Originalism and the Seventh Amendment
The Seventh Amendment states:
“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.”
Before getting to the substance of the post, I must say that this is one instance where Madison and the First Congress were not foresighted. $20? Why pick that number? It has the ring of a tired compromise made late at night.
Anyway, what I want to bring up is that the Supreme Court reads the Seventh Amendment in an originalist way that takes a relatively narrow view of that idea. In case after case, the Court has said that the text must be read “to preserve the right of jury trial as it existed in 1791.” This is not, of course, the only possible view. One could construe common law to mean “what the common law provides now.”
I’ve always thought that the Seventh Amendment poses problems for originalists and non-originalists. Let’s start with the non-originalists. Presumably, they should think the Court’s view is incorrect. Why is part of the Bill of Rights restricted to applications in 1791? When I ask non originalists about this, what I generally get is “The Seventh Amendment is not a big deal.” That’s not a great answer though. Don’t non-originalists have to deal with settled contrary precedents? On the other hand, originalists face a related problem. If I said that the First Amendment protected the right of free speech as it existed in 1791, that would be rejected by almost everyone (including originalists). Why is that the case? Is Seventh Amendment originalism the wrong kind?