Constitutional Foundations of Modern American Tort Law
| Publication year | 1987 |
| Pages | 1944 |
| Citation | Vol. 09 No. 1987 Pg. 1944 |
1987, September, Pg. 1944. Constitutional Foundations of Modern American Tort Law
Fifty-five men met in Philadelphia during the summer of 1787. When they parted, they had written the U.S. Constitution. Their deliberations could not have touched on the issues, events and magnitude of modern American tort law. Nevertheless, the Constitution as ratified established two of the foundations upon which today's modern American tort law thrives and evolves: the Seventh Amendment guarantee of jury trials in civil cases, and the establishment of the common law as the guiding influence in civil law. The right to a jury trial in criminal cases was guaranteed in Article III of the original Constitution. In contrast, the convention considered but did not guarantee the right to a jury trial in civil cases within the original draft signed and submitted for ratification to the states.
Enactment of the Constitution drafted by the convention required ratification by a majority of the states. In order to secure ratification of the new Constitution, a bargain was struck between the Federalists, who supported a strong centralized government and thus were proponents of the new Constitution, and the opponents or Anti-Federalists. The Federalists were largely the merchants and manufacturers of the coastal seaports. The Anti-Federalists drew their support from the agrarian interior. In exchange for a vote in favor of ratification, the Federalists promised immediate amendment of the new Constitution to include a bill of rights. A key amendment demanded in the bargain by the populist Anti-Federalists was the guarantee of the right to a jury trial in civil cases, a practice common throughout the original thirteen colonies.(fn1)
The common law was "manifestly influential in shaping the awareness of the revolutionary generation."(fn2) Ironically, this mainstay of British political conservatism was the well-spring of much of American Revolutionary thought. Modern American tort law has undergone a historic evolution and revolutionary growth in its significance to American law.(fn3) This growth is solely the result of the dynamic freedom of our courts to adopt enforceable rules of conduct based upon the changing values, technology and economics of our society.
This column reviews the highlights of the history behind the Seventh Amendment to the U.S. Constitution and the political significance to the framers of the right to trial by jury. It comments briefly on the common law's effect on the drafting of the Constitution and its effect on tort law. Today's Colorado lawyers can gain a better sense of the controversial role of the jury in tort cases by understanding the social, economic and political context of the origins of the civil jury. Practitioners should note the principle of dynamic movement in the law, particularly when advancing a new theory to the court.
The political theorists who would form our Union felt strongly that the public must be a full partner in the execution of the power of law. One commentator noted:
For John Adams an essential point was that the commons or the democracy of society shared too in the execution of laws through the institution of trial by jury. This ancient device was critical as Adams saw it in establishing the equipoise of the English Constitution in that it introduced into the executive branch of the constitution ... a mixture of popular power and as a consequence the subject is guarded in the execution of the laws.(fn4)
The significance to the colonists of the jury system is rooted in their distrust of both government and concentration of power. The jury system preserved to the citizens a significant role within the government. The civil jury diffused power within an independent judiciary, which was created by tenure for life of federal judges subject to good behavior.
The English imperial bureaucrats had punished colonial judges who exercised independence. British governors had cut salaries or fired judges who were not doctrinaire tories. The governors had insisted upon the legality of allowing jury decisions on matters of fact as well as of law to be appealed to a governor appointed by the...
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