The Seventh Amendment to the Constitution: A Primer
If you’re accused of a crime in the United States, Article III of the U.S. Constitution guarantees that you will receive a trial by jury. The Sixth Amendment expanded that right to also guarantee “a speedy and public trial, by an impartial jury,” in which you are “confronted with the witnesses against [you],” can compel witnesses in your favor, and “have the assistance of counsel for [your] defense.”
Most people haven’t actually read Article III or the Sixth Amendment. But anyone who’s seen an episode of “Law & Order” (or the short-lived, mid-aughts spinoff, “Law & Order: Trial by Jury”) gets the gist: If your life or liberty is on the line in a criminal trial, a jury of your peers will decide your case.
But what about non-criminal matters? What if your livelihood or property is on the line in a civil case? What if the government comes after you for a serious fine or tries to ban you from your chosen line of work without charging you with a crime? Do you get a jury trial then?
That was meant to be addressed by the Seventh Amendment’s guarantee that:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
But from the 1970s until 2024, the Seventh Amendment’s protections were seriously eroded. Congress passed laws expanding the civil adjudication powers of federal agencies. People were suddenly facing significant fines and other serious penalties in non-criminal matters—and without a jury or even an independent judge. When Congress decided its chosen penalties were civil, rather than criminal, you were out of luck. The agency that accused you of breaking the law also got to decide your guilt and your sentence.
Fortunately, in 2024, the Supreme Court took a significant step toward restoring the Seventh Amendment’s protections when you are sued by the government. And this restoration was and continues to be demanded by the history and original understanding of the Seventh Amendment.
Colonial History
Understanding the full scope of the civil jury trial right protected by the Seventh Amendment requires looking both to pre-Revolutionary history and the debate surrounding the ratification of the Constitution.
Restrictions on the availability of jury trials was a significant factor in the American colonists’ declaring independence from Great Britain. And British abuses of the jury trial right were relentless. In the 1730s, decades prior to the Revolutionary War, the British colonial governor of New York, William Cosby, set off a political firestorm by tampering with the availability of jury trials and prosecuting a prominent objector. Governor Cosby sought to recover a portion of his predecessor’s salary—an action that should have required a jury—without one. He directed New York’s Supreme Court to sit as a court of equity, which it agreed to do. But one of the judges publicly dissented and was fired by Governor Cosby. The backlash from the American colonists was fierce. Publisher John Peter Zenger played a prominent role in promoting that criticism in his papers. And for this, he was prosecuted for seditious libel. Fortunately (and ironically), he was acquitted of that charge by a jury.
More broadly, throughout the colonial period, the British Parliament allowed an increasing number of cases to be adjudicated in jury-less courts of vice-admiralty. These courts were set up to deal with matters arising at sea or on rivers, outside the traditional rules governing the availability of juries. But vice-admiralty courts were used by Parliament as a mechanism to avoid colonial juries which the British authorities believed could not be trusted. In fact, Parliament allowed cases to go to colonial vice-admiralty courts even when such a case would have received a jury trial in England.
Eventually, British abuses of the jury trial right featured as a grievance in the Declaration of Independence.
Ratification History
After the Revolutionary War, jury trials were a central issue in the ratification of the new U.S. Constitution. The original 1787 constitution did not include a civil jury trial right. It was proposed shortly before the end of the Constitutional Convention but was voted down. Opponents argued that the availability of jury trials could be left to Congress. Nathaniel Gorham of Massachusetts said that the “Representatives of the people may be safely trusted” to determine when a jury was appropriate. That would turn out not to be true.
The absence of a civil jury trial guarantee became a central argument of the Anti-Federalists against the ratification of the Constitution. Anti-Federalists argued that jury trials were “the surest barrier against arbitrary power” and that “[j]udges, unincumbered by juries, have been ever found much better friends to government than to the people.” The Federalists doubled down on their trust in Congress. James Madison and Alexander Hamilton both argued for Congress setting the terms of jury trial availability.
Nevertheless, the Anti-Federalists won the argument. Congress could not be trusted with the jury trial right (as it has proven), and the Seventh Amendment was ratified. Madison himself introduced the Amendment in the U.S. House of Representatives.
Key Seventh Amendment Cases
Soon after ratification, in 1830, the U.S. Supreme Court made explicit that the Seventh Amendment prohibited Congress from controlling the civil jury trial right. In Parsons v. Bedford, Breedlove & Robeson, Justice Joseph Story explained that the Seventh Amendment covers any lawsuits that are not within equity or admiralty jurisdiction. The Court defined the phrase “common law” broadly to include both common law claims that existed at the Founding and new claims that adjudicated rights and remedies that were traditionally decided in common law courts (i.e., monetary damages). Justice Story also tied the meaning of “common law” in the Seventh Amendment to the “cases, in Law” that Article III of the Constitution committed to adjudication by the Judicial Branch. So, if the claim against you entitled you to a jury trial, you were also entitled to have your case heard in an Article III court before an independent judge.
