Consumer Law

Note to Congress: It's The Seventh Amendment, Stupid!

By Joe Consumer

Memo: To Speaker John Boehner and the new Congress

From: ThePopTort

Date: January 6, 2011

Re: A Constitutional History

We are thrilled about your Constitution readings (?minus the icky slavery parts?). Hopefully the next one won?t be interrupted by insane people. 

And we know the Bill of Rights counts in YOUR constitution, 'cause where would we be without the Second Amendment, right?  But ask yourself too, ?where would we be without the Seventh Amendment, the right to civil jury trial??  Actually without that one, we would not have had a constitution at all!  Say what?

That's right, in virtually every major document and speech delivered before the Revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable.

The early state constitutional drafters considered the civil jury an important instrument for the protection of individual liberties.  In fact, legal scholars believe that ?[t]he right to trial by jury was probably the only one universally secured by the first American state constitutions....?

But woops, the framers of the U.S. Constitution secured the right to jury trial in criminal cases by incorporating it directly into the main body of the Constitution. However, they did not secure the right to civil jury trial.  This mistake almost defeated the Constitution!

Thomas Jefferson criticized the document for neglecting to preserve the civil jury trial. Jefferson listed among the rights he wished had been explicitly guaranteed ?a trial by jury in all cases determinable by the laws of the land.? Jefferson later said, ?I consider [trial by jury] as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution,?and, ?Were I called upon to decide whether the people had best be omitted in the legislative or in the judiciary department, I would say it is better to leave them out of the legislative.  The execution of the laws is more important than the making of them.?

Sensing the developing controversy, which threatened ratification, federalist Alexander Hamilton devoted his longest Federalist essay, No. 83, to the civil jury trial, arguing that the constitution?s drafters did not mean to abolish civil jury trials, but rather believed legislatures could better define the right through statutes.  However, Hamilton could not quiet the critics.

Beginning with Massachusetts, which convened to discuss ratification in February 1788, states began asking Congress to make certain changes to the constitution ?to remove the fears and quiet the apprehensions? of the people.  In addition to expressing fear of Congress?s power to levy direct taxes, Massachusetts, for example, wanted three amendments: grand jury indictment, civil jury trial and a declaration reserving to the states all powers not expressly delegated to Congress.

In 1791, during its first session, Congress fixed these problems by drafting the Bill of Rights, ratified as the first ten amendments to the Constitution, securing the right to civil jury trial in the Seventh Amendment.

Phew!  (Read more from the Center for Justice & Democracy here.)

Full post as published by ThePopTort on January 06, 2011 (boomark / email).