Originalism and the Seventh Amendment

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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13 Responses

  1. Shag from Brookline says:

    If $20.00 is not hardwired, what about ages for elective offices? Of course the 7A did not apply to the states until the 14A came along, and even thereafter questions have been raised as to the incorporation of at least parts of the 7A. As to:

    ” In case after case, the Court has said that the text must be read ‘to preserve the right of jury trial as it existed in 1791.’ This is not, of course, the only possible view. One could construe common law to mean ‘what the common law provides now.’”

    are changes in the common law since 1791 to be ignored in deciding a case today? And if there is no federal common law, is the 7A talking about the common law of a particular state as it existed in 1791 in a matter before a federal court? And what about statutory law? The “new originalism” might look upon this as a matter of construction rather than interpretation. Of course, not all originalists are followers of the “new originalism.”

    As to the states since the 14A, consider John Bingham’s statements about the application/incorporation of the first 8 Amendments of the Bill of Rights.

  2. Kent says:

    Is it correct to say that the interpretation of the Seventh Amendment “to preserve the right of jury trial as it existed in 1791” indicates that a right to a jury trial existed prior to 1791 and that the Seventh Amendment is merely a codification of that right? Even the text of them Amendment uses the word “preserve” which would seem to indicate something already existed.

    If that’s the case you could say that “to preserve the right of jury trial as it existed in 1791″ is not a endorsement of originalism but merely another way to say that “the Constitution didn’t create a new right here” so we need to use the right as it existed in 1791 as a starting point. The starting point at which we begin to apply either our originalist or non-originalist interpretations.

  3. Brett Bellmore says:

    $20 wasn’t really a random number. At the time, a “dollar” was a standard and respected coin, when not shaved, it was one twentieth of an ounce of gold. The Coinage act of 1792 defined the US dollar as that amount of gold, and that definition stuck until the 1930’s.

    So, what they were saying was, an ounce of gold. That is simply what “twenty dollars” meant at the time. Which was as reasonable an even number as any. It seems rather arbitrary and small now just because we switched over to a fiat currency, and inflated the heck out of it. But a perfectly reasonable originalist reading of the clause would peg that to one ounce of gold even today.

    But, why stick with it? Because it’s a number, and you’ve got to be pretty nervy to claim that an integer is “vague”, even if you’re a living constitutionalist.

  4. Joe says:

    ‘what they were saying was, an ounce of gold’

    They didn’t actually say that though. They said “$20.” If they wanted to say “what an ounce of gold is valued at now,” they could have. They knew about the flexibility of gold rates, including (to those historically informed) the struggles of the Spanish Empire as new discoveries altered the value of gold. A currency amount is not some fixed number in real terms. It would make more sense not to cite some artificial number though we can still work off it — e.g., say it is $20 in “today’s dollars” or something. But, that is analysis. The bare text doesn’t tell us why.

    The House originally agreed to a text w/o that figure. The Senate added the $20. Why is not clear — http://www.law.cornell.edu/anncon/html/amdt7frag1_user.html#amdt7_hd4 — though Brett cites a possible scenario of why the figure was seen are a sound minimum. The OP didn’t say “why stick with it” — it wondered why it was chosen. It didn’t say it was ‘vague’ though WHY it was chosen again isn’t clear. That’s supposition whatever you are.

  5. brad says:

    Even if the rule were an ounce of gold, around $1250, it’d still be very low. It makes no sense to drag a jury in and have them all miss a day of work for a controversy over $1250.

    • Brett Bellmore says:

      For most people, $1250 is a serious hunk of change.

      • brad says:

        Be that as it may, the costs to third parties are higher to have even a short jury trial. Also, it’d be near impossible to come out ahead on legal fees even if you win.

        Heck, plenty of potential litigants find it worth it to settle objectively weak cases for hundred of thousands of dollars to avoid litigation.

        Perhaps the civil system was more efficient in the late 18th century.

        • Brett Bellmore says:

          It isn’t the fault of the person being hauled into court that the government has decided to only nominally compensate jurors.

  6. Joe says:

    I looked into the Twenty Dollar Clause a bit and “ounce of gold” was not mentioned in the few articles I saw.

    For example, Philip Hamburger in an article argues that it very well might be that the Founders realized that the amount would eventually become pretty much obsolete with inflation, but it was an acceptable figure given the time. Compare, e.g., the $10 amount cited in Art. 1, sec. 9 as the per capita limit of taxing what clearly concerns slave imports. A Harvard Review article concludes it is just not clear why the amount was included as a Senate amendment to the text though argues that my “keep the amount but use current dollars” approach is not what they had in mind, providing an example of a state that used alternative language when it wanted to do that. I think that’s assumption, but it’s possible.

    CAPITAL TRACTION CO. v. HOF (1899) discusses the history of the 7A some and cites some limits of the times. For instance, a state placed a $15 limit. Another state at one point had a $50 minimum. So, $20 might have been a reasonable compromise. The relation to what gold was set by Congress (as it had the power to regulate — it had the power to change the amount too) is noted. But, it is unclear that it would be “originalist” to “peg that to one ounce of gold.” Another provision said that states could only tender silver or gold for payment in debts. Such a specific limitation is notable. No talk of that here. Just “dollars.” Which could be pegged to gold, silver or something else for all we know. Since there is no limit provided, as compared to the state control, in fact, it seems “originalist” to assume flexibility.

  7. Shag from Brookline says:

    Joe’s:

    “in fact, it seems ‘originalist’ to assume flexibility.”

    may be “tongue-in-cheek originalism” (aka “yoga originalism”) to be addes to Jack Balkin’s list in his “Why Are Americans Originalists?” @ p. 21:

    “There are multiple schools and flavors of originalism. They include original intention, original understanding and and original public meaning originalism, strong originalism, weak originalism, abstract originalism, moderate originalism, originalism as translation, the New Originalism, the New New Originalism, living originalism, and the list goes on.” [A link to Jack's article is available at Larry Solum's Legal Theory Blog.]

    • Joe says:

      Not quite my intention but originalism does bring to mind Whitman: “Do I contradict myself? Very well, then I contradict myself, I am large, I contain multitudes.” Brett Bellmore thinks Balkin’s “originalism” is parody. I think not. I think it shows the plastic nature of it all. Originalism seems to have as many sects as Christianity at times.

  8. Shag from Brookline says:

    Here’s an item at VC:

    “Originalists don’t agree on when to extend a precedent or when to limit it. But that’s okay. Originalism is a big tent.
    By Will Baude”

    Barnum & Bailey also has a big tent. I did not note any reference in the full post to “a big tent.” Perhaps this was the bait to link to the full post. Apparently not all of the VCers are originalists, especially David Bernstein. But those who are originalists at VC may not wish to identify their respective versions of originalism. I’m not aware of “libertarian originalism” to add to Jack Balkin’s list. Jack describes himself as a “thin originalist.” The WaPo venue for VC may provide for “originalism proselytizing.” Witness Ilya Somin’s feeble challenge of Jack Balkin’s paper by stressing an 1824 quote from James Madison in the nature of “law office history,” perhaps to convince the politically ignorant. With Barnum & Bailey’s big tent, we know who are the clowns and who are the high wire acts.

  9. Shag from Brookline says:

    Over at the VC David Bernstein continues his “debate” with Will Baude on originalism. While DB doesn’t specifically mention his “Rehabilitating Lochner,” he alludes to a sort of originalism in those days based upon the 14A and its natural law implications supporting the Lochner Court. I await Baude’s response and Eric Posner’s next blog post on the course on originalism jointly taught by Posner and Baude.