The Incorporation of the Seventh Amendment
Recently a federal district court held that the Seventh Amendment applies to that territory and to the states. While I am uncertain if this will stand up on appeal (it’s not clear that the issue need even be reached in this case), I did want to offer two thoughts about the opinion.
First, it’s disappointing (though not that surprising) that the Court said nothing about Reconstruction in its analysis. There is a lot of talk about the importance of the civil jury to the Framers, but none about how that right was seen by John Bingham and his colleagues when they ratified the Fourteenth Amendment. What that evidence would show (beyond Bingham’s view that the Seventh Amendment should be incorporated) is one thing, but to ignore it is wrong.
Second, I am unclear about how incorporating the Seventh Amendment against the States would change civil practice. (Puerto Rico has a more unusual constitution, so the impact would be greater there). In other words, to what extent can you not get a civil jury trial in a state nowadays? Granted, the Seventh Amendment’s outdated money threshold ($20) may wipe out higher amount-in-controversy requirements that states have, but otherwise would incorporation matter? As an aside, why twenty dollars? There must be a story there.