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

Introduction 812I. The Background of Constitutional Rights to Civil Jury Trial: Origins in Nullification 817A. State Constitutional Rights 817B. The Seventh Amendment and Nullification of a Different Sort......824n. Prominent Themes in Interpretation of Rights to Civil Jury TrialAfter the Founding Through the Early Twentieth Century .... 828A. Praise of Trial by Jury, with Qualifications 832B. Use of Flexible Originalist Tests 8361. Setting Out the Test: What Was the Time Referenced, and What Was the Law? 8362. How Much Discretion for the Legislature and Courts?.........840C. Avoiding or Controlling Jury Trial 8451. Changed Circumstances: Rising Caseloads, Greater Expense of Litigation, Inconvenience to Jurors (and, Sotto Voce, Juror Incompetence and Bias) 8462. The Fiction of Consent to Non-Jury Procedures 8503. Making a Jury Demand More Expensive: Jury Fees and Diversion to Non-Jury Proceedings with an Appeal to a Jury .... 8554. Waiver of Jury Trial 8605. Original Legal Categories: The Line Between Fact and Law .... 863EL A Cautionary Tale: An Attempt to Apply a Strict Originalist Test 870Conclusion: Implications for the Preservation of Procedural Rights 878The right of trial by jury shall remain inviolate.1Jury trials constituted 0.6% of all state court civil dispositions in 2002.2IntroductionThe U.S. Constitution3-and nearly every state constitution4-guarantees the right to civil jury trial. The right to civil jury trial has been historically, and continues to be today, praised in extravagant terms. Several state constitutions called the right "sacred."5 Lawyers and judges hailed the right as the "palladium of our rights"6 and "the most distinguishing badge of liberty,"7 among many other eulogiums. In a law review symposium in 2013, Senator Sheldon Whitehouse of Rhode Island called the civil jury "a bastion of individual rights" and "a structural element of our system of government."8 And yet, this lavish praise has coexisted with elaborate efforts to curtail the power of the jury.9 Much-lauded in the rhetoric of the legal profession, the civil jury has been much derided in practice. Today, in both the federal and state courts, civil jury trials are vanishingly rare.10How did we get here? The framers of the state and federal constitutions made every effort to prevent this outcome.11 Nearly all the constitutional guarantees of civil jury trial refer to a historical baseline, either expressly or impliedly. Many of the provisions declare that jury trial shall "remain inviolate."12 The texts seem to demand a method of interpretation that today we would call originalist. As this Article demonstrates, originalism has indeed been the method most state courts have used to interpret these provisions, from the time they were ratified.13 The historical test used by the U.S. Supreme Court to interpret the Seventh Amendment is part of this trend. Under this test, the Court has declared that the Seventh Amendment preserves the practice of trial by jury as it existed at common law in England in 1791, the date of the Amendment's ratification.14 Nevertheless, even an originalist method of interpretation has failed to protect the jury right in a form that would be recognizable to the original supporters of these provisions. This Article shows what happened and suggests why the aspiration to enshrine procedural rights in a constitution is ultimately quixotic. The U.S. Supreme Court's originalist interpretation of the Seventh Amendment has prompted many questions. …