As I’m still going through the proofs of my book and trying to complete my reapportionment paper, let’s still with offbeat posts for the time being.
The Seventh Amendment is among the few that the Supreme Court has not extended to the states. Suppose, though, that at some point the Seventh Amendment is incorporated. This provision refers twice to the common law (the only part of the Constitution does):
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 reexamined in any court of the United States, than according to the rules of the common law.
Does this mean that the Seventh Amendment could not be extended to Louisiana? Louisiana, after all, has a civil law system. (No state in 1791 used civil rather the common law.) Would Louisiana have to switch to common law? Or would we undertake a more practical interpretation of common law to mean “certain types of actions” or “certain standards of appellate review of facts?”