“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” — Oliver Wendell Holmes
Many commenters on the Thirteenth Amendment, the draft, jury service, and compulsory road work post argued that the plain language of the Thirteenth Amendment makes the draft unconstitutional. (I think my coblogger Ilya argued something similar in a series of posts in 2007.) I think this question helps illustrate an important difference between two approaches to ambiguous text: an approach that tries to limit its focus to the text itself, and an approach that looks at the text as it was originally understood (which I will label “originalism” for purposes of this post). As between the two, I think originalism is generally preferable, whether or not one thinks that either should also be supplemented by other approaches, such as a focus on precedent. Let me briefly explain why.
1. Let’s begin with the Seventh Amendment, my favorite illustration of this question. The Seventh Amendment says that “In suits at common law … the right of trial by jury shall be preserved.” Now “common law” can mean several things. It can mean judge-made law (or, if you prefer, judge-found law, though that’s a legal fiction) as opposed to statutes. It can mean a particular body of law that was once made by judges, even if now it is codified in statute, as opposed to law that was originally created by a legislature. It can mean Anglo-American law as opposed to European civil law, which is derived from Roman law. Or it can mean law that is sufficiently linked to the sort of law historically enforced in common-law courts as opposed to the sort of law historically enforced in so-called courts of equity.
Today, in my experience, “common law” tends to bear the first meaning (judge-made law). That’s how I’ve seen it most often used. But it’s clear that at the time of the Framing the phrase “Suits at common law” referred to the last meaning, which is to say law historically enforced in common-law courts (which usually called for payment of damages) as opposed to the now largely long-defunct separate courts of equity (which is where injunctions and similar remedies came from). So which meaning should we use?
Here’s my thinking: If we’re appealing to the text of the Seventh Amendment, it must be because we think the enactment of that text should have legal significance. We’re not just appealing to abstract principles of right and wrong, or to the broad structure of the Constitution. (Rightly or wrongly, much of the discussion of the freedom of speech, equal protection, and the like does make such appeals; but I assume here that we’re confronting an argument based on the constitutional text, not on general constitutional theory.) Rather, we think the Seventh Amendment should be followed because it’s law.
Why is it law? Because it was enacted through the proper legal channels by people who had the legal authority to enact it, and because we choose to continue to accept those people’s actions as authoritative. (Again, we could dismiss those actions as no longer binding on us; but if we’re arguing about the text as it was adopted, as opposed to constitutional or moral theory more broadly, we must think the actions of the adopters were indeed in some measure important to us.)
And if we’re going to apply the Seventh Amendment because in 1791 enough states ratified it to make it part of the Constitution, it makes no sense to apply it in a way that’s completely different than how it was understood at the time — for instance, by applying it only to judge-made tort doctrines and not statutory ones — simply because this definition has become more common since 1791, and because the original definition is largely unknown to all but lawyers. That would be more a constitutional pun, I think, than a sensible form of constitutional interpretation.
I should acknowledge that there is a significant alternative to an originalist view of the text, and it is a view that focuses on the text as understood in light of the actual practices of the legal system today. The theory here is that the Constitution derives its force from the continuing consent of the governed, and that if our legal system — crafted as it is by elected officials and those appointed by elected officials — over time accepts some new meaning of a term, then that meaning becomes part of the constitutional framework.
But whether that might be true for some provisions, it isn’t true for the Seventh Amendment. The legal system continues to treat “Suits at common law” as referring to suits of the sort that would have been brought in common-law courts during the Framing era, largely because of the influence of originalism on the courts that have interpreted this particular provision. And certainly there’s no broad public understanding to the contrary.
2. I’d say the same about the Thirteenth Amendment. Bans on slavery and “involuntary servitude” existed in America from 1787 on, beginning with the Northwest Ordinance and then getting enacted in various state constitutions. As best I can tell, those bans were never generally understood as casting constitutional doubt on mandatory military service — which was the norm even in peacetime, in service in the state militia — or on jury duty. By the time the Thirteenth Amendment was enacted, “involuntary servitude” had an established legal meaning, and that was a meaning limited to conditions that were more akin to traditional slavery and less to the duties of citizenship such as military service or jury service. Maybe this approach was morally unsound, or even illogical, as some have argued. But when the ban on involuntary servitude was made part of the Constitution, it was not understood as being a ban on all involuntary work.
Indeed, even today the language is ambiguous. Not all service is servitude; not all involuntary service needs to be involuntary servitude. Does the Thirteenth Amendment ban all involuntary work, or only involuntary work that is understood as akin enough to slavery (perhaps in part because of the sense of social degradation that it is seen as involving), especially in light of what has been traditionally allowed in free states?
