It’s always great to find another Reagan Conservative who cherishes the Founders’ ideal of civil jury trials, as protected by the 7th Amendment to the Constitution, and to see that support in a mainstream conservative publication. Like me, Prof. David Wagner of Regent University Law School was a political appointee in the Reagan Administration who later served as a counsel for House Republicans on a congressional committee. And Prof. Wagner, who teaches constitutional law and other subjects, knows the rich history of the 7th Amendment. He wrote about the importance of civil juries in the January 20 issue of The Weekly Standardin an article titled, “Who Loves a Jury? The Framers of the Constitution, that’s who.” It might be the first pro-civil jury piece in a mainstream conservative publication in many years. An excerpt:

It seems the civil jury can’t get no respect.

Although it’s conservatives who most often make the case against civil justice excesses, the downgrading of juries in popular respect marks a huge, though almost unnoticed, divide between this generation and the Framers.

Ask most people today what is the most direct way they participate in government. They will probably say voting. And yes, the right to vote is in the constitutional text, although something of a latecomer, in various forms in the 14th, 15th, 19th, 23rd, and 26th Amendments.

But 81 years before the right to vote made its first appearance in the Constitution, the jury right in criminal cases was already included in the unamended Constitution (Article III, Section 2, paragraph 3), as it came from the Philadelphia Convention. But the convention declined to extend this right to civil cases. This alone lost the Constitution the votes of George Mason and Elbridge Gerry, and got the ball rolling on the movement for a Bill of Rights, either as a condition of ratification (constitutional opponents lost on that), or as a top item of business when the new government convened (they won on that; politicians kept promises in those days). And so a guarantee of jury trial in civil cases became the 7th Amendment.

In fact, 3 of the first 10 amendments mention juries: We have grand juries in the 5th, criminal petit juries in the 6th, and civil juries in the 7th. For comparison, the right to vote is nowhere mentioned in the Bill of Rights. A latecomer, as I said

At first the Bill of Rights was binding only on the federal government, and to this day the 7th Amendment remains one of the provisions in the Bill of Rights that the Supreme Court has not fully applied to the states. The reason? No apparent need: The states themselves guarantee the civil jury right, and have done so since the Founding. Northwestern’s Steven Calabresi and his fellow legal scholars have recently found that 12 of the original 13 states, representing about three-fourths of the population of the new United States of America, had civil jury provisions in their state constitutions at the time of the Founding, second only to provisions for the free exercise of religion.”

Prof. Wagner has some concerns about flaws that he sees in the civil litigation process, but he warns against limiting the civil jury trial. “The civil litigation system is flawed along several fissures; juries are not the only ones, or the worst. Above all, they have countervailing, decisive civic, and constitutional benefits. At least our Framers, after debating the issue, came to that conclusion, and we are unwise to ignore their counsel.” And he’s criticized bills proposed in Congress to nationally limit medical malpractice damages.

Here’s hoping more of my fellow conservatives realize the wisdom of the Founders and protect civil jury trials.