No, Incorporating the Seventh Amendment Would Not Be “Folly”
Last week, Professor Sam Bray wrote a post for the Divided Argument blog discussing a new cert petition that asks whether the Seventh Amendment’s civil-jury right applies to the states. He argued that incorporating the Seventh Amendment would be “folly.” Will Baude published a response a few days later. As an author of that cert petition, I welcome the discussion. And I have a few points to add.
The most notable thing about Professor Bray’s post, I think, is what it does not say. Professor Bray does not defend Minneapolis & St. Louis R. Co v. Bombolis,[i] the 1916 decision that foreclosed the Seventh Amendment’s incorporation based on the now-defunct notion that the Bill of Rights’ protections do not bind the states. Nor does he object to the Court’s modern standard for recognizing the Fourteenth Amendment’s incorporation of those fundamental rights. Nor does he dispute that the civil-jury right is fundamental and readily qualifies under that modern standard.
Instead, Professor Bray offers three reasons why he believes that Seventh Amendment incorporation would be “unwise”: originalism, federalism, and the State of Delaware. Respectfully (and unsurprisingly), I’m not convinced. Let’s take each reason in turn.
First, Professor Bray says the originalist case for Seventh Amendment incorporation is “unusually weak” because the states “locked in” the common-law right to civil juries at different times. He uses Indiana as an example because the Hoosiers codified the civil-jury right as it existed at common law in 1851, rather than 1791. His point, I take it, is that the common-law right could have changed in those 60 years. But Indiana courts would almost certainly question that assumption.
The civil-jury right secured by Indiana’s 1851 constitution traces back to the same common-law origins as the Seventh Amendment. Indiana’s “earliest written law,” the Northwest Ordinance of 1787, codified the right “according to the course of the common law.”[ii] Indiana’s first constitution in 1816 then preserved the right “as it then existed under the ordinance of 1787.”[iii] That same understanding remained in place when Indiana later “locked in” the right in 1851.[iv]
Given this historical rooting, it’s unsurprising that Indiana courts have not discovered that a newly evolved right existed in 1851. Rather, they have consistently said it’s “well settled” that the state’s civil-jury right “must be interpreted in the light of the common law of England.”[v] Take the recent Indiana case that Professor Bray cites (and which, coincidentally, my colleagues at the Institute for Justice litigated). The court devoted most of its analysis to the history of “England and colonial America,” which confirmed that the jury right applied to civil-forfeiture proceedings “both before and after 1851.”[vi] It seems, then, that Professor Bray’s timing concern is likely overstated, to the extent it matters to the incorporation analysis at all.
Second, Professor Bray invokes federalism and says that “states should be allowed to make their own choices.” Sure, but not when those choices infringe on a federally protected right. That’s why the normative argument for federalism “has not stopped the Court from incorporating virtually every other provision of the Bill of Rights.”[vii] If the Fourteenth Amendment incorporated the civil-jury right, then it limited the states’ choices. That raises the very question presented in our cert petition: Does the Seventh Amendment apply to the states? As my colleague Patrick Jaicomo put it on Twitter—“Robert E. Lee handing his sword to Ulysses S. Grant largely answers Sam’s critiques.”
Third, Professor Bray warns that recognizing the Seventh Amendment’s incorporation would be like dropping a “neutron bomb” on the Delaware Court of Chancery. But Professor Bray’s beef seems to be with the Supreme Court’s substantive construction of the Seventh Amendment—not whether the civil-jury right qualifies for incorporation. For example, he says that the Court’s “mistaken” decision in Ross v. Bernhard would upset Delaware law. And he worries that federal precedent would not allow Delaware’s “clean up” doctrine. (Delaware courts, at least, have insisted that their clean-up doctrine is consistent with the “right to trial by jury equivalent to that right as it existed at common law in 1776.”[viii]) At bottom, these qualms over the scope of the right follow Professor Bray’s prior writing on the subject—that Seventh Amendment incorporation “would be unwise” given “the Court’s current approach to determining [the civil-jury right’s] scope,” a problem the Court could solve by adopting the test from Professor Bray’s article.