When we resolve this ambiguity, I don’t think we can just declare that “involuntary servitude” must mean all involuntary work. To be sure, that definition would have the advantage of simplicity, and it would be the more libertarian definition. But that doesn’t make it the more authoritative understanding of the constitutional text. Given this ambiguity, then it seems to me that arguments based on the text (as opposed to arguments based on general libertarian theory) need to be attentive to how the text was understood by those whose enactment of the text gave the text legal significance. If you can show that “involuntary servitude” did indeed include the draft (and perhaps even jury service) as of 1865, that would be a persuasive argument; but simply relying on the assumption that all involuntary labor is involuntary servitude does not, I think, work.
Nor can we just say that the drafters of the Thirteenth Amendment included only one exception to the ban on slavery and involuntary servitude — the exception for criminal punishment — and therefore all other involuntary servitude is banned. The question is what people of the era understood by “involuntary servitude” in the first place. And given that “involuntary servitude” was a familiar phrase at the time, it seems likely that they understood involuntary servitude as referring to a particular subset of involuntary service, a subset that by definition excluded the traditionally accepted duties of a citizen, including military service and jury service.
Of course, as I suggested in my discussion of the Seventh Amendment, one could look to other sources besides the text, such as precedent. Or one could look to the developing meaning of the provision within our legal system. But both of those sources point towards the constitutionality of the draft: Both the Supreme Court’s precedent and the actual practices of elected officials of both parties since 1865 point towards a view that the draft does not constitute “involuntary servitude.”
Naturally, that still leaves moral arguments, or constitutional theory arguments about what the Constitution ought to be quite apart from the Thirteenth Amendment, or perhaps arguments based on other textual provisions. I leave it to others to discuss those. But it seems to me that if one is making an argument based on the text of the Thirteenth Amendment, it’s hard to read that text as divorced from the understanding of “involuntary servitude” accepted by the legal system both before 1865 and after.
JackOfClubs says:
A “serious of posts”? Are you series?
[EV says: Fixed, thanks!]
June 21, 2011, 4:53 pmSteve says:
It’s hard to conclude that the framers of the Fourteenth Amendment understood they were forbidding “separate but equal,” let alone gender discrimination. If you’re looking to persuade people that originalism is the better mode of interpretation, doesn’t the Fourteenth Amendment present you with a rather serious objection to overcome?
June 21, 2011, 4:58 pmGiant Frog says:
“The meanings of words change over time.” — Oliver Wendel Speaklikeahumaninsteadofafop.
“On June 21, 1788, the Constitution was ratified.”
between two approaches to ambiguous text:
Why word-based rather than idea-based? Why not use either of the two approaches as needed to achieve maximum freedom and equal legal treatment for citizens?
June 21, 2011, 5:24 pmJardinero1 says:
I think due process had something to do with the way the writers of the 13th thought about things. Jury service and military conscription occur in the context of a legal and administrative process. If the process isn’t followed then you are not bound to perform. Slavery did not follow any process except that you were either unlucky enough to be press ganged or were born into it.
June 21, 2011, 5:32 pmEMB says:
This post isn’t about “originalism” vs “living constitution”; it’s about “originalism” in the usual sense of trying to figure out what the original text actually meant to the people who wrote it and voted for it, as opposed to “originalism” in the sense of trying to decide what the original text (exactly as written, with no historical context) would mean today.
The point is that the English language in general, and legal terminology in particular, may have changed a fair amount since then, so it doesn’t make sense to just read the original words as if they were more modern English. I suppose one could argue though that if the meaning of the words has changed in an undesirable way, the constitution should be amended to fix that.
June 21, 2011, 5:33 pmSteve says:
“Equal protection” as it was understood in 1865 meant only racial equality and not gender or other types of equality, and it wasn’t even understood to forbid racial segregation. “Equal protection” as it is understood today means equality on the basis of race, gender, national origin, and so on and so forth, or in other words equality for everyone. That’s not “living constitutionalism” – if you showed people today the words “equal protection” with no context, they would assume that equal means equal, and they would never think that the phrase might only refer to racial equality.
If your thesis is “looking at the text as it was originally understood is generally preferable to just looking at the text,” as EV contends in this post, it seems to me you need to deal with the Fourteenth Amendment issue.
June 21, 2011, 5:48 pmJohn Burgess says:
I think the 14th Amendment issue was looked at, by a series of courts and legislatures. In that looking, in those court decisions, the original meaning was expanded, explicitly, to the point where the original language only gets us so far in terms of contemporary meaning.
