitution, should determine the rules for civil cases. But, this was a weak argument for two reasons. First, twelve of the states’ constitutions protected the right to trial by jury in civil cases. Second, during the American Revolution, the colonists objected that Parliament had deprived them of their right to trial by jury. It’s no surprise then that Congress passed the Seventh Amendment guaranteeing the right to trial by jury in civil cases without debate.

Justice Joseph Story argued in Parsons v. Bedford (1830) that the Seventh Amendment applied to all suits except suits of equity and admiralty. The Supreme Court, however, ultimately developed a more limited interpretation. The Court argued that the clause applies to the kinds of cases that existed under English Common Law when the amendment was adopted. The Seventh Amendment does not apply to civil cases that are “suits at common law.” It also does not apply to cases when “public” or governmental rights are at issue or when there are no analogous historical cases with juries. Personal and property claims against the United States by Congress do not require juries. Parties can waive the right to a jury in civil trials. Unlike in 1791, jury trials for civil cases no longer require a unanimous verdict from a 12-person jury.

In contrast to broad support for the right to trial by jury in the 18th century, modern jurists do not see the right to jury in civil trials as fundamental to the U.S. legal system. This explains why, unlike the Sixth Amendment’s protection of the right to trial in criminal cases, the Right to Jury in Civil Cases Clause is not incorporated against the states. Unlike the Sixth Amendment, the Seventh Amendment applies only in federal courts. The Seventh Amendment joins the Second Amendment and the Grand Jury Clause as the few parts of the Bill of Rights that the Supreme Court has not incorporated against the states.

When that jury summons arrives in the mail, we should think about service not as a wasted day but as an opportunity to participate in the justice system and to gain a deeper understanding of our rights. As Tocqueville remarked that serving on a civil jury “teaches men the practice of equity. Each, in judging his neighbor, thinks that he could be judged in turn. That is above all true of the jury in a civil matter; there is almost no one who fears being the object of a criminal persecution one day; but everyone can have a lawsuit.”

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

April 2, 2012 

Essay #31 

6 replies
  1. says:

    Thank you, Marc! We posted your comment on the Constituting America Facebook Page! Thank you for your insightful comments!

  2. barb Zakszewski
    barb Zakszewski says:

    Having sat on a jury twice, I can say what an awsome and at the same time frightening responsibility it truly is. Both times, my fellow jurors and myself took this responsibility that we were handed very seriously. Because both of the trials were criminal trials, we were well aware of the axiom “beyond a reasonable doubt.” at the one trial, all of us were fairly certain of the defendent’s guilt, but because we could not say with absolute certainty he was guilty, we had to come back with a “not guilty” verdict. I will never forget that responsibility and privelege.. If anyone does get a jury summons, they should read the essay above first, before deciding which excuse to use.

  3. Linda & Halley
    Linda & Halley says:

    Believe it or not, after 39 years of voting, I have never been called for jury duty! Yes, I get the card and always the day prior, my number does not get called for actual jury duty, but I agree it is a privilege.

    Halley: “Hey! Let’s hear it, for Amendment Seven. Trial by jury, and it’s final unto heaven!!”

  4. Susan Currie
    Susan Currie says:

    Great information on the civic responsibility of Jury Duty and its importance to our Justice System!! Thank you!

  5. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The 1670 Buschel’s case, where William Penn was prosecuted for preaching and disturbing the peace, the jury refused to give a guilty verdict the court wanted and acquitted on account that the law was unjust. Four members of that jury was imprisoned for three days and fined by the court. Another judge then ordered the release of the jury on account that juries cannot be punished for their verdict no matter what their decision. This was the milestone case of jury nullification in England and become part of the Common Law. James Madison even cited his case when deliberating the wording of the Bill of Rights.

    John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789: “The jury has the right to judge both the law as well as the fact in controversy.” Samuel Chase, U. S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: “The jury has the right to determine both the law and the facts. ” U. S. Supreme Court Justice Oliver Wendell Holmes said in 1902: “The jury has the power to bring a verdict in the teeth of both law and fact.” Harlan F. Stone, the 12th Chief Justice of the U. S. Supreme Court, stated in 1941: “The law itself is on trial quite as much as the cause which is to be decided.”

    Chief Justice John Jay in the Georgia v. Brailsford 1794 case stated:

    “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy.”

    In his 1805 impeachment trial, one of the charges against Justice Samuel Chase was that he wrongly prevented a lawyer from arguing to a jury that the law should not be followed.

    In 1895 in Sparf v. United States, the Court said that courts need not inform jurors of their de facto right of juror nullification although jurors’ inherent right to judge the law remained unchallenged. This change in practice, forbidding the court or even the defense attorney of informing the right of jury nullification to the jury, as well as another new practice of excluding evidentiary hearings from the jury, has led to an in absentia denial of the right of a jury to question the law.


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