Wanling Su, Indiana University Bloomington, and Rahul Goravara, Georgetown University Law Center, have posted What is a Jury? which is forthcoming in the North Carolina Law Review:
The Supreme Court has held that the Seventh Amendment “preserves” the right to a civil jury as it existed when the Amendment was adopted in 1791. This “historical test” has become a hallmark of Seventh Amendment doctrine, but also, at times, a source of frustration. In one instance, the vexed Court has thrown up its hands and given up on the historical test entirely. Despite its best efforts, the Court has not been able to determine based on the historical record available whether the Framers intended to preserve the right to twelve jurors, or if a smaller number would suffice.
Although twelve was likely the usual number in 1791, its prevalence, in the Court’s words, could very well have been an “accidental feature of the jury.” The Court held that “forever codifying” the right to twelve jurors “would require considerably more evidence than we have been able to discover in the history and language of the Constitution.” This Article scours ratifying convention records, contemporaneous treatises, Founding-era legal dictionaries, early precedents, and archival records from the private libraries of the Seventh Amendment’s drafters in search of evidence that may shed light on their intentions and the Amendment’s public meaning at ratification.
Perhaps most informative, however, is what the Framers did not consider a jury. As this Article chronicles, Carolina slave courts denied enslaved people constitutional and common law rights, but nevertheless offered accused slaves as many as five jurors in what were described as “non-jury” trials. By offering a careful and comprehensive look at what the drafters did not consider a jury, as well as at the events, early precedents, and writings that inspired the Seventh Amendment, this Article corrects the Court’s misperception that the Founding-era practice of impaneling twelve jurors was mere happenstance.
--Dan Ernst
