It’s the One Between 6 & 8 (What’s wrong with the 7th Amendment)

So you think since you have no idea what the 7^th Amendment is, it must be about something boring with no controversy surrounding it? Maybe you’re right. But unlike the author of the 10 Commandments—who deserved a boring day of rest after 6 days of creation— the writers of the Bill of Rights didn’t pen a boring Amendment after the 6^th . That sounded a lot more flowing and impactful in my head. Anyway, let’s explore the 7^th Amendment, shall we?

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.

I’m not a huge fan of doing in-depth research for these Amendment arguments. I’d much rather fly by the seat of my pants. Since the 7^th hasn’t found its way into the pop culture vernacular like many of the other Amendments have, I had to do a bit of research for this one. Spoiler alert: this Amendment gets a good deal of disrespect, but it’s certainly more relevant today than the useless 3^rd Amendment. And please remember that nothing here should be taken as legal advice because law is convoluted, and I still don’t have even a decent grasp on this Amendment. But ignorance about a topic has never stopped me from writing about it before.

What I do know is that people most readily remember the beginning and end of lists, arguments, paragraphs, and—from my recent experience—Amendments. Like me, you probably noticed the term common law at each extreme. Maybe I should have already known what the term meant, but nope. As it turns out, there are two types of laws: civil law, and common law. Civil law deals with actual laws that start as bills, get debated, are voted on, etc. Basically everything we learned from the Schoolhouse Rock episode “I’m Just a Bill.” Common law, however, derives from previous opinions and interpretations from judges and juries, but hasn’t gone through all the steps to become law in the sense the average person might think of laws.

My problems with this Amendment are 3-fold. First off is the issue with common law in general. Common law leaves wiggle room for interpretation as to which previous court ruling most applies to the current case. Furthermore, common law may represent the decision of just a single judge. Civil laws, in stark contrast, are debated and voted on by the House and Senate, then signed by the President—hundreds of people take part in constructing the legislation.

Let’s take this even a step further. Supreme Court Justice Joseph Story delivered this scathing remake in his ruling on United States v. Wonson in 1812.

“Beyond all question, the common law here alluded to is not the common law of any individual state, (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence. It cannot be necessary for me to expound the grounds of this opinion, because they must be obvious to every person acquainted with the history of law.”

I certainly don’t understand early 19^th century sassiness, but this seems up there with Justice Potter Stewart’s 1964 definition of “hard-core” pornography as “I know it when I see it.”

So if I have this right, Justice Story was the first to rule that common law referenced in the 7^th Amendment refers to the common law of England. Thus, his ruling becomes an American common law that any future 7^th Amendment rulings will reference right on back to English common law. Why do we still rely on English common law at all? We fought a war to gain independence from England, yet the 7^th Amendment still links us to a nation that levied the taxation without representation we battled against. I mean, 200+ years should be long enough to enact a full complement of laws to supersede all of 18^th century English common law? Heck, given 200 years George R. R. Martin could probably even finish his A Song of Ice and Fire series.

The second problem that leaps out from a reading of the Amendment is the financial aspect. It would be ridiculous if the paltry $20 threshold were still used today. Using a handy-dandy online inflation calculator, $20 in 1772 would be about $572 today. I also learned that somehow the 7^th Amendment requires only 6 jurors for civil cases instead of the 12 used in criminal courts. The national average for juror pay is about $22 per day. Once you include pay for a couple excused jurors, a 4-day trial for a $572 litigation would cost taxpayers as much to compensate the jurors as the plaintiff stands to receive upon a favorable verdict. But still, the 7^th Amendment protects the right of a trial by jury. Seems a bit silly to me.

This eases us nicely into problem number three. The math above ends up being all for naught, because it turns out that less than 1% of non-criminal cases have a trial by jury. The vast majority are ruled on by a lone judge. Should we be able to pick and choose which parts of the Constitution we honor and which we virtually ignore? It’s one thing to amend the Constitution or repeal an Amendment, it’s another thing completely to simply pretend it doesn’t exist. Then again, imagine how unlikely it would be to pass any Amendment in today’s political climate. I can’t imagine anything so uncontroversial and bipartisan that it’d get a ⅔ vote in Congress. Can you?

So, you still think the 7^th Amendment should remain relatively unknown, boring, and uncontroversial? It may not have the relevance or cachet our forefathers believed it would when they penned it centuries ago. But I know one person who has 47 million reasons a year to be glad we don’t enforce the 7^th Amendment’s mandate of jury trials for litigations exceeding $20: Judy Sheindlin. We’ll all be a little worse off when we no longer have Judge Judy in our lives. So, I guess, yeah, come to think of it . . . You’re Probably Right.

[031] February 10, 2021