GW Law Faculty Publications & Other Works
Document Type
Article
Publication Date
2025
Status
Accepted
Abstract
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.
GW Paper Series
2025-53
SSRN Link
https://ssrn.com/abstract=5575355
Recommended Citation
Renée Lettow Lerner, The Civil Jury Trial Clause of the Seventh Amendment, in The Heritage Guide to the Constitution 682 (Josh Blackmun & John G. Malcolm eds., 3d ed. 2025)