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The Seventh Amendment (Amendment VII) of the United States Constitution, which is part of the Bill of Rights, codifies the right to a jury trial in certain civil trials. Unlike most of the Bill of Rights, the Supreme Court has not incorporated the amendment's requirements to the states under the Fourteenth Amendment.



In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

History and Development

Prior to the Glorious Revolution of 1688, English judges had been "lions under the throne," servile creatures of the King. As English judges held their sinecures at pleasure of the King, they were highly motivated to place their fingers on the scales of justice for benefit of the King. As such, the jury was an essential countervailing force against tyranny, insofar as the jury had every right to ‘go rogue,’ thwarting even the will of the King. Blackstone wrote that it was “the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.” [1]

Whereas English judges won their independence from the Crown in Act of Settlement 1701, American colonial judges served at the pleasure of the King. King George III abolished trial by jury in the Colonies, one of the main grievances precipitating the American Revolution. As America's Founding Fathers shared a perfect horror at the concept of arbitrary courts of justice, such as those “of [King] Philip in the Netherlands, in which life and property were daily confiscated without a jury, and which occasioned as much misery and a more rapid depopulation of the province,” [2], they incorporated the right to trial by jury into the Bill of Rights, thereby removing what soon-to-be United States Supreme Court Justice James Iredell described as that "noble palladium of liberty"[3] from the reach of future legislators.

“The right of trial by Jury is a fundamental law, made sacred by the Constitution, and cannot be legislated away.” [4] According to Senator Richard Henry Lee [5], the primary purpose of the trial by jury in America was to protect the public from corrupt or aristocratic judges:

The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely intrusted to the magistracy,--a select body of men, and those generally selected, by the prince, of such as enjoy the highest offices of the state,--these decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is not to be expected from human nature, that the few should always be attentive to the good of the many." The learned judge further says, that "every tribunal, selected for the decision of facts, is a step towards establishing aristocracy--the most oppressive of all governments." [6]

Judicial Interpretation of the Amendment

The Framers intended to preserve the trial by jury as it existed in England,[7] as a check on potential abuse of power by the government.[8] John Adams explains:

As the Constitution requires that the popular branch of the legislature should have an absolute check, so as to put a peremptory negative upon every act of the government, it requires that the common people, should have as complete a control, as decisive a negative, in every judgment of a court of judicature.[9]

The fatal debauchment of the Seventh Amendment occurred in an obscure case styled United States v. Callender[15], presided over by Justice Samuel Chase while riding circuit. In his decision, Chase argued:

It must be evident, that decisions in the district or circuit courts of the United States will be uniform, or they will become so by the revision and correction of the supreme court; and thereby the same principles will pervade all the Union; but the opinions of petit juries will very probably be different in different states. [10]

Uncertainty in the law is a serious problem, insofar as the published precedent of courts in a common law system is supposed to constitute "a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise." [11] But whereas the runaway jury poses a clear and present danger to that reliance interest, the runaway judge poses an even greater peril. As Thomas Jefferson explains,

[w]e all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does. It is left therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges; and by the exercise of this power they have been the firmest bulwarks of English liberty. [12]

In historical context, and in the face of Jefferson's observations, Justice Chase’s anticipatory response to Jefferson's criticism bordered on intentional satire:

No position can be more clear than that all the federal judges are bound by the solemn obligation of religion, to regulate their decisions agreeably to the constitution of the United States, and that it is the standard of their determination in all cases that come before them. ... The decision of courts of justice will not be influenced by political and local principles, and prejudices. If inferior courts commit error, it may be rectified; but if juries make mistakes, there can be no revision or control over their verdicts, and therefore, there can be no mode to obtain uniformity in their decisions. Besides, petit juries are under no obligation by the terms of their oath, to decide the constitutionality of any law; their determination, therefore, will be extra judicial. I should also imagine, that no jury would wish to have a right to determine such great, important, and difficult questions; and I hope no jury can be found, who will exercise the power desired over the statutes of congress, against the opinion of the federal courts. [13]

Justice Chase never explained why unelected, unaccountable, and easily-corrupted federal judges could somehow be trusted to honor their oaths, whereas jurors -- who had no interest in the outcome of the case and took similar oaths[14] -- could not. This glaring lapse in logic was underscored be the historical irony that Chase himself was impeached for his conduct in that trial, which the House alleged as being “marked, during the whole course of the said trial, by manifest injustice, partiality, and intemperance.”[15]

Criticism of Callender and the Resulting Doctrine of Judicial Supremacy

Justice Chase was an unabashed oligarch, repulsed by the concept that all men are equal before the law. In his view, "the modern doctrines by our late reformers [i.o.w., the Jeffersonian Democrats], that all men, in a state of society, are entitled to enjoy equal liberty and equal rights, have brought this mighty mischief upon us; and I fear that it will rapidly progress, until peace and order, freedom and prosperity, shall be destroyed."[16] For this reason, it can be argued that that he consciously indulged in judicial activism to further his political views. More importantly, the practical ramifications of the Callender decision are felt keenly today.

