In SEC v. Jarkesy, the Supreme Court rightly held that the Seventh Amendment required a jury trial for a case fundamentally similar to common law fraud, and it rightly limited the scope of the “public rights” exception to the Seventh Amendment. Grounded in historical and originalist methods, this essay makes four suggestions to continue along the same lines as Jarkesy:

1. Continuing a more robust enforcement of the right to a jury trial, the courts should eliminate the “public rights” exception to the Seventh Amendment, which does not appear to have an original historical grounding in the Seventh Amendment. The “public rights” exception seems to have been a pragmatic spill-over from Article III “judicial power” jurisprudence, where it also has limited support in original public meaning.
2. Relatedly, the courts should more informally enforce Article III “judicial power,” which has a more ambiguous original public meaning. If the courts de-emphasize Article III’s “private rights” protections, then the counterbalance from a “public rights” exception would be less necessary, and thus it would be possible to abandon the dubious public rights/private rights distinction entirely.
3. As these questions are more a matter of an individual right to a jury than a structural separation-of-powers matter, individual waiver of the Seventh Amendment right would be more valid.
4. Whereas Jarkesy focused on both substance and remedy in interpreting “the common law,” the scope of the “common law” should be based on the substance (the right, the wrong, or the duty), and not the remedy.

The overall result would be a Seventh Amendment jurisprudence and an Article III “judicial power” jurisprudence more consistent with original public meaning, but also unlikely to lead to an originalist revolution overturning significant institutions of the administrative state.

Continue reading A Historical Case for a Robust but Non-Remedial Seventh Amendment