The Constitution should transcend politics, but alas, nothing escapes the ire of partisan politics. Even the Constitution. The 7th Amendment — the right to a jury trial in civil cases — is constantly undermined, attacked, and ignored through legislation. And citizens too seem to have little concern for the 7th Amendment, or at least it does not garner the same emotional response as more popular rights like the right to bear arms, or free speech. The Montana Legislature in particular makes little attempt to hide its disgust for jury trial and the 7th Amendment. Why? This article discusses the history, politics, and importance of the 7th Amendment.

Why was the 7th Amendment Created?

The 7th Amendment is found in the sacred Bill of Rights, which refers to the first ten amendments of the original Constitution. In legal terms these are often referred to as “fundamental rights.” It is one of the cornerstones of our country. The 7th Amendment reads:

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.

The Framers of the Constitution considered the 7th Amendment to be essential. In fact, the Declaration of Independence specifically mentions Britain’s lack of a right to trial by jury as a principal reason for the Declaration. Britain originally did have a right to jury trial, but the King did not agree with the results of many jury trials, and therefore did away with the right to jury trial so that the King could have his way.

In other words, taking away the right to a jury was one of the King’s (all powerful government) main ways of taking power away from the people (juries). Juries give power to the people, and prevent the government from making arbitrary self-serving laws. Prior to Independence, the King was mandating results, and there was nothing people could do because the King would simply decide (or direct to be decided) the case how he saw fit. It was ultimate government authority. The lack of the trial by jury is one of the most powerful tools of an oppressive government.

The initial drafts of the Constitutional failed to include the right to trial by jury, which caused backlash by many states and individuals involved at the Constitutional Convention. Proponents of the 7th Amendment pointed to the history with Britain, and how the jury trial was an essential tool to combat oppressive government control. It was not without disagreement. Yet after some debate, James Madison drafted the 7th Amendment, which was included in the final Constitution. The importance of the right to trial by jury cannot be understated — it is one of the greatest tools to fight oppressive government.

One thing requires clarification — the 7th Amendment only applies to the Federal government, but Montana’s Constitution separately guarantees the same right to trial by jury under State law. Mont. Const. Art. II, Sec. 26. Montana’s Constitution is more direct and to the point: “[t]he right to trial by jury is secured to all and shall remain inviolate.” This article focuses on Montana issues, but when referring to the 7th Amendment I am using that reference interchangeably with Montana’s Constitutional counterpart of Art. II, Sec. 26.

Where does the 7th Amendment’s Jury Trial Stand Today

Remember the whole point of the 7th Amendment is to let the people (the jury) directly participate in government, and to prohibit the government (judge, legislature, executives) from overriding or mandating a legal result. Juries get to decide the facts of the case, not the government. There is more subtlety to it in practice, but the 7th Amendment allows the people direct government involvement.

People in power do not like the right to jury trial. Why? Because it levels the playing field. You can’t bully, lobby, or bribe a jury. Governments and large corporations tend to despise juries because it allows you, the citizen or consumer, a chance to fairly argue a case.

The 7th Amendment should prevent the government from passing laws that chip away at the right to jury trial, but sadly it gets ignored. As a way to distract the public from passing laws that attack the Constitution, Politicians use the term “tort reform,” which has developed a bad connotation. Really when you hear “tort reform” it is simply a sneaky term used to describe taking a hatchet to the 7th Amendment. “Tort Reform” is just a euphemism for taking power away from the people, and giving more to the government.

Hatchet to Right to Jury Trial

It is impossible to list all the ways the Montana Legislature has gutted the right to trial by jury, but here are a few examples:

Damage Caps: The Montana legislature has unilaterally mandated caps on the amounts a jury can assign for damages in certain cases. In other words, the jury’s decision on damages is specifically overruled by the government, facts of the case be damned. Large corporations heavily lobby for these laws.

Cap on non-economic damages in medical malpractice case, MCA 25-9-411; numerous limitations to damages in employment cases, MCA 39-2-905; cap on damages on dram-shop cases, MCA 27-1-710; caps on cases against the State or other government entity, MCA 2-9-108 (note that this is particularly egregious in terms of Constitutional history, given that the whole purpose of the right to jury trial is to prevent the government from mandating results, yet the government mandates results in cases against itself. Alas, “the King can do no wrong);

Arbitration Clauses: Arbitration clauses in contracts specifically remove the right to trial by jury, and instead mandate a decision by an arbitrator, often handpicked by the party demanding the arbitration. Proponents of arbitration clauses argue that the parties are free to put anything they want in a contract, including waiving your constitutional right to jury trial. The counter is that many contracts that contain arbitration clauses are what are called “contracts of adhesion,” where one party has substantially more power. Think your cell phone agreement — do you think you should have to waive your Constitutional right to a jury trial because you have a cell phone?