Whereas colonial judges routinely instructed jurors that they were the ultimate arbiters of both fact and law,[17] the modern judge asserts almost an plenary control over the evidence, law, and facts, instructing the jury as to what the law is,[18] and even overturning civil jury decisions outright.[19] Federal judges have arrogated power to declare "what the law is," [20] thereby establishing an effective veto power not only over Congress, but the Constitution itself. Pursuant to that ostensible authority, the United States Supreme Court has rewritten the Eleventh Amendment, [21] disemboweled the Fourteenth Amendment,[22] rendered treaties unenforceable,[23] and in substance, has made the entire Bill of Rights unenforceable. Simply put, under the Constitution as written by the American judiciary, both federal and state governments are immune from suit for intentional and unlawful invasions of individual rights by their authorized agents (whether they were created by Congress or acknowledged under the Bill of Rights),[24], and many of the agents themselves enjoy absolute immunity from suit.[25]

In the final analysis, the United States has a beautifully written Constitution, but no practical way to enforce it. Judge Robert Bork has observed that the erstwhile Republic once known as the United States of America is now a regime, governed by a "judicial oligarchy," [26] brought about by what he described as a "judicial coup d’êtat." [27] Whereas the English common law was built on the single incorrigible concept that if a subject enjoys a "right," he must by "necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal,"[28] it is difficult to see how the United States citizen enjoys any bona fide rights at all.

Re-examination of facts

Even where a statement of fact is in dispute and tried before a jury, the judge has a role in deciding the verdict. The Supreme Court has held that judges may opine on the facts in dispute, provided that the jury actually determines the dispute; may direct the jury to pay special attention to certain evidence; and may require the jury to answer specific questions about the case in addition to giving a verdict. If the judge considers the plaintiff's evidence insufficient, the judge may direct the jury to find in the defendant's favor.

As common law provided, the judge could set aside (or nullify) a jury verdict when the judge decided that the verdict was contrary to the evidence or the law. Common law precluded the judge from himself entering a verdict; a new trial, with a new jury, was the only course permissible. In Slocum v. New York Insurance Co. (1913), the Supreme Court upheld this rule. Later cases have undermined Slocum, but generally only when the evidence is overwhelming, or if a specific law provides narrow guidelines by which there can be no reasonable question as to the required outcome, may the court enter "judgment as a matter of law" or otherwise set aside the jury's findings.


