by E. Sebastian Arduengo
Plenty of media attention has been justifiably focused on constitutional rights, such as due process and the individual right to bear arms. The Second Amendment has been discussed in the context of debate over compromise gun safety measures in the U.S. Senate and due process concerns were raised by some human rights groups over the federal government’s questioning of the Boston Marathon bombings suspect.
But one needs to do some digging to find some discussion of the Seventh Amendment, which guarantees the right to jury trials in civil cases. And while it may not appear all that important, and some have even argued that juries needlessly increase the time and cost of taking cases to court, the Seventh Amendment actually ensures some democratic accountability in our courts by ensuring that citizens have a say in administering justice. So, over time, what started as a way to ensure that judges appointed by the King were not overly partial to the Crown, became a way for citizens to hold corporations accountable for wanton wrongdoing.
So, it was heartening that U.S. Senator Sheldon Whitehouse (D-R.I.) recently brought some much-needed attention to the Amendment in a speech at the William & Mary Law School, because over the last quarter-century the Supreme Court and Congress have been working together to slowly chip away at our right to a jury trial in civil cases to the point where it’s almost meaningless through a mix of well-intentioned legislation and blatantly pro-business rulings.
Whitehouse pointed out that legislation like the Federal Arbitration Act, which was passed in the 1920s to guide federal courts enforcing commercial arbitration agreements, had been interpreted narrowly until about 10 years ago, when the Supreme Court decided that everyone that engaged in interstate commerce (which is to say everyone) was subject to it. Since then the court has expanded its scope even further, holding that arbitration agreements can forbid class actions, and even enforcing arbitration agreements when they’re manifestly unconscionable. The combined effect is that, for many consumers, it’s virtually impossible to access the court system.
What’s more is that recent Supreme Court decisions have limited the jury’s traditional authority to impose punitive damages, the penalties defendants must pay over and above compensating the plaintiff for their loss. The Court’s rulings here were particularly favorable to Exxon, which reduced an initial jury award of more than $5 billion for claims related to the Exxon Valdez oil spill to a little over $500 million after 20 years of litigation. Not surprisingly corporations seek to limit their legal exposure to people they harm.
In contrast, Sen. Whitehouse outlined the merits of our system of civil juries that persist to this day. First of all, juries provide what Alexander Hamilton called “security against corruption” by offsetting any bias the judge might have. Juries also get people involved in civic life. While most people dread jury duty, it’s one of the few opportunities people have to see the justice system up close. And with increasing wealth stratification in America, juries are one of the few places where people from all walks of life come together to do something. Finally, juries provide a check on the power of the state – instead of a government bureaucrat wielding the power of the state, twelve ordinary people do.
For our constitutional system to persevere against the rising tide of money and influence, it’s essential that more people like Whitehouse speak out to make sure that our right to have cases heard by a jury of our peers is as well protected as our right to brandish firearms.