Guest Essayist: Kelly Shackelford, President/CEO of the Liberty Institute

Federalist 83, written by Alexander Hamilton and published in July of 1788, singles out opposition to the new Constitution due to the lack of a clause requiring jury trials in civil cases.  At the time, some opponents claimed that the Constitution’s notable silence on the issue meant that the use of a jury was abolished in civil cases, while extreme opponents argued that trial by jury in criminal cases was prohibited, which is quickly corrected in Federalist 83.  In this Paper, Hamilton shows the difficulty of inserting a phrase affirming juries in civil cases into the Constitution and that a jury is not beneficial in every situation.

From the beginning, the Constitution mandated jury trials in criminal cases (Article II, Section 2: “The trial of all Crimes… shall be by Jury…”), though it was silent on civil cases.  There was no significant opposition to this, as it was commonly agreed that juries in criminal cases provided, at the very least, an important “safeguard to liberty,” since they protect citizens against arbitrary rulings and “judicial despotism.”

However, opponents of the Constitution used old legal maxims in an attempt to prove that the Constitution’s silence implied prohibition of juries in civil cases.  One phrase that Hamilton mentions is: “’The expression of one thing is the exclusion of another.’”  Hamilton pointed out that the phrase was taken out of context and that applying it to this particular situation forgets the common sense our judicial system was built upon.  This common sense, as understood in the legal system, would say that giving a constitutional mandate for a jury trial in criminal proceedings does not deprive the people (or the legislative power) of the ability to call for a jury in civil cases.

Following Hamilton’s refutation of the assertion that the Constitution abolishes jury trials in civil cases, he shifts to his main arguments.  The most important point Hamilton makes about the non-necessity of a clause regarding trial by jury in civil cases is that the Constitution does not alter the way states use the institution of the jury.  Even today, each state has its own court system, and different courts to deal with certain kinds of issues (for example, the state of Texas has two Supreme Courts – one for civil cases and one for criminal, while other states just have one Supreme Court).  While some of the states’ court systems bore similarities, they were all distinctly different. Until the Constitution, each state had run independently and developed systems of state government.  This was important because prior to the ratification of the Constitution, the U.S. was governed by the Articles of Confederation which gave the federal government almost no authority except in issues of foreign relations and war. While the need for a stronger federal government was apparent, tensions arose over the tradeoff between decreased states rights’ and increased federal powers.

Even so, two states offered propositions affirming jury trials in civil cases for addition to the Constitution.  The first proposition, brought by Pennsylvania, reads: “’Trial by jury shall be as heretofore.’”  However, before the Constitution, the federal government had no judicial power, so to say that the institution of trial by jury should remain as it was previously meant precisely nothing.

The proposition from the Massachusetts convention says, “’In civil actions between citizens of different States, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it.’”  According to Hamilton, this suggestion infers that among civil cases only those dealing with common law merit a jury trial.  Hamilton notes that if that was not Massachusetts’ intention and the convention believes there to be other cases which call for a jury but chose not to incorporate, then it proves his point on the difficulty of addressing the issue in the Constitution.

Propositions like these demonstrated the difficulty of inserting into the Constitution a clause providing for jury trials in civil proceedings that would have broad approval.  Since each state had its own legal system, states would be forced to change in order to comply with the Constitution or, put simply, confusion would erupt.  If a clause was added, it would probably codify the court system of one state, while many of the other states would have to change their systems extensively to be in compliance, which would surely inspire “jealousy and disgust.”

Hamilton, though, does not merely encourage opponents to support the Constitution as is because it is so difficult to insert a jury clause on civil cases; he argues that a jury isn’t always needed, and is sometimes even detrimental.  In some cases, intricate knowledge of the law is required to make a good decision, such as those that call into question foreign relations and equity, or fairness in the law.  Ultimately, juries cannot be expected to have an in-depth understanding of complex areas of the law and apply it correctly.  And since juries consist of citizens who lose time from their jobs, they also cannot be expected to sit on a jury for an extended period of time.  While juries are crucial in criminal cases, Hamilton finds that in civil cases their only benefit comes in “circumstances foreign to the preservation of liberty.”

All citizens now have the right to a jury trial, though they can waive the jury.  Some civil cases never have a jury trial, because juries are only needed in cases where the facts are in dispute.  The Seventh Amendment to the Constitution affirms citizens’ right to a jury trial in cases of common law, which modified and clarified the existing system.

Today, we can look back to our founding documents, such as the Constitution, and see how the Framers diligently strove to preserve the liberty that a jury trial system provides.  Only a handful of countries guarantee their citizens the right to a jury in all cases, including civil proceedings.  The rest prefer that only judges make decisions, which lends itself to elitism and, as Hamilton noted, to corruption.  The American system put forth in the Constitution truly seeks to protect everyday citizens and keeps the power in the hands of the people, which is yet another reason this country is so free.

Friday, August 20th, 2010

Kelly Shackelford, President/CEO of Liberty Institute, is a constitutional scholar who has argued before the U.S. Supreme Court and other courts across the country and has testified before both houses of the U.S. Congress.  Jennifer Grisham is director of media at Liberty Institute.  The Institute fights for First Amendment and Constitutional freedoms in the courts and legislature, has won significant landmark victories on religious liberty, and currently represents over 4 million veterans and all the major veterans’ groups in the famous Mojave Desert Memorial Cross case.  For more, visit


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