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  Granted, the Seventh Amendment’s outdated money threshold ($20) may wipe out higher amount-in-controversy requirements that states have, but otherwise would incorporation matter?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.


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3 Responses

  1. Brett Bellmore says:

    “As an aside, why twenty dollars? There must be a story there.”

    The Spanish “Dollar” was a widely used coin in international commerce at the time the Constitution was adopted. It was legal tender in the US until shortly before the Civil war. Twenty Dollars amounted to approximately an even pound of silver.

  2. Gerard Magliocca says:

    Thanks Brett.

  3. Tim moran says:

    for how the right to civil jury trials in the states at the time of the Fourteenth Amendment’s adoption see Steven G. Calebresi and Sarah E. Agudo, “Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?,” 87 Tex. L. Rev. 7. This article was cited by the majority in McDonald to support selective incorporation of the second amendment.

    As to how civil practice would be changed, incorporation would require jury trials in statutory actions unknown at common law where legal rights are determined, and where a jury is currently denied, Feltner v. Columbia Pictures Television Inc., 523 U.S. 340, 348 (1998); and it might invalidate statutory damage caps Feltner, 523 U.S., at 353-354