The "Appendages and Modifications" of The Civil Jury
An originalist approach to "dual-track incorporation" of the Seventh Amendment
Last week, Sam Bray offered a few skeptical observations about the incorporation of the Seventh Amendment’s right to a civil jury. As he notes there, this skepticism would be diminished if the Court were to adopt a slightly less rigid approach to what it means to incorporate the Bill of Rights.
That less rigid approach would also be a more originalist one. Consider the framework that Jud Campbell, Steve Sachs, and I describe in General Law and the Fourteenth Amendment. The reason that the Fourteenth Amendment was originally thought to effectively incorporate much of the original Bill of Rights is that the Fourteenth Amendment’s Privileges or Immunities Clause protected the general fundamental rights of American citizens. Many of these rights were also the ones specified in the Bill of Rights, precisely because they had long been regarded as fundamental. So technically 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.”
[The Court has firmly rejected “dual-track” incorporation, including most eloquently in Justice Gorsuch’s 2020 opinion in Ramos v. Louisiana. But that is because dual-track incorporation used to serve (in the 60s and 70s) as a kind of functionalist rear-guard action against either incorporation or strong interpretations of the Bill of Rights, or both. Even if the Court was right to defeat that kind of rear-guard action, the case for a this kind of originalist dual-track incorporation through the original meaning of the Privileges or Immunities Clause is stronger.]
To get a flavor of what this would mean for the civil jury right, we need look no further than our old friend, Federal Farmer. (Thanks to my co-author Jud for pointing me to this one.) At the Founding, Federal Farmer wrote:
I have already observed upon the excellency and importance of the jury trial in civil as well as in criminal causes, instead of establishing it in criminal causes only; we ought to establish it generally; — instead of the clause of forty or fifty words relative to this subject, why not use the language that has always been used in this country, and say, “the people of the United States shall always be entitled to the trial by jury.” This would shew the people still hold the right sacred, and enjoin it upon congress substantially to preserve the jury trial in all cases, according to the usage and custom of the country. I have observed before, that it is the jury trial we want; the little different appendages and modifications tacked to it in the different states, are no more than a drop in the ocean: the jury trial is a solid uniform feature in a free government; it is the substance we would save, not the little articles of form.
Perhaps it is too much to ask of current incorporation doctrine. But it seems to me that due respect for “the little different appendages and modifications . . . in the different states” and a focus on “the substance . . . not the little articles of form” would go a long way to allay the concerns that Sam describes.
