The omission of any protection for jury trials in civil cases in the body of the Constitution raised a firestorm of protest among many Antifederalists. Over and over, the defenders of the Constitution repeated the arguments advanced at the Convention. In the first place, the states had different requirements for juries in civil trials, and it would be impossible to satisfy everyone with a single constitutional rule. Second, Congress could be trusted to decide how to arrange the matter. For example, Edmund Randolph in Virginia conceded that the right “is not so expressly secured as I should wish it,” but he nonetheless assured his colleagues: “I will risk my property on the certainty that [Congress] will institute the trial by jury in such manner as shall accommodate the conveniences of the inhabitants in every state.” Then he added what should have been the clincher: “Can it be in any manner advantageous for them to suppress it?” Why would Congress subvert legal proceedings between private citizens?
But these Federalists arguments fell on deaf ears. To the argument that state jury trial practices were too diverse, Mr. Spencer of North Carolina responded: “They might have provided that all those cases which are now triable by a jury should be tried in each state by a jury, according to the mode usually practised in such state. This would have been easily done, if they had been at the trouble of writing five or six lines.” Others accused the Framers of more than neglect: they suspected a deliberate and sinister design. In New York, one Antifederalist advanced the theory that it was possible to “deduce, from the positive establishment of the trial by jury in criminal cases, that it is annihilated in civil.” This accusation was frequently repeated. Patrick Henry asked: “How does your trial by jury stand? In civil cases gone.” Some Antifederalists argued that the fate of civil jury trials was even more precarious because the Constitution gave the Supreme Court appellate jurisdiction “both as to law and fact.” That would allow the Supreme Court to nullify the decisions of any jury. These combined circumstances seemed to doom the authority of jury trials even in state civil courts.