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Pregnant with Embarrassments: An Incomplete Theory of the Seventh Amendment, 26 Valparaiso University Law Review 385 (1991)


The first motion at the Federal Constitutional Convention to include a guarantee of jury trials in civil cases was made only two days before the end of active session. General Charles Pinckney of South Carolina and Mr. Elbridge Gerry moved to supplement Article m's guarantee of jury trial in criminal cases with the words: "And a trial by jury shall be preserved as usual in civil cases." Mr. Nathaniel Gorham criticized this guarantee both because it was "not possible to discriminate equity cases from those in which juries are proper" and because "[t]he constitution of Juries is different in different States and the trial itself is usual in different cases in different States." General Pinckney concluded the discussion (before the motion was defeated) by observing that "such a clause in the Constitution would be pregnant with embarrassments."

This phrase makes an apt title for this piece for two reasons. First, it undoubtedly describes the piece that you are about to hear. I approach this topic with great humility and fear. I am not a constitutional scholar nor an historian. The average member of this audience could bring to bear broader and deeper knowledge of this topic. Saying that I am unencumbered by the blinders that previous scholarship and categorization might impose, provides small succor for me and I would suggest for you. Consider then this paper as being "posted": continue on at your own risk.

The title also relates to my thesis. The drafting embarrassments infected not only the initial attempt to guarantee civil jury trials but the final version of the Seventh Amendment as well. Scholars should stop looking for a complete theory to explain the contours of the Seventh Amendment mandate, because a complete theory does not exist. In this paper, I will try to explain what a complete theory of the Amendment would need to do and why the search for such a theory is somewhat quixotic. I will also focus some attention on the often forgotten sibling of the Amendment, the "Reexamination Clause," and argue that this clause can help us, in small ways, to interpret not only the "Preservation Clause" but also other parts of the Constitution.

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