Workers’ Compensation System: The Montana Workers’ Compensation Act itself is an end-around of the Right to Jury trial. This is a long topic, but essentially the workers’ compensation was set up as a bargain between workers and employers, each making certain concessions, and waiving the right to jury trial. As time has gone on, the work comp system has become more and more employer-friendly, raising a serious question as to whether it is fair anymore for workers to waive their right to jury trial.

Wrongful Discharge from Employment Act: The Montana legislature has enacted a host of regulations that nullify jury decisions, or limit jury decisions, in employment cases.

Immunity from Liability for COVID: A new law where the government mandates a result in COVID related lawsuits.

Consumer Protection: New government mandates that limit the amount a consumer can claim against a deceptive or fraudulent company. See MCA, 31-14-133.

The list goes on and on. Can you imagine if the Government passed this many laws limiting the 2nd Amendment?!!!! Chaos.

Note that all the regulations noted above favor specific and powerful special interest groups, or the government itself.

Politics of the 7th Amendment Right to Jury Trial

At first blush, it is hard to understand the positions of politicians regarding the 7th Amendment. Politicians love to talk about the Constitution, yet when it comes to making laws they are more than willing to trample it if convenient, or helpful to wealthy donors.

What is strange is that it is almost always Republicans that pass laws offensive to the 7th Amendment, which is hypocritical. Republicans claim they dislike big government and overregulation, at least that’s what they say — The 7th Amendment is specifically designed to limit big government. Moreover, Republicans love to claim strict adherence to the Constitution, and that they are “originalists.” Yet it’s the republicans who pass endless regulation aimed at gutting the 7th Amendment. It makes no sense. Or does it?…

I believe the answer is simply… money. One thing the 7th Amendment does is cost bad people, bad companies, and bad government money. Jury trials can get in the way of profit. A jury trial is the only thing that somewhat can even the playing field between David (you) and Goliath (large corporations). Think about it — if you are injured because Hyundai built an unsafe car, you think you can just call them up and they will agree to make it right? You and Hyundai’s CEO just go out to lunch and hash out a deal?

Jury trials allow you to go up against companies and have a somewhat fair shake — having the case be decided by peers. Sure, the corporations have more money, can pay for 100 lawyers, etc., but they can’t escape the fact that they have to convince actual normal non-government citizens that they are right, or face actual accountability.

Money and the Jury Trial

It’s no secret the Republican Party is pro-business. In turn, the mega-corporations spend a ton of money lobbying to avoid juries, which leads to gutting of the 7th Amendment. You see laws like ones cited above that expressly defy the 7th Amendment, by nullifying jury decisions or limiting jury power. For republicans on this issue, it is not about the Constitution, justice, or simply the right result — it’s about money. Corporations have convinced the Government to step in and silence the people (juries). There is no problem with making money, but you cannot trample the Constitution to do so.

For whatever reason, Montana’s own Steve Daines specifically talks about his disgust for the Constitution and in particular the 7th Amendment. And again. Daines disguises his contempt for the Constitution by blaming trial lawyers, who are merely the engine of the 7th Amendment. Trial lawyers are to the 7th Amendment what gun and ammo manufacturers are to the 2nd Amendment.

Spiderman and Jury Trial

One cannot, as Daines does, pretend to care about the Constitution in regards to the 2nd Amendment, yet stomp all over the Constitution when it comes to the 7th Amendment. But politicians will be politicians. This is really Constitutional 101, yet politicians seem to take the approach of only worrying about the Constitution if convenient, or better said, if profitable.

Democrats should not go without criticism either. Though Democrats typically do show strong support for the 7th Amendment, Democrats instead focus their ire on other fundamental rights, such as the right to bear arms in the 2nd Amendment. I could write a similar article to this one on the 2nd amendment and democrats. Every time you hear the term “tort reform” just think “gun reform,” and vice versa. It is the same thing, in Constitutional terms!

The Constitution is not suppose to be about what one party likes or dislikes. Nor is is about what makes people or companies the most money. It’s not suppose to be a document where you pick and choose the Rights you care about, or the ones that make certain people rich. The Constitution is suppose to matter, all of it.

When Republicans tout tort reform or bash trial lawyers, it is the Constitutional equivalent of banning handguns, or penalizing gun manufacturers. If you support Tort Reform, then you also have to realize that you are supporting any Constitutional reform — ie, gun reform, free speech, search and seizure, etc. The irony seems to get missed. Many people also support “tort reform,” buying into debunked propaganda such as: “juries lead to higher insurance premiums.” Hopefully, it is just due to lack of understanding, and that this article may help.

There is much more to the Constitution and this subject, but this is a snapshot of the general history and present day concerns of the 7th Amendment. Contact us if you believe you have a claim that could result in a jury trial.