The 7th Amendment guarantees juries for civil “suits at common law.” But what, precisely, did “suits at common law” mean? As Patrick Henry had pointed out in the Virginia Ratifying Convention: “There is no common law of America.” In United States v. Wonson (1812), Justice Story would have to provide an answer to that question. Story wrote of the 7th Amendment: “Beyond all question, the common law here alluded to is not the common law of any individual state (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence.” Judges since that time have drawn from that decision a principle that “suits at common law” means the common law of England, at least as it stood in the year 1791, when the Bill of Rights was ratified.
In an ironic twist, the issue at the heart of the 7th Amendment, the issue that had been of such importance to the American Founders—the guarantee of jury trials in civil cases—has been far less important to modern Americans than to their forebears. Perhaps we trust independent American judges more than we once trusted judges who were beholden to the Crown. This is reflected in the U.S. Supreme Court’s refusal to “incorporate” the 7th Amendment’s first clause “against the states.” When determining whether the individual rights named in the Bill of Rights should be applied to the states through the 14th Amendment, the Court will ask whether that right “is fundamental to the American scheme of justice” (Duncan v. Louisiana, 1968). However, as with the 5th Amendment’s grand jury requirement, the Court has decided that the 7th Amendment’s civil jury trial guarantee is not fundamental. It is therefore not enforceable against the states.