At the outset, let me be clear: my main argument is that America is and must be governed by a progressive Constitution that changes in response to changing societal needs, not by black-letter rules that were adopted one or two centuries ago and are anachronistically applied without regard to today's conditions. At least since the founding in 1787, Americans have always hoped that their lives and their country would get better; we have not, until recently, perhaps, been a culture that looks back to a past golden age, strives to preserve its essence, and fears that we have entered an era of decline.1 Faith in progress-faith that we can make our world better-is part of what it has meant, and must continue to mean, to be American.2 Importantly, faith in progress cannot meaningfully exist under a Constitution that is mired in the past and, therefore, makes progress impossible.
I was eager to participate in this panel on summary judgment, and I will discuss it and the Supreme Court's recent procedural innovation in Bell Atlantic Page 1654 Corp. v. Twombly3-both of which narrow the role of the jury-because summary judgment and Twombly illuminate why a progressive Constitution is so vital.
My main argument in favor of a progressive Constitution is not new. Distinguished jurists and scholars have made it in the past.4 So have I.5 In particular, I have analogized law and society to a train, in which law can be either the engine or the caboose. As I have explained:
On the one hand, a judge might see herself as an agent of society who is under a duty to make law conform to the wishes of society. If such a judge thinks of society as a train, law will appear as the caboose at the end of the train, and the judge's job will be to keep the caboose on the same track as the train. On the other hand, a judge might see himself as society's commander. Looking upon society as a train, law will emerge as the engine, and the judge as the engineer who must determine the direction that the train ultimately will take.6
Of course, if the engine is not connected to the train, the train will not progress at all; similarly, if the Constitution is fixed in one originalist location, it cannot pull society in new directions or, indeed, permit it to be pulled in any direction at all. Iraq provides a telling contemporary example of a society that is in violent stasis because no engine is capable of pulling the train. Additionally, if the caboose becomes disconnected because someone thinks it must remain in a fixed location, no one will be watching to ensure that the train as a whole remains intact. As a result, the train may come apart and a train wreck may result. That, I suggest, is what would happen if summary judgment were held unconstitutional.
Constitutional law can serve either as a societal engine or as a caboose. Difficult issues arise if we think of constitutional law as an engine that Page 1655 determines society's direction. What business, it is often asked, do appointed Justices with life tenure have in deciding where society should go? And how can we determine whether judges are leading the societal train in a good, rather than bad, direction?
I hope to avoid these hard questions by arguing in favor of the law serving as society's caboose, with the conductors in the caboose (i.e., the judges) ensuring only that the train remains coupled together and proceeding down the track that society has chosen. Here, the main question is whether it is possible for judges to determine objectively the direction that society is taking. The answer, as I have argued in the past,7 is that most of the time they can. A subsidiary question is whether judges, from their vantage point in the caboose, should warn society if it takes a wrong turn. Finally, if society does not heed these warnings, should judges then put themselves in the position of engineer and stop the train?
In the remainder of this Article, I will test my argument in favor of a progressive Constitution in the context of the right to trial by jury in civil cases-the right protected by the Seventh Amendment and arguably undermined by summary judgment and the Supreme Court's Twombly decision.
The history of the jury's role in the decades surrounding the adoption of the Seventh Amendment has become quite clear. Although many legal historians doubted my claim when, some thirty years ago, I became the first scholar to announce that civil juries in Revolutionary-era Massachusetts decided law as well as fact,8 my position has now been generally accepted, both for Massachusetts and for a number of other states.9 Scholars of the history of Page 1656 the jury also agree that the jury's power to determine both law and fact was of constitutional significance;10 it ensured that central authorities in a state, provincial, or national capital could not impose their will on local communities. No case made this point more powerfully than the 1761 case of Erving v. Cradock, where a jury in a Massachusetts county ignored the instructions of the province's superior court and returned a verdict of £499 against a customs collector who had condemned a local vessel for smuggling.11Neither the superior court, the governor, nor the Privy Council could do anything about it.12 Erving v. Cradock thus left little doubt that the ultimate source of law was the local jury-not Parliament, not the Privy Council, not the provincial legislature, and surely not the judiciary.
Not surprisingly, the Antifederalists-proponents as they were of local self-rule-were strong supporters of jury power. One of their most frequent objections to the proposed federal constitution was that federal judges would have the power to set aside, control, or otherwise ignore jury findings and thereby impose centralized national law on local communities.13 The Seventh Amendment-which preserves the right to trial by jury by providing that "no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law"14-was adopted in response to these Antifederalist concerns.15
The Seventh Amendment is about as clear as a constitutional provision ever gets. Of course, there is some ambiguity, particularly in the text's reference to the "rules of the common law." The common law of England differed from that of the American states, and each state, in turn, had common-law rules that differed at least slightly from those of others states.16The Amendment does not specify to which common law it is referring, nor does it indicate whether, as the common law evolves, a court applying the Page 1657 Seventh Amendment should refer to the common law of 1791 or to the common law at the time the case is being decided.17 Arguably, this ambiguity in the term "common law" prevents judges today from knowing how those who drafted and ratified the Amendment intended it to be applied. Nevertheless, the general purpose of the Amendment-to preserve juries as obstacles to the central government's imposition of law that local communities deem unjust-is evident.
Moreover, the common law of 1791, especially in the states of the new United States, gave juries vast power. The courts almost never used procedures analogous to summary judgment or the newly broadened Twombly motion to dismiss. As long as a plaintiff filed a writ in proper form and a defendant responded with a plea of the general issue, a case would go to trial before a jury that would have broad power to find facts and make law. In some jurisdictions, notably England, lawyers and judges had a variety of devices to limit jury power, such as special pleading, the demurrer to the evidence, and the motion to set aside a verdict as contrary to the evidence or instructions and award a new trial; in most American states, however, judges did not possess even the limited power to grant a new trial.18 Page 1658
The result was that the people of a locality could immunize themselves from metropolitan law that was inimical to their interests. For example, a creditor from a metropolitan center, such as London, could not prevent his debtor from presenting his case to a jury, obtaining the delay that assembling a jury entailed, and ultimately falling on the jury's mercy, even if the debtor had no bona fide legal defense. All the debtor needed to do was to plead the general issue, and a jury trial that might excuse him from paying his debt inexorably followed.19 Thus, it is not surprising that back-country Antifederalists seized on the jury as an instrument for preventing oppression by metropolitan creditors and other metropolitan interests.
It follows that a modern judge who is committed to interpreting the Seventh Amendment as its drafters and ratifiers would have applied it should deem summary judgment and the Twombly motion to dismiss unconstitutional. There are two problems, however, with such a simplistic solution. The main problem is that freezing the law in 1791 makes no sense: the Constitution created a society and economy that has catapulted forward since that date, and to separate the law from that society and economy-to have the law function at cross purposes-risks wreckage. Imagine a train that has proceeded slowly and cautiously along a secondary track up to its intersection with the main line, where it can speed up; would it make sense at that point to uncouple either its engine or its caboose? The second problem is the fact that the Seventh Amendment contains a key ambiguity: by referring to the common law ambiguously as something that might change over time, the drafters opened up the possibility that interpretation of the Amendment also should change over time to keep in tune with changes in society and the economy.
In fact, the common law did change dramatically, beginning only a few years after the Seventh Amendment's ratification, when a loosely knit group of Federalist judges-including John Marshall, the Chief Justice of the...