• About
  • Contact
  • Staff
  • Home
  • Essays
  • Forum
  • Podcasts
  • Book Reviews
  • Liberty Classics

May 22, 2015|Constitutional Amendment, Originalism, Seventh Amendment, the Amendment Process

Amending the Seventh Amendment

by Mike Rappaport|

I have been exploring the original meaning of the Seventh Amendment right to a civil jury trial.  Here, I want to step back from that discussion and instead address the desirability of the Seventh Amendment.

In my view, it is not clear that a strong civil jury trial right is desirable.  My reasons are similar to those that have been voiced by critics over the years.  The civil jury is expensive in terms of the time taken from jurors and to the litigating parties.  The civil jury is often not sufficiently expert to adjudicate complicated facts.  And the civil jury often does not apply the actual law but instead their own views of justice.  While the civil jury is a check on judges, I am not sure it is worth it.

If one believes the civil jury is a problem, then how should one deal with the Seventh Amendment and its original meaning?  The short answer is that the Amendment should have been amended.  If the judges had not relaxed the Amendment over time, then its problematic features would have become apparent, a consensus of some kind regarding its problems would have emerged, and an amendment that cut back on the right could have been enacted.  Originalism would then have created the conditions for the amendment of the original meaning.

Instead, judges relaxed the meaning of the Amendment because they did not agree with the original meaning.  Over time, these changes in the meaning of the Amendment reduced the undesirability of the Amendment and therefore made it much less likely that a consensus would emerge to amend the Amendment.  But these improvements are still inferior to what the amendment process would have produced.  These improvements reflect the preferences of judges rather than the public and are limited by what judges believed they could get away with in terms of interpretation.  Ultimately, then, judicial revision or updating of the Constitution displaced the amendment process but employed an inferior process for changing the Constitution.

The Constitution and the Seventh Amendment would have been both better and more legitimate if the amendment process had been employed instead of judicial updating through interpretation.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is coauthored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Mad Men and the American Consciousness
For-Profit and Non-profit Organizations Should Enjoy the Same Civic Rights

Recent Popular Posts

  • Popular
  • Today Week Month All
  • The Gresham's Law of Law February 13, 2018
  • Crisis of the Calhoun United March 20, 2013
  • Jury Nullification: Good or Bad? January 16, 2018
  • Lessons of the French Revolution February 20, 2020
  • Jacques Lacan: Conservative Icon? January 17, 2018
Ajax spinner

Related Posts

Related

Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

Read More

The Graces of Flannery O'Connor

by Henry T. Edmondson III

O’Connor’s correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

Read More

Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

Read More

James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

Read More

Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

Read More

Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

Read More

Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

Read More

America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

Read More

Recent Posts

  • The Just Restraint of the Vicious

    For some contemporary criminal justice reformers, devotion to ideology leads to illogical conclusions about human nature and character change.
    by Gerard T. Mundy

  • Too Immature to be Punished?

    When I look back on my own life, I think I knew by the age of ten that one should not strangle old ladies in their beds.
    by Theodore Dalrymple

  • A Badge of Discrimination

    The British National Health Service has spoken: Wear the badge or declare yourself to be a bigot.
    by Theodore Dalrymple

  • A Judicial Takeover of Asylum Policy?

    Thuraissigiam threatens to make both the law and the facts in every petition for asylum—and there are thousands of them—a matter for the courts.
    by Thomas Ascik

  • The Environmental Uncertainty Principle

    By engaging in such flagrant projection, the Times has highlighted once again the problem with groupthink in the climate discussion.
    by Paul Schwennesen

Blogroll

  • Acton PowerBlog
  • Cafe Hayek
  • Cato@Liberty
  • Claremont
  • Congress Shall Make No Law
  • EconLog
  • Fed Soc Blog
  • First Things
  • Hoover
  • ISI First Principles Journal
  • Legal Theory Blog
  • Marginal Revolution
  • Pacific Legal Liberty Blog
  • Point of Law
  • Power Line
  • Professor Bainbridge
  • Ricochet
  • Right Reason
  • Spengler
  • The American
  • The Beacon Blog
  • The Foundry
  • The Originalism Blog
  • The Public Discourse
  • University Bookman
  • Via Meadia
  • Volokh

Archives

  • All Posts & Publications
  • Book Reviews
  • Liberty Forum
  • Liberty Law Blog
  • Liberty Law Talk

About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
  • Home
  • About
  • Staff
  • Contact
  • Archive

© 2021 Liberty Fund, Inc.

This site uses local and third-party cookies to analyze traffic. If you want to know more, click here.
By closing this banner or clicking any link in this page, you agree with this practice.Accept Read More
Privacy & Cookies Policy
Necessary Always Enabled

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
Close