The Twenty Dollars Clause

Harvard Law Review, March 2005 | Go to article overview

The Twenty Dollars Clause


In suits at common law, where the value in controversy shall exceed twenty

dollars, the right of trial by jury shall be preserved.... (1)

It is almost banal to comment on the long-lived debate over the "meaning" or "purpose" of the Seventh Amendment because the battle lines are so well drawn. Most scholars now accept the Supreme Court's conclusion that the Amendment froze civil jury practice for all time, making the jury available in cases analogous to English common law cases from 1791. Others, however, have marshaled their own claims--for instance, that the Amendment merely authorizes Congress to regulate jury trials and that Congress is the final arbiter of the jury right; (2) that the Amendment embodies a robust, uncircumscribable right to a jury; (3) or that the Amendment is a federalism provision preserving juries in federal court whenever they would be available in local state courts. (4) As time passes, however, it appears more and more that the Court's historical approach to the Seventh Amendment is here to stay. (5)

Yet, of all the articles and cases written on the right preserved by the Seventh Amendment, none has examined the entirety of its first half. With all writers so intently focused on the words "suits at common law" and "shall be preserved," (6) no writer has analyzed the Amendment's relative clause: "where the value in controversy shall exceed twenty dollars." Indeed, many have not even bothered to include the Twenty Dollars Clause when quoting the Amendment, preferring the ellipsis's three characters to the Clause's fifty-eight. (7) More than attempts at keeping articles short, these elisions signify that no one believes that the Clause bears on the right protected by the Seventh Amendment.

Such oversights are explainable. Since the merger of law and equity (8) and since the Supreme Court's decision in Beacon Theatres, Inc. v. Westover, (9) historical intentionalism has been the dominant approach to interpreting the Seventh Amendment. Most commentators, therefore, have grounded their arguments in the nation's early history and in its creators' writings. (10) While the Founders left a veritable encyclopedia on the civil jury right, the Twenty Dollars Clause itself has no history: one afternoon, in a closed door session on Madison's proposed constitutional amendments, the Senate added the Twenty Dollars Clause to what eventually became the Seventh Amendment. (11) In the great debates leading up to the Amendment's adoption, no Framer or Amender (12) argued for (or against) the Twenty Dollars Clause; no state submitted a proposed amendment with similar wording along with its ratification of the Constitution; (13) nor did any contemporaneous state constitution provide for a civil jury conditioned on a minimum amount in controversy. (14) Soon after ratifying the Amendment and sending it to the states, Congress passed the first Judiciary Act, which limited federal jurisdiction in diversity cases to those contesting at least five hundred dollars, (15) so the mysterious Twenty Dollars Clause was mooted before it was ratified by the states. For scholars arguing from a historical vantage point, accounting for the Twenty Dollars Clause must seem a fruitless endeavor. It is not.

Of shrouded origin and neglected for two centuries, the Twenty Dollars Clause complicated simpler views of the Seventh Amendment and the civil jury right. Understanding this complexity will elucidate our understanding of the Amenders' commitment to the civil jury, jumpstarting the otherwise stalled debate on the Amendment's "meaning" and "purpose." After surveying the panoply of Seventh Amendment theories, this Note reasons from the text of the Amendment (16)--the only primary source available--to develop and evaluate explanations for the Clause. Finally, this Note proffers a novel theory: that the Clause crystallizes a relationship between property and liberty, uniting the Constitution's commitment to civil and criminal juries. …

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