National Review: Space-Age Companies Still Have Constitutional Rights

Elon Musk and one of his companies are once again in the sights of federal regulators. This time, the National Labor Relations Board (NLRB) accused SpaceX of committing unfair labor practices by firing several employees who used company communication channels to circulate an open letter objecting to some of Musk’s tweets. But, in its pursuit of SpaceX, the NLRB seems to have forgotten that the centuries-old Constitution protects even the rights of space-age companies.

How? SpaceX has a right to a jury trial on NLRB’s charges under the Seventh Amendment. But NLRB brought its charges in a juryless internal tribunal.

Juries have existed for centuries to protect citizens from arbitrary government power. And in the United States, the Seventh Amendment should preserve your right to a civil jury. But over the last half century, Congress erased that right by allowing the government to bring suits for fines or monetary damages in administrative agency tribunals. And the U.S. Supreme Court let them do it. Like SpaceX, you are at the government’s mercy when an administrative agency comes after you. That is a complete betrayal of the history of the civil jury trial guarantee in the United States.

John Adams described the jury trial as “the heart and lungs of liberty.” The jury trial empowers our peers, instead of a government minister, to decide whether we are liable for wrongdoing. This is critical when the government is pursuing a case against us. Without a jury, the government itself determines whether it wins.

Since before the Founding, Americans have resisted the elimination of juries — and juries have prevented abuses of power by the government. In the early 1730s, the colonial governor of New York, William Cosby, sought to take half of his predecessor’s salary for himself. Governor Cosby allowed the New York supreme court to hear his case without a jury. The court approved this by a vote of 2–1. The lone dissenter published his dissent and was promptly fired. This set of a wave of criticism. John Peter Zenger, the printer of much of that criticism, was then prosecuted for seditious libel. But that occurred only after two grand juries refused to indict him. And Zenger was ultimately acquitted — by a jury.

Civil jury trials were so important to early Americans that the omission of a guarantee from the original 1787 constitution risked dooming its ratification. The Anti-Federalists seized on the lack of a right to a civil jury trial in their opposition to the Constitution, arguing that jury trials are “the surest barrier against arbitrary power.” The supporters of ratification — the Federalists — countered that the Constitution did not prohibit civil jury trials but left their availability to the discretion of Congress. However, allowing Congress to control civil jury trials was a nonstarter. One needs to look no further than the behavior of Governor Cosby to see why.

The Anti-Federalists won the argument over the civil jury trial. Shortly after the Constitution’s ratification, the Seventh Amendment — which guarantees civil jury trials in all “Suit[s] at common law” over $20 in value — was added to the Constitution. Civil jury trials were guaranteed to endure without the risk of interference by Congress. Or so it seemed.

Nearly 200 years later, in 1977, the U.S. Supreme Court discarded the protections of the Seventh Amendment and empowered Congress to deny civil jury trials in certain cases. In Atlas Roofing v. OSHRC, the Court allowed federal agencies to adjudicate alleged violations of federal law and impose fines without a jury trial whenever Congress deemed it appropriate. This is exactly the situation that the Seventh Amendment was ratified to prevent.

Fortunately, this abandonment of the Seventh Amendment’s guarantee to a civil jury trial may not last much longer. SpaceX has sued the NLRB, claiming its internal adjudication process denies SpaceX its constitutional right to a civil jury trial. Pacific Legal Foundation — where I am an attorney — filed an amicus brief in this case in support of SpaceX and the restoration of the civil jury trial right.

The Supreme Court also seems to be rethinking its current ahistorical approach. In the November 2023 argument in SEC v. Jarkesy — a case in which the SEC imposed a six-figure fine without a jury — several justices expressed skepticism that Congress could eliminate jury trials through administrative agencies. Chief Justice Roberts commented, “It seems to me that undermines the whole point of the constitutional protection in the first place.” A decision in this case is expected by June 2024.

The Seventh Amendment may be approaching its 233rd birthday, but it is just as important today as when it was ratified. It stood guard over Americans’ right to civil jury trials for almost two centuries. The courts should take the opportunities presented by the SpaceX and Jarkesy cases to revive it.

This op-ed was originally published in National Review on March 18, 2024.