That’s not a fault, but a feature. It doesn’t rely on a shift in dictionary meaning, but instead on new rules, drafted in (then-)contemporary language. It is, in effect, the ‘amending’ that EMB calls for, though without a constitutional convention.
June 21, 2011, 6:10 pmEugene Volokh says:
Steve: You can praise the Court’s sex discrimination cases on various grounds. I certainly approve of governmental equal treatment without regard to sex (with a very few possible exceptions) as a matter of policy. But I think those cases are very hard to defend on textual grounds, especially given the Fourteenth Amendment’s express acceptance, in section 2, of governmental sex in voting.
Moreover, the strongest textual defenses of the Court’s sex discrimination cases — that (1) by the 1970s “equal protection” had been socially accepted as including a prohibition on most sex classifications (perhaps as reflected in the broad support for the Equal Rights Amendment, as well as the enactment of Title VII and then the 1972 amendments to Title VII), and (2) “equal protection” was understood in 1868 as forbidding “class legislation,” and by the 1970s “class legislation” was now understood as including most sex classifications — just don’t apply to the draft. (I’m not saying that those are strong defenses for those cases, just that they are the strongest ones I know of.) There has been no such evolving understanding that the draft or jury service constitutes “involuntary servitude,” as reflected in government action or even, to my knowledge, in popular belief.
One might argue that as a matter of moral principles or even moral obligation, sex discrimination or the draft should be unconstitutional. But that’s just not a textual argument.
June 21, 2011, 6:12 pmTJ says:
I favor an approach based on the text using the original meaning of the words and phrases but not necessarily the the original intent. This is the same method of interpretation that I think should be used when interpreting legislation, bylaws, contracts and written constitutions in other countries.
I think that it is possible for a properly interpreted law, constitutional provision, or contract to have results that were not intended.
Sometimes legislation is passed that the legislators do not intend to be fully enforced (sometimes certain legislation is intended not enforced at all), but I don’t think that this changes the meaning of the text. I think courts should interpret and enforce the text not attempt to read the mind of legislators especially since legislators are not always in agreement. If the law that is passed is not what the legislature wanted then they should have worded it differently. Courts should also not accept the original judicial interpretation in cases where the original judicial interpretation is clearly at odds with the text.
I think my view is similar to that of Justice Scalia and Randy Barnett. I don’t always agree with their application of the method, but I believe the method is correct.
I call the method: The Constitution is the Constitution.
June 21, 2011, 6:15 pmarch1 says:
Eugene,
1) Is there an accepted one-word term for the “view that focuses on the text as understood in light of the actual practices of the legal system today?”
2) Absent further constraint or qualification, this view seems to say that at any point in time, things mean whatever we (the legal profession) say they mean. Is it really that vacuous and tautological, or is there more to it that you are being coy about?
June 21, 2011, 6:21 pmJoe says:
But I think those cases are very hard to defend on textual grounds, especially given the Fourteenth Amendment’s express acceptance, in section 2, of governmental sex in voting.
I don’t understand this. The EPC text doesn’t single out ‘sex.’
Section 2 separately treats voting, telling point by itself (is the 15A redundant?), and doesn’t quite “accept” it. It doesn’t penalize it for the purposes of the section. The 19A also makes the exception even weaker as proof of accepting inequality on sex.
the strongest textual defenses
I don’t know why you are saying that is the strongest “textual” defense. The text says “equal protection.” That sounds like the strongest “originalist” defense. But, that isn’t the same thing as “text.”
just don’t apply to the draft
I don’t know. A serious claim was made during the Vietnam War that the draft was applied in a discriminatory way, racial minorities particularly burdened by the practice. “Evolving understanding” is that military service should be voluntary as a rule.
[Overall, the Declaration of Independence speaks of equal protection of the law too ... not limited to "race" ... the "text" isn't just limited to race and soon enough, it was applied beyond it.]
June 21, 2011, 6:27 pmCrazyTrain says:
A tangential but important point. There is not necessarily black-and-white difference between believing that courts should rely on the text of a particular constitutional provision and believing that courts should consider appeals to “abstract principles of right and wrong, or to the broad structure of the Constitution.” In particular, with regard to the Free Speech Clause and the Equial Protection Clause, I think there is an argument to be made that the text of those clauses was written in such a way intentionally to give Judges freedom to consider abstract principles of right and wrong and also to appeals based on the structure of the constitution in general.
June 21, 2011, 6:37 pmByomtov says:
To me, the 14th Amendment illustrates a problem I see with many interpretations based on the argument that the framers “would never have intended” their language to be applied a certain way.
