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Liberty Means a Trial by Jury

Greg Dolin
Senior Litigation Counsel

March 11, 2023

When the people of several states presented our Constitution for ratification in 1787, one issue nearly derailed the adoption of the nation’s charter. The Anti-Federalists vehemently objected to the lack of a guarantee for a civil jury in the proposed document. They feared that Congress would be able to undermine or abolish the right altogether. The Federalists, especially Alexander Hamilton, did not deny the charge by, for example arguing that the Anti-Federalists are simply misunderstanding the nature of the Constitutional guarantees. Rather, the Federalists embraced the accusation and argued that the absence of the civil jury in the draft Constitution was a feature and not a bug. Hamilton wrote of his “deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one.” He argued that some cases (e.g., those involving “laws of nations” or maritime prizes) will be too difficult for the juries and that juries will fail “to pay sufficient regard to those considerations of public policy which ought to guide their inquiries,” and will instead be swayed by inappropriate considerations. The Anti-Federalists, however, would have none of it.

In Centinel II, the author (quoting Judge Blackstone) wrote that were “the power of judging were entirely trusted with the magistrates, or any select body of men, named by the executive authority, their decisions, in spite of their own natural integrity, would have a bias towards those of their own rank and dignity; for it is not to be expected, that the few should be attentive to the rights of the many.” The Federal Farmer echoed this view writing that “[t]he few, the well born, etc. … in judicial decisions as well as in legislation, are generally disposed, and very naturally too, to favour those of their own description.” The civil jury was a bulwark against the tyrannical rule by the “few” and the “well born.” Ultimately, the Anti-Federalists’ view prevailed when the First Congress proposed and the states quickly ratified the Seventh Amendment which guaranteed a civil jury in all “[s]uits at common law, where the value in controversy shall exceed twenty dollars.”

The rise of the Administrative State, however, has greatly undermined the Seventh Amendment guarantees and has proved the Anti-Federalists’ concerns correct. In dozens of areas now, the rights of citizens rise and fall not based on the judgment of their peers, but on the views of the “well born” attorneys bearing such lofty titles as “Commissioner” or “Administrative Law Judge.” The Supreme Court blessed this arrangement in Atlas Roofing v. OSHA. There, the Court upheld the Government’s ability to seek monetary civil penalties in administrative rather than judicial proceedings holding that because the administrative agency had “special competence in the relevant field” and that administrative adjudication without juries would lead to “speedy and expert resolutions” of the cases, the arrangement was constitutionally permissible.

Unfortunately, the Court erred both on the law and on the facts. Not only are resolutions nowhere near “speedy” with some cases languishing before various commissions for years (sometimes for lack of quorum, and sometimes simply because the relevant agency refuses to act keeping the citizen “on the hook” for the alleged violation), but the Commissions routinely exhibit “a bias towards those of their own rank and dignity.” Thus, in the last three decades, the FTC in-house tribunal has never ruled against the FTC and in favor of the accused.

As it turns out, the experience of administrative tribunals that operate without the check and a brake on governmental powers that a citizen jury provides was well known to the founding generation, and it is this experience that that generation sought to avoid replicating. The infamous Court of Star Chamber, which is now a byword for misuse and abuse of governmental power, initially began as a welcome alternative to English common law courts, which were viewed as too mired in unnecessarily complicated procedures and excessive delays. The Court of Star Chamber—staffed by the King’s Privy Councilors, including the Chief Justices of the Courts of Common Pleas and the King’s Bench—provided a quicker, expert resolution, without bothering with such minute details as to which writ was the right form of action to resolve the case. It did so without juries, and because it was staffed by top legal minds and governmental officials, could resolve complex questions. The Court, unchecked in its power by the common citizenry, quickly became a tool of oppression. The Seventh Amendment was adopted precisely to assuage Anti-Federalists’ concerns that our Congress could eventually set up its own “Star Chamber.”

The Supreme Court’s decision in Atlas Roofing (and its progeny) ignores the warning the history provides. Simply put, whatever advantages in speed and expertise administrative adjudication may provide (and it is far from clear that it does provide any), they are outweighed by the threats of liberties that rejection of the jury system carries. The Court should reconsider its ill-advised decision in Atlas Roofing at its earliest opportunity and restore to Americans the biggest shield against tyranny—a right to a trial by jury in civil cases.