Should the Seventh Amendment Civil Jury Trial Right Apply to the States?
This coming Thursday, June 12th, the Court will decide whether to grant certiorari (or whether to request a response) to the Institute for Justice’s petition for certiorari in Thomas v. County of Humboldt, a case which asks the Court to incorporate the Seventh Amendment civil jury trial right through the Fourteenth Amendment against the States.
The Bill of Rights was originally enacted in 1791 to constrain Congress; protections against state overreach were left to state constitutions. But the Fourteenth Amendment was created to provide federal protection against state power; and since the Civil War, the Court has held (through a process called “incorporation”) that nearly all the Bill of Rights applies to the states via the Fourteenth Amendment.
The right to civil jury trial was among the three civil rights most deeply rooted in American history and tradition at the time of the framing of the federal Bill of Rights along with the right to criminal jury trial and the right to the free exercise of religion. The right is by far and away the most important right in the Bill of Rights that has not yet been incorporated; the other two unincorporated rights are the Third Amendment’s protection against the quartering of soldiers in peoples’ homes (a practice that no longer happens) and the right to indictment by a grand jury (which is meaningless since prosecutors can persuade grand juries to indict even “a ham sandwich“).
Cases like Thomas v. County of Humboldt, which involve a dispute between the government and a private citizen, where petitioners are challenging millions of dollars of fines assessed against impoverished litigants in administrative proceedings by the government with no right to a civil jury trial, show that incorporation of the Seventh Amendment is as urgent as was incorporation of the Excessive Fines Clause in Timbs v. Indiana, 586 U.S. 146 (2019). As the Supreme Court held last year in SEC v. Jarkesy, 603 U.S. 109 (2024) (requiring the SEC to litigate fraud cases in federal district court with a Seventh Amendment right to a civil jury trial), “[t]he right to trial by jury is ‘of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right’ has always been and ‘should be scrutinized with the utmost care.'” Id. at 121. A continuing failure by the Supreme Court to incorporate the civil jury trial right against the States would thus be an embarrassing omission from the Court’s caselaw given that this right is even more deeply rooted in American history and tradition than are almost any other right including especially the right to own a gun for one’s own self-defense.
The Thomas case seeks to change that, and I think the Court should agree on this with the petitioners.
In 2010, the Supreme Court correctly incorporated the Second Amendment’s right to own a gun for one’s own self-defense in McDonald v. City of Chicago, 561 U.S. 742 (2010) on a five to four vote. The Court held correctly that the right to own a gun for one’s self-defense was a right that was deeply rooted in American history and tradition following Washington v. Glucksberg, 521 U.S. 702 (1997). Accord, Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) (abortion rights are not deeply rooted in history and tradition).
In McDonald, the Court observed that 22 States out of 37 States in 1868, when the Fourteenth Amendment was ratified, protected the right to keep and bear arms in their State Bills of Rights, i.e. 59% of the States at that time. Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition? 87 Texas L. Rev. 7, 50-55 (2008). Sixty-one percent of the American people lived in those States in 1868—a sizable super-majority. Id. at 50. Based on this, and other evidence, the Court rightly concluded that the right to own a gun for one’s own self-defense was very deeply rooted in American history and tradition. The Court reached this correct outcome even though in 1791, when the federal Bill of Rights was ratified, only 5 States out of 12 that had written constitutions and Bills of Rights protected gun rights. Steven G. Calabresi, Sarah E. Agudo, and Kathryn L. Dore, State Bills of Rights in 1787 and 1791: What Individual Rights are Really Deeply Rooted in American History and Tradition?, 85 Southern California Law Review 1451, 1485-1487 (2012).
But when it comes to the Seventh Amendment, 36 out of 37 State Constitutions in 1868, guaranteed the right to jury trials in all civil or common law cases. Calabresi & Agudo, supra at 77-78. “Fully 98% of all Americans in 1868 lived in jurisdictions where they had a fundamental state constitutional law right to jury trial in all civil or common law cases.” Id. at 77. The lone State in the Union not to recognize a right to civil jury trial in 1868 was Louisiana, which because of its French and Spanish roots in the civil law tradition found there to be no right to civil jury trial; in this, Louisiana diverged from all other states’ common law tradition, which recognizes such a ri
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