The Seventh Amendment doesn’t protect you at the state level. That must change.
The Constitution’s Bill of Rights tells us what the government can’t do—for example, it can’t stop us from expressing ourselves. But when originally ratified in 1791, the Bill of Rights applied only to the federal government, not the states.
James Madison, the main author of the Bill of Rights, wanted at least some of the amendments to apply to states. His original draft included this line: “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”
But Congress—wanting to preserve the power of states to draft their own constitutions—struck that phrase before ratifying the Bill of Rights. For 77 years, the Constitution’s amendments didn’t protect Americans from the power of state governments.
That changed after the Civil War. In 1868, Congress passed the Fourteenth Amendment to protect newly freed black Americans. The Fourteenth Amendment says:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In other words, the Fourteenth Amendment was a gamechanger: It protected individuals’ life, liberty, and property from state governments, not just the federal government.
But the wording of the Fourteenth Amendment left room for debate: What, exactly, was protected?
Rather than automatically assuming the entire Bill of Rights now applied to the states, the Supreme Court began applying constitutional protections to state governments on a case-by-case basis through the Fourteenth Amendment.
This process is known as selective incorporation.
Which amendments are incorporated? A quick history…
The First Amendment was incorporated to the states in the 1925 Supreme Court case Gitlow v. New York. Benjamin Gitlow, a prominent socialist politician in New York, was arrested in 1919 for publishing a pamphlet that advocated the overthrow of the government. New York convicted Gitlow for violating the state’s “Criminal Anarchy Law.” The Supreme Court upheld Gitlow’s conviction—he had advocated violence, according to the Court—but clarified in its decision that the First Amendment did apply to states:
[W]e may and do assume that freedom of speech and of the press … are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.
That left open the question: What are the other “fundamental personal rights and liberties” protected by the Fourteenth?
The Supreme Court considered that question in the 1937 case Palko v. Connecticut. Frank Palko, a Connecticut man with a criminal record, shot and killed two policemen during a robbery. He was charged with first-degree murder; but after an initial trial, he was convicted only of second-degree murder. The state of Connecticut decided to try Palko again—and this time, the state won a conviction for first-degree murder. Palko objected, pointing to the Fifth Amendment’s protection against double jeopardy (the prosecution of a person twice for the same crime). The Fifth Amendment should apply to the states, Palko argued.
The Supreme Court was unconvinced. In the majority opinion, Justice Benjamin Cardozo wrote that only amendments that are “implicit in the concept of ordered liberty” apply to the states through the Fourteenth Amendment. “The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance,” Cardozo wrote. “Even so, they are not of the very essence of a scheme of ordered liberty.”
Palko was executed by electric chair four months later. But the Court ultimately incorporated the Fifth Amendment’s double jeopardy clause to the states in the 1969 case Benton v. Maryland, which overruled Palko.
By now, most of the Bill of Rights has been incorporated to the states. Only three things remain unincorporated: the Third Amendment (which has never been litigated at the Supreme Court); the Grand Jury clause of the Fifth Amendment; and the Seventh Amendment, which guarantees a right to trial by jury in civil cases “where the value in controversy shall exceed twenty dollars”—a right that should be incorporated to the states.
The next incorporation battle: The Seventh Amendment
Pacific Legal Foundation now has a case that could finally incorporate the Seventh Amendment.
In EFG v. Arizona Corporation Commission, PLF represents a Mesa-based rubber company that was accused of selling securities without proper registration. Rather than being brought before a court of law, the Arizona Corporation Commission brought EFG before its own in-house administrative law judge—without a jury.
PLF argues that’s a clear violation of the Seventh Amendment. Now we’re asking the Arizona Supreme Court to hear the case, while acknowledging in our petition that the Arizona Supreme Court can’t incorporate the Seventh Amendment—only the U.S. Supreme Court can.
If the Arizona Supreme Court takes the case, the U.S. Supreme Court could be where EFG ends up—and Americans’ right to a trial by jury in civil cases could finally be protected from state infringement.
