As an institution, the jury—especially in civil cases—is having a bad run these days. Nobody likes that summons in the mail (even though clerks-of-court in the electronic era have figured out ways to make jury service less of a hassle). Experts who monitor medical-legal issues scoff at the notion that a jury, informed by a limited range of paid experts chosen for advocacy purposes, can reach a better decision on the safety of a drug or medical device than can the Food and Drug Administration; and health reform proposals, including some put forth by Republicans in their commendable efforts to repeal and replace Obamacare, contain provisions to direct health care cases away from courts with juries and towards “special tribunals.”
It seems the civil jury can’t get no respect.
Although it’s conservatives who most often make the case against civil justice excesses, the downgrading of juries in popular respect marks a huge, though almost unnoticed, divide between this generation and the Framers.
Ask most people today what is the most direct way they participate in government. They will probably say voting. And yes, the right to vote is in the constitutional text, although something of a latecomer, in various forms in the 14th, 15th, 19th, 23rd, and 26th Amendments.
But 81 years before the right to vote made its first appearance in the Constitution, the jury right in criminal cases was already included in the unamended Constitution (Article III, Section 2, paragraph 3), as it came from the Philadelphia Convention. But the convention declined to extend this right to civil cases. This alone lost the Constitution the votes of George Mason and Elbridge Gerry, and got the ball rolling on the movement for a Bill of Rights, either as a condition of ratification (constitutional opponents lost on that), or as a top item of business when the new government convened (they won on that; politicians kept promises in those days). And so a guarantee of jury trial in civil cases became the 7th Amendment.
In fact, 3 of the first 10 amendments mention juries: We have grand juries in the 5th, criminal petit juries in the 6th, and civil juries in the 7th. For comparison, the right to vote is nowhere mentioned in the Bill of Rights. A latecomer, as I said.
Perhaps, though, we shouldn’t drive too thick a wedge between jury service and voting. A jury votes, after all. Yale’s Akhil Amar, a major advocate of juries, even suggests that the Framers likened juries to a Parliament in miniature, with the jury analogized to the House of Commons, making the most important decisions, and the judge to the House of Lords, exercising a moderating but rarely reversing power.
To whom did this “jury right” belong? The criminal suspect? The civil plaintiff and defendant? All of these—but also to the citizen who would take a turn as a juror. This was an important element of self-government. Citizens were to have a role not only in making laws (by voting for their representatives), but in enforcing and interpreting them too.
We need not get deeply into the issue of the right of juries to determine law as well as fact. This was controversial in the Founding era and remains so. One side argued that as soon as laws were being made by the people (not by a king and his far-away Parliament, in which Americans had no voice), Americans no longer needed the proverbial second bite at the apple in law-reform by juries. Others argued that the people were not fully their own governors unless they had a hand in more than just the legislative aspects of their government: The executive and judiciary should also have to face the people, in the form of the jury, every time a law was applied. “It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department,” wrote the anti-Federalist who signed his work “The Federal Farmer.”
Happily we can leave that great debate unresolved for now and still realize that, for the Framers—and, yes, the “Farmers,” too (“The Federal Farmer” was long thought to be Virginia’s Richard Henry Lee, but historians Gordon Wood and Jack Rakove now believe he was New York’s Melancton Smith)—jury service was not an onerous burden but a closely guarded right. Yes, criminal defendants and civil litigants wanted juries; but jurors also wanted juries.
At first the Bill of Rights was binding only on the federal government, and to this day the 7th Amendment remains one of the provisions in the Bill of Rights that the Supreme Court has not fully applied to the states. The reason? No apparent need: The states themselves guarantee the civil jury right, and have done so since the Founding. Northwestern’s Steven Calabresi and his fellow legal scholars have recently found that 12 of the original 13 states, representing about three-fourths of the population of the new United States of America, had civil jury provisions in their state constitutions at the time of the Founding, second only to provisions for the free exercise of religion.
Civil juries are not perfect, but, in accordance with the Framers’ vision, they should come out of the doghouse they seem to be in today. They should not take the whole blame for excessive tort judgments, and the higher insurance rates and research costs that these create. A critical eye should also be cast on liability theories that legitimize plaintiffs seemingly in need of infinite and unforeseeable product warnings; fee structures that favor lawyers over victims; and, increasingly, hedge funds that see litigation as an investment opportunity, turning on its head the common law rule against “champerty” (which meant, fairly precisely, investing in litigation).
The civil litigation system is flawed along several fissures; juries are not the only ones, or the worst. Above all, they have countervailing, decisive civic, and constitutional benefits. At least our Framers, after debating the issue, came to that conclusion, and we are unwise to ignore their counsel.
David M. Wagner teaches constitutional and administrative law at Regent University.