  1. ^ 3 William Blackstone, Commentaries on the Lawes of England 379 (1765).
  2. ^ 2 Elliot, Debates on the Federal Constitution 397 (1836) (remarks of Mr. Tredwell, of New York).
  3. ^ 4 Elliot, Debates on the Federal Constitution 148 (1836) (remarks of Mr. Iredell, of North Carolina).
  4. ^ Vanhorne's Lessee v. Dorrance, 2 U.S. 304 (D.Pa. 1795) (Paterson, J, riding circuit).
  5. ^ Though one of the more obscure Founding Fathers, he was among the most important. His resolution in the Second Continental Congress eventually became the Declaration of Independence; he was not only a signatory to the Declaration, but served as the fourth President of the Continental Congress.
  6. ^ 1 Elliot, Debates at 504
  7. ^ E.g., Ratification of the Constitution by the State of New York, July 26, 1788, reprinted in 2 Documentary History of the Constitution of the United States of America 193 (United States Dept. of State, 1894) (“That the trial by Jury in the extent that it obtains by the Common Law of England is one of the greatest securities to the rights of a free People, and ought to remain inviolate [emphasis added].”).
  8. ^ Its intended purposes included the frustration of unwise legislation, vindication of the interests of private citizens in litigation with the government; and “protection of litigants against overbearing and oppressive judges.” Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 670-71 (1973) (examining history of the Seventh Amendment, and discussing the purposes behind it).
  9. ^ 2 The Works of John Adams, Second President of the United States 253 (Charles F. Adams ed., Little, Brown & Co. 1850); accord, The Federalist No. 83, at 465 (A. Hamilton) (I. Kramnick ed. 1987) (“The strongest argument in its favor is, that it is a security against corruption, [a]s there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion.”).
  10. ^ United States v. Callender, 25 F.Cas. 239, 257 (D.Va. 1800).
  11. ^ Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970).
  12. ^ Thomas Jefferson, Letter (to L’Abbe Arnoux), Jul. 19, 1789 at 2 (emphasis added). A substantially complete collection of Jefferson' writings, in manuscript, is available at [1]
  13. ^ Callender, 25 F.Cas. at 237 (emphasis added).
  14. ^ Jurors are reminded in pattern jury instructions that it is their “duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors, and they have the right to expect nothing less.” Pattern Crim. Jury Instr. 5th Cir. 1.04 (2001).
  15. ^ Articles of Impeachment Against Samuel Chase, Art. IV, reprinted in, Charles Evans, Report Of the Trial Of the Hon. Samuel Chase (1805), Appendix at 4.
  16. ^ Articles of Impeachment Against Samuel Chase, Art. IV, reprinted in, Charles Evans, Report Of the Trial Of the Hon. Samuel Chase (1805) at 60 (copy of grand jury instruction delivered by Justice Chase, in manuscript).
  17. ^ See e.g., "The Jury and Consensus Government in Mid-Eighteenth-Century America", William E. Nelson, article in The Bill of Rights: Original Meaning and Current Understanding (ed. E. W. Hickok, Jr., Univ. Press of Va. 1991), at [2] (then-Chief Justice John Jay informed a civil jury that while the court usually determined the law and the jury found the facts, the jury nevertheless had "a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.")
  18. ^ E.g., 8th Cir. Civil Jury Instr. § 1.01 (2008) ("You will then apply those facts to the law which I give you in these and in my other instructions, and in that way reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.") [3]
  19. ^ Fed. R. Civ. P. 50 [4]; see generally, Judgment Notwithstanding Verdict, or j.n.o.v. for short.
  20. ^ [[Marbury v. Madison]], 5 U.S. 137 (1803)
  21. ^ Hans v. Louisiana, 134 U.S. 1 (1890) [5]; see, John Paul Stevens, "Two Questions About Justice," 2003 Ill. L. Rev. 821, 824 (confessing this fact).
  22. ^ Pierson v. Ray, 386 U.S. 547 (1967) [6] (In declaring that the "any person" of Section 1983 really meant "any person but us judges," the Pierson Court laid waste to an array of established canons of statutory construction, including the “plain meaning” rule, see, Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) [7] (collecting cases), reliance on legislative history if the statute is unclear, and the principle that remedial statutes are liberally construed, a rule that the Court relied upon literally one day earlier (in State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523 (1967) [8]).
  23. ^ E.g., International Covenant on Civil and Political Rights ("ICCPR"), 999 U.N.T.S. 171 (entered into force March 23, 1976) (ratified by the United States Sept. 8, 1992). Article 2 of the ICCPR abolished sovereign immunity, in requiring that a signatory State must provide an “effective remedy” for rights violations committed by persons acting in an official capacity. ICCPR, art. 2. The Constitution provides that valid treaties are the law of the land, U.S. Const. art. VI, cl. 2; Head Money Cases, 112 U.S. 580, 598-99 (1884),[9] and "an act of congress ought never be construed to violate the law of nations, if any other possible construction remains." Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (quotation omitted) [10]. Congress expressed its intent that provisions of the ICCPR "will become binding international obligations of the United States," 138 Cong. Rec. S4,783 (1992) (statement of Sen. Moynihan (D-MA)), and the State Department has warranted that, whenever conforming legislation is required to comply with treaty obligations, it is our consistent practice to withhold an instrument of ratification until appropriate legislation is enacted. United States Dept. of State, Core Doc. Forming Part of the Reports of States Parties, United Nations Doc. No. HRI/CORE/USA/2005 (Jan. 16, 2005) at ¶ 157
  24. ^ Kawananakoa v. Polyblank, 205 U.S. 349 (1907) (immunity of federal government) [11]; Hans v. Louisiana, 134 U.S. 1 (1890) (immunity of states)
  25. ^ E.g., Imbler v. Pachtman, 424 U.S. 409 (1976) (prosecutors) [12]; Stump v. Sparkman, 435 U.S. 349 (1978) (judges) [13].
  26. ^ Robert H. Bork, Our Judicial Oligarchy, First Things 67 (Nov. 1996) at 21,
  27. ^ Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (New York: AEI Press, 2003), at 13.
  28. ^ [[Ashby v. White]] [1703] 92 Eng. Rep. 126, 136 (H.C.); accord, Poindexter v. Greenhow, 114 U.S. 270, 303 (1884) (“To take away all remedy for the enforcement of a right is to take away the right itself.") [14].

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