Renee Lettow Lerner, George Washington University Law School, has posted two of her entries in The Heritage Guide to the Constitution, edited by Josh Blackman and John G. Malcolm (2025). The first is The Civil Jury Trial Clause of the Seventh Amendment:
This essay discusses the Civil Jury Trial Clause—also known as the Preservation Clause—of the Seventh Amendment to the U.S. Constitution. I provide background on English civil jury practice in common-law courts in the late eighteenth century and distinguish it from equity practice in the Court of Chancery. The essay describes Blackstone’s praise for the civil jury as well as the role the civil jury played in the events leading up to the American Revolution. The question of a federal constitutional right to civil jury trial provoked heated disputes in the Philadelphia Convention and the ratification debates. The ratification debates featured arguments between prominent Anti-Federalists and Federalists, including Patrick Henry and James Madison in Virginia, and Brutus and Alexander Hamilton in New York. Hamilton made his strongest case against a federal constitutional right to a civil jury in The Federalist No. 83.
The essay gives a detailed account of the drafting of the Seventh Amendment in the First Congress and the development of the historical test following opinions by Justice Joseph Story. Under the historical test, federal courts decide whether a civil jury trial is required by the Seventh Amendment based on the practices of English courts in 1791, the year the Amendment was ratified. The essay examines the difficulties in applying the historical test. These problems became especially acute after the merger of law and equity in the Federal Rules of Civil Procedure in 1938, when pretrial discovery facilitated party settlement before trial, and more complicated cases could be sent to civil juries. Courts have also struggled with applying the Seventh Amendment after the advent of adjudication by administrative agencies. The “public rights” doctrine addresses this issue, but the U.S. Supreme Court’s decision in SEC v. Jarkesy (2024) has called that doctrine’s scope into question.
The second is The Re-examination Clause of the Seventh Amendment:
This essay discusses the origins, history, and current interpretation of the Re-examination Clause of the Seventh Amendment to the U.S. Constitution. As Justice Joseph Story declared, the Re-examination Clause is separate from the right to civil jury trial in the Amendment’s Preservation Clause. The Re-examination Clause states that no fact tried by a jury shall be “re-examined” in federal court except by the rules of “the common law.” This provision had no counterpart in the state constitutions. The essay explains the methods of review of jury verdicts in English common-law courts in the late eighteenth century, focusing on the remedy of a new trial. Technically, these methods were not called appeals, although they functioned as such. The delegates to the Philadelphia Convention of 1787 assigned broad appellate review of federal and state courts to the U.S. Supreme Court, “both as to law and fact.” Many of the delegates believed such broad appellate jurisdiction was necessary to ensure uniform interpretation of federal laws and to prevent state courts, and state juries, from subverting federal law. James Madison was especially concerned about the latter problem.
The Anti-Federalists, especially Brutus, were alarmed at this grant of far-reaching appellate review to the U.S. Supreme Court. They believed such appellate review would undermine civil jury trial. The essay describes in detail James Madison’s effort to mollify the Anti-Federalists by drafting what became the Re-examination Clause, together with the modifications made in the First Congress. It explains the origins of the historical test for the Seventh Amendment in a case involving the Re-examination Clause. The historical test requires the federal courts to adhere to the practices of re-examining jury verdicts according to the common law of England in 1791, the year the Seventh Amendment was ratified. The Supreme Court had maintained a fairly strict interpretation of the historical test. Judgment notwithstanding the verdict, now known as judgment as a matter of law, was eventually permitted because of the English common-law practice of receiving a verdict subject to the judge’s opinion on law. Federal courts permit remittitur, requiring a plaintiff to agree to reduced damages or face a new trial, but not additur, requiring a defendant to agree to additional damages or face a new trial. The Supreme Court moved away from the traditional strict historical test in Gasperini v. Center for Humanities (1996), a decision that drew a strong dissent from Justice Antonin Scalia.
--Dan Ernst
