Total Incorporation and Small Claims

by Gerard Magliocca · November 30, 2018

I was thinking the other day about the consequences of incorporating the remainder of the Bill of Rights. Take the Seventh Amendment, which remains unincorporated. If that is applied to the states, then would that not mean that most of the small claims courts in this country would be illegal? The Seventh Amendment says (at least under the Court’s current view) that there is a civil jury trial right in cases involving more than $20. Small claims courts, of course, have no juries. And I think that most, if not all, states, require that claims under a certain amount must be heard there.

Brett Bellmore says:

November 30, 2018 at 4:09 pm

Arguably you could adjust that for inflation. That would make the Seventh amendment threshold about $530 right now, not quite such an impractical number.

Reply
Joe says:

November 30, 2018 at 5:36 pm

How do the federal areas covered handle small claims?

Reply
Henry Cohen says:

November 30, 2018 at 10:24 pm

I believe that we would need a formal constitutional amendment to increase the $20 threshold in the 7th Amendment. Much of the Constitution consists of general concepts, such as due process, equal protection, and cruel and unusual punishment, and, as Ronald Dworkin observed, although we are bound to apply those concepts, we are not bound by the framers’ conceptions of them. A few constitutional provisions, by contrast, are specific conceptions, to use Dworkin’s word, and continue to bind us. These include the $20 threshold in the 7th Amendment, and the requirement in Article II that the President be at least 35 years old. If we could adjust the $20 for inflation, then perhaps we could increase the 35-years requirement because of the increase in life span since 1787. A 35-year-old person then was comparatively more advanced in age than he or she is now.

Reply
- Brett Bellmore says:
  
  December 1, 2018 at 7:40 am
  
  You’re assuming that “dollar” didn’t have a known meaning at the time the Constitution was written, that it’s just the arbitrary name of our currency, which could have any value. But if that were so, it would have been strange to have used it this way.
  
  In fact, the “dollar” was a famous and widely used Spanish coin consisting of a fixed weight of silver. The word thus had a long established meaning independent of the Constitution. The Court could just rule that it still has that meaning, and peg the 7th amendment threshold to a fixed weight of silver, as had been the intent of the 7th amendment.
  
  Reply
Stefan Privin says:

December 1, 2018 at 11:21 am

If a Seventh Amendment incorporation case made its way to the Supreme Court, the Justices would have a very hard time justifying not incorporating the amendment.

Reply
- Henry Cohen says:
  
  December 1, 2018 at 5:30 pm
  
  I don’t find your assertion, without an argument, persuasive, particularly because you ignore Gerard’s point about small claims courts. Do you think that the justices would be willing to destroy them, which I imagine that requiring them to offer jury trials would do?
  
  Reply