The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial

71 Pages Posted: 19 Oct 2014

See all articles by Renee Lettow Lerner

Renee Lettow Lerner

George Washington University Law School

Date Written: October 17, 2014


The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.

Keywords: Seventh Amendment; civil jury trial; constitutional rights to civil jury trial; state constitutional rights; jury nullification; originalism; originalist interpretation; historical test; jury fees; summary proceedings; waiver of jury trial; legal history; line between fact and law; Slocum v. New Yor

JEL Classification: K00, K10, K19, K40, K41, K49, N40, N41, H00, H10, H11, H19, H40, H41, H70, H72, H50, H54, B13, B15

Suggested Citation

Lerner, Renee Lettow, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial (October 17, 2014). William & Mary Bill of Rights, Vol. 28, p. 811, 2014, GWU Law School Public Law Research Paper No. 2014-52, GWU Legal Studies Research Paper No. 2014-52, Available at SSRN:

Renee Lettow Lerner (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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