After Parsons, the Supreme Court’s approach to the Seventh Amendment went in two separate directions—one expanded its protections, and one dramatically shrank them. In 1856, the Court created an exception to the Constitution’s commitment of all common law claims to Article III courts known today as the public rights exception. In Murray’s Lessee v. Hoboken Land & Improvement Co., the court decided that an Article III court was not necessary to adjudicate the sale of a revenue collector’s land in response to his failure to produce to the government the taxes he had collected. The Court relied on an “unbroken tradition” of non-judicial adjudications being used for revenue collection to justify its decision that an Article III court was not required. Afterward, the Court continued to expand the public rights exception. Subsequent cases pulled in matters concerning immigration (Oceanic Steam Navigation Co. v. Stranahan), tariffs (Ex parte Bakelite Corp.), Indian tribes, public lands, and public benefits.
The most dramatic expansion of the public rights exception came in the 1977 case Atlas Roofing Co. v. Occupational Safety and Health Review Commission. The plaintiff challenged the constitutionality of a civil monetary penalty imposed for a violation of federal workplace safety regulations, arguing that the Seventh Amendment guaranteed a jury trial on such a claim. The Court rejected that argument, saying that “new cause[s] of action, and remedies therefore, unknown to the common law” could be adjudicated by administrative agencies even if the same claim would require a jury in federal court. This case set up a remarkable circumstance in which Congress could effectively deny Americans their civil jury trial rights by simply assigning a cause of action to an administrative agency. This approach entirely contradicted the Court’s earlier holding in Parsons. Moreover, it effectively revived the colonial practice of using vice admiralty courts to avoid juries, the practice that the Seventh Amendment was ratified to prevent.
The result of Atlas Roofing was predictable. The number of regulatory regimes created by Congress that included jury-less administrative tribunals exploded. There were 172 congressional authorizations for such proceedings in the 33 years following Atlas Roofing. And the amount of potential civil monetary penalties is ever-increasing, reaching into the hundreds of thousands or millions of dollars depending on the agency.
Despite the Court’s backsliding on the public rights exception, it remained committed to a broad understanding of “common law” claims to include those created by Congress to impose civil penalties. From the 1970s, the Court continually expanded the claims to which the Seventh Amendment applied, including:
- Shareholder derivative suits where the underlying claim is a legal one (Ross v. Bernhard);
- Fair housing claims for damages (Curtis v. Loether);
- Clean Water Act claims for civil money penalties (Tull v. United States); and
- Claims against state officials for violations of federal statutory and constitutional rights pursuant to 42 U.S.C. § 1983 (City of Monterey v. Del Monte Dunes).
Through these cases, the court also spelled out the scope of the claims considered to be common law for purposes of the Seventh Amendment. In Tull, the Court concluded that the availability of civil money penalties alone was sufficient to trigger the Seventh Amendment because analogous suits were considered common law in late-18th-century England. The Court went even further in Monterey and explained that an 18th-century common law analogue to a new claim need not be identified to obtain Seventh Amendment protection. The statutory claim needed only to be the same type of claim that was heard at common law. For example, a section 1983 claim was a common law claim because it sounded in tort and allowed for monetary relief.
These two lines of cases existed in parallel until 2024, when the Supreme Court took a major step toward restoring the Seventh Amendment to its original purpose—a check on Congress’s ability to deny the right to a civil jury.
Jarkesy Revolution
In 2024, the Supreme Court decided the case of George Jarkesy, who had been accused of securities fraud by the Securities and Exchange Commission (SEC) and had to defend himself against these accusations before the SEC itself. He received no jury trial, nor did an independent judge preside over his case. The result was a $300,000 civil penalty and a ban on his participation in the securities industry. In SEC v. Jarkesy, the Supreme Court held that the SEC’s in-house tribunal process violated the Seventh Amendment and Mr. Jarkesy was entitled to a jury trial in an Article III court.
Jarkesy included two important points that opened a path for the full restoration of the original meaning of the Seventh Amendment. First, the Court applied its broad understanding of common law claims for cases in federal court to cases brought in administrative agencies. It confirmed that the analysis is the same—the nature of the claim as common law, not the forum, is determinative for the application of the Seventh Amendment. Second, the Court reined in the public rights exception to the adjudication of claims in Article III courts. Jarkesy made clear that not just any statutory claim could be kept from Article III courts. The exception is entirely outside the text of the Constitution. So, there must be a historical basis for the specific claim at issue to be adjudicated somewhere other than an Article III court. In Mr. Jarkesy’s case, fraud was a type of claim long heard by common law courts in England.
Challenges Ahead
In the wake of Jarkesy, there will continue to be significant legal battles over the scope of the Seventh Amendment civil jury trial right. There will likely be disagreements in the lower courts about what kind of statutory claims now fall under the Seventh Amendment. And the Supreme Court distinguished rather than overturned Atlas Roofing, leaving a key issue unresolved. The original scope of the Seventh Amendment will not be fully restored until Atlas Roofing is overturned. PLF is continuing to litigate Seventh Amendment challenges to administrative adjudications in multiple agencies. It is our goal to ensure that every American receives the full protection of the Seventh Amendment and that they are no longer subject to administrative agencies that serve as judge, jury, and executioner.
