At the ACS Blog, Senator Sheldon Whitehouse (D-RI): Sounding the Alarm to Save the Civil Jury. Excerpts:
As I recently explained in the National Law Journal,the civil jury came to the United States with the earliest colonists. It provided a means of self-government for Americans who chafed under British rule, and its preservation was vital to the founding generation. Consequently, the Seventh Amendment protected access to the civil jury, which serves, in the words of Alexis De Tocqueville, as a “political institution” and “one form of the sovereignty of the people.”
Unlike other institutions of government which can be dominated by the rich and the well-connected, the civil jury puts all citizens equal before the law. As Sir William Blackstone observed, the jury “preserves in the hands of the people that share, which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.” The Founders wished to assure that when the executive is corrupt, when powerful interests have the legislature tied in knots, and when the press has turned against you, the hard square corners of the jury box still stand strong.
It's odd, then, that the Seventh Amendment's protections are said not to apply against the states. And further, prior to 1868 the Seventh Amendment clearly did not apply against the states, and the Constitution generally doesn'r require Congress provide federal trial courts at all. So actually what the Seventh Amendment did was prevent Congress from creating federal bench trials; it did not (with all respect to the Senator) require the continued existence of the civil jury.
Posted at 6:05 AM