A lawyer’s disagreement with Supreme Court precedent on the scope of a constitutional right is, of course, as foundational to American law as the right to a jury in civil cases. The First Amendment right to independent expenditures, the Second Amendment right to modern firearms, the Fourth Amendment’s third-party doctrine, the Sixth Amendment’s right to appointed counsel, and on and on. If the Court’s wrong about the scope of the right, it’s a reason to fix that precedent—not to disregard the Fourteenth Amendment’s incorporation of that right.
More to the point, Professor Bray’s concern that federal precedent is ill-suited for the unique ways that states have developed the civil-jury right is, to my mind, a compelling reason to address incorporation as soon as possible. After last year’s ruling in SEC v. Jarkesy, state courts are poised to diverge from the federal standard more than ever before. If the Fourteenth Amendment incorporated the civil-jury right, then the Court should correct Bombolis’s 110-year-old error now rather than allowing the gap between federal and state decisions to expand based on an anti-incorporation decision that no one defends.
That brings me to one final point of agreement I think we have with Professor Bray: The civil-jury right applies to the penalties at issue in our case against Humboldt County.
My clients live modest lives in rural California. And one day the government told them they owe millions of dollars in fines for having unpermitted structures (garages, sheds, greenhouses) on their property. Why would these basic permitting violations trigger such destructive fines? Because the County presumes that the only reason someone would develop their property without a permit is to grow cannabis illegally. Seriously. The county channels these cases into administrative hearings to save on “the expense and delay of pursuing alternative remedies through the civil and/or criminal justice system.” And it tries them before administrative judges who “work for the county and are on the side of the Code Enforcement Unit.” The end-result is entirely predictable. Code-enforcement officers use these jury-less proceedings to threaten the accused into submission: “You’re going to lose the hearing; it’s our people. We’re going to impose the maximum fine on you[.]”
To borrow from Professor Bray’s thoughtful response to Jarkesy, “remedies that punish are not equitable and necessarily give rise to the jury trial right.” But my clients face the devastating harm that ordinary people suffer without a jury to “stand[] as a shield between the individual and the State.”[ix] Until the Supreme Court reconsiders Bombolis, systems like Humboldt’s will continue to exist outside the constitutional order. Maybe there are good arguments against Seventh Amendment incorporation (though I’ve yet to hear them). Or maybe there aren’t. Either way, it’s a question well worth the Court’s time.
[i] Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 217 (1916).
[ii] Reynolds v. State, 61 Ind. 392, 407 (1878).
[iii] Id. (“[W]hen it was provided in the [1816 Constitution], that ‘the right of trial by jury shall remain inviolate,’ it was meant and intended thereby, that the right, as it then existed under the ordinance of 1787, should remain inviolate, ‘according to the course of the common law.’”).
[iv] Norristown, Hope & St. Louis Tpk. Co. v. Burket, 26 Ind. 53, 61 (1866).
[v] Millers Nat’l Ins. Co. v. Am. State Bank of E. Chi., 190 N.E. 433, 435 (Ind. 1934).
[vi] State v. $2,435, 220 N.E.3d 542, 548, 556 (Ind. 2023).
[vii] McDonald v. City of Chicago, 561 U.S. 742, 790 (2010) (plurality).
[viii] FirstString Rsch., Inc. v. JSS Med. Rsch. Inc., No. CV 2020-0332-KSJM, 2021 WL 2182829, at *7 (Del. Ch. May 28, 2021); see also id. at *8 (“The predominant view is that, with some exceptions not applicable here, the cleanup doctrine took precedence over any right to a jury trial on civil claims as of 1776.”).
[ix] State v. One 1990 Honda Accord, 712 A.2d 1148, 1157 (N.J. 1998).
Jared McClain is an Attorney at the Institute for Justice