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.

I. JUSTIFICATIONS FOR THE SEVENTH AMENDMENT

To set the stage for an examination of the Twenty Dollars Clause, this Part examines what others have said about the "whole" of the Seventh Amendment and the reasons for its preservation of the civil jury. Justifications for the Seventh Amendment collapse into two classes: functionalist approaches that develop the virtues of the civil jury and historical approaches that develop the historical record and reason from the statements of the Amendment's proponents and opponents. Despite their labels, both approaches mix historical, functional, and textual evidence. Historical justifications, as their name suggests, accord with the Court's historical test for applying the civil jury right while functionalist justifications generally do not. (17)

A. Functionalist Approaches

Generally, functionalist approaches argue that the Seventh Amendment preserves the civil jury because it is "a good idea." (18) Functionalist arguments generally point to two benefits of the civil jury. The first is that the jury legitimizes civil dispute resolution. This argument takes many forms. Some believe juries equalize party inequality by minimizing the influence of relative wealth: (20) a democratic institution such as the jury is unlikely to favor parties whose wealth may otherwise insulate them from legal judgment. Juries also increase societal confidence in trial results because twelve decisionmakers are better than one. (21) Likewise, as a vehicle for civic participation in government, the civil jury reflects community values in its decisions, making them more palatable. (22)

The second general functionalist argument is that juries curb governmental power. Early Americans, particularly Antifederalists, valued the jury's potential to disrupt or defy the government. (23) The most obvious use of this potential is to keep judges in check, whether they be corrupt or merely biased in favor of upper-class, well-educated litigants with whom they can sympathize. (24) A less obvious but equally compelling disruptive effect is that juries check the legislature, both ex post by nullifying laws with which they disagree and ex ante by threatening to nullify such laws. (25)

B. Historical Justifications

Historical justifications are as varied as the historical evidence upon which they are based. One argument raised (though ultimately rejected) by Professor Wolfram is that the Antifederalists designed the Seventh Amendment to protect debtors. (26) Under the Articles of Confederation, the states controlled money and courts, which they used to frustrate British creditors by protecting their resident debtors with inflated currency and protectionist laws. (27) That the Constitution stripped states of the power to employ these tactics (28) generated much opposition in the ratification debates. (29) Because jurors were accustomed to protecting their own, Antifederalists may have hoped that guaranteeing the civil jury in federal court would make the forum less desirable for foreign creditor-plaintiffs. (30)

Although the debtor argument has little relevance today, it is essentially an argument that the Seventh Amendment was designed to constrain federal power. In this sense, the debtor argument is analogous to the separate arguments of two present-day scholars. Professor Amar has written that the Amenders designed the Seventh Amendment to protect the state right to a jury trial by ensuring that a federal common law court would provide a jury trial whenever the forum state would. (31) Professor Sward argues that the Seventh Amendment guards an individual right that protects individuals from federal adjudicatory power even in administrative courts. (32)

A final historical argument takes the opposite tack, contending that the Seventh Amendment actually empowers Congress to regulate jury trials. (33) As Professor Wolfram puts it, "the seventh amendment ... could justifiably be read to refer ... to the distinctive common-law process of adjudication and lawmaking that ... was recognized as flexible and changing." (34) On this view, the Seventh Amendment constitutionalized federal control of a process. (35) Others have echoed Professor Wolfram and refined his perception that the Seventh Amendment lets "Congress ... decide which cases should be triable to juries in the new federal courts." (36) The least implausible of these theories arrives at this conclusion from the debtor justification, arguing that juries would have frustrated the young nation's economic growth and foreign relations without congressional oversight. (37)

II. EXPLAINING THE TWENTY DOLLARS CLAUSE

None of the justifications in Part I account for the Twenty Dollars Clause. Because the Clause purports to send a common law case either to a judge or to a jury based on the amount in controversy, one must question Seventh Amendment justifications that unconditionally support the jury right. Functionalist justifications apply to juries in all cases and thereby fail to distinguish between high- and low-value cases. (38) If, as proposed by the historical debtor argument, the Antifederalists wanted to prevent creditors from dominating and bankrupting debtors, they would have had no reason to deny the jury trial right to the poorest debtors, who stood to lose what little money they had. It is far from clear that the extrinsic costs of pursuing small claims against poor debtors would be enough to deter creditors from taking their small claims to court, and threatening jury trials in low-value cases would have added significantly to deterrence without imposing extra costs on the system. Moreover, the inflexible twenty-dollar figure is inconsistent with federalism interpretations of the Amendment, which depend on the state-by-state flexibility inherent in the term "common law." (39) Even the individual right justification is weakened by the Twenty Dollars Clause because the right attaches once an individual's case is worth at least twenty dollars. (40) And for the Clause to have any consequence, congressional control justifications must correlate a congressional interest in regulating certain cases with the value of those cases: such a correlation seems implausible. (41)

Yet the Clause is more than a monkey wrench disrupting these categorical explanations of the Seventh Amendment. It offers a glimpse into the Amendment that yields a more robust understanding of the Amendment's origin. Taking as given a constitutional jury trial commitment, this Part examines potential explanations for the Twenty Dollars Clause.

A. The Preliminary Issue--Inflation

Before delving into explanations for the Clause itself, a word is due about adjusting the anachronistic twenty-dollar figure for inflation. Some might argue that adjustment is a value-neutral technique for giving appropriate contemporary significance to the Clause. Yet this argument is too simple; for two reasons, we cannot "update" the Amendment by limiting the common law jury to cases exceeding that inflated amount.

First, the Amendment does not permit inflation. Because the Amendment does not explicitly permit inflating the twenty-dollar figure, the Amendment would have to allow adjustment implicitly. …

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