Podcasts | Constitutionally Speaking

Episode 39: For Twenty Dollars More — Understanding the Seventh Amendment

(Mark Makela/Reuters )

Luke and Jay spend this episode digging into the peculiar American institution of the civil jury: recruiting your fellow citizens to decide disputes over everything from a cow to a global corporation. The civil jury grows in response to concerns about courts of equity: In revolutionary America (and in England), parties could choose whether to have their cases decided according to law or according to a separate equitable judicial system. Americans aren’t willing to let the equity system continue without juries, so we wind up with the Seventh Amendment. Yet this raises a question: When does the common law begin or end? As it turns out, the founding generation simply asserts that the English common law applies up to revolution and then lets things run after that. However, always skeptical of the citizenry, the states resist implementing the civil jury, and despite the 14th Amendment, the civil jury has never been incorporated against the states. The guys dig deeply into the ideology and the empirical evidence underpinning hostility to the civil jury, but ultimately side with the civil jury as a virtuous institution reflective of the Founders’ devotion to citizen power.

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