So what? The way the drafters of constitutional provisions thought their work was to be applied often depends critically on their understanding of the world. While we are bound by the principles incorporated in their document, we are not bound by their limited knowledge.
The drafters ofthe 14th didn’t think “separate but equal” was a problem. (Well, maybe. Can we be sure this was a unanimous view? Was the question really considered?) OK. We learned, over time, that it is a problem. So why would we be obligated to accept the 1868 view? It’s not a question of law at all, but of fact.
Similarly, with respect to sex discrimination, it’s possible to argue that the 1868 view of women and their capabilities, not to mention morally appropriate behavior, was extremely blinkered, and that it was this, not any principle inherent in the Amendment, that would have led the (100% male) drafters to claim (to the extent that they did) that women were not fully covered by the equal protection provisions.
Does the Constitution really require us to see the world as it was seen when the original text and the Amendments were adopted? That makes no sense to me.
June 21, 2011, 6:43 pmJoe says:
I think Crazy Train makes a good point and the EPC is different from the Seventh Amendment in that sense. The EPC set forth a basic concept; the concept was broadly understood as shown by various references in antebellum times. One reference:
“Every partial or private law which directly proposes to destroy or affect individual rights or does the same thing by affording remedies leading to similar consequences is unconstitutional and void. Were this otherwise, odious individuals and corporate bodies would be governed by one rule, and the mass of the community, who made the law, by another.”
http://supreme.justia.com/us/165/150/case.html
As far back as Bradwell, Chief Justice Chase appeared to see how this could apply to sexual discrimination. Others understood the point over time. Note the dissent here (1912):
http://supreme.justia.com/us/165/150/case.html
or Adkins v. Children’s Hospital.
The text allows the path supported by Byomtov. I think this is the genius of it and many Framers so realized.
June 21, 2011, 6:54 pmTJ says:
Prof. Volokh,
How do you square your views on Constitutional interpretation with your view that a woman has a Constitutional right to kill a child in her womb?
I fail to see how they could possibly be reconciled.
June 21, 2011, 7:47 pmjkl says:
Most treaties against involuntary servitude have these exceptions:military service or the sustitutive civil service ,work by convicts as soon as opposed to the practice , i dont know if still current ,in the USA, the products of the work or the work is not sold or leased to private citizens. And emergencies, that is state of siege, wich includes not only political but also ecomonics and natural crisis.
June 21, 2011, 8:22 pmMaybe this approach was morally unsound, or even illogical, as some have argued.? Not , at leastoutside the USA, nobody would think is inmoral. Europeans countries were build on the notion of citizen soldier , and idea that goes back to Macchiavelli, who see in it the cause of the glory of Rome. And was undisputed until very recently. As i know only UK and Spain have full professional armies
Eugene Volokh says:
TJ: I don’t think I’ve expressed the view that, as a matter of the constitutional text (as opposed to precedent), a woman has a right to an abortion. If there is such a textually justifiable right, I think it would have to be found in the Ninth Amendment, and I don’t know enough about the Ninth Amendment to speak to that (though my initial inclination is to be skeptical that such a right can indeed be inferred from the text and original meaning of the Ninth Amendment).
Again, none of this resolves the question whether focusing only or chiefly on the constitutional text is the right approach to interpreting the Constitution. My point is simply that, if one appeals to the text, it should be text in light of original meaning.
June 21, 2011, 8:24 pmStephen Lathrop says:
1. As noted by some above, the original meaning of the text can not reach situations which have occurred subsequently, if they are utterly novel to the experience of the founders. Nor is it possible, assuming a desire to pursue original interpretation as a matter of historical fact, to speculate about what the founders “would have” concluded. Such speculations can never be factual.
2. How can either lawyers or judges, however knowledgeable, be proper sources of factual interpretations about the historical meanings of text? Asserting that they can seems to conflate the duty of the courts to say what the law is, with the quite different factual challenge of saying what obsolete text meant to those who wrote it. The latter question is better regarded as a matter of fact outside the law—the normal province of historical experts as a matter of testimony, and of legal fact finders as a matter of process. In short, if original meanings are facts which can decide cases, then original meanings are facts which ought to be treated as evidence. Conscientious originalism would make the determination of such questions an occasion for expert historical testimony, cross examination, and jury decision.
June 21, 2011, 9:53 pmKatahdin says:
I’m not sure I see a lot of added value in having a history professor explain the Federalist Papers to SC judges.
June 21, 2011, 10:18 pmMark Field says:
Because when they interpret the Federalist Papers for originalist purposes, they are not acting as lawyers interpreting the words, but as historians evaluating factual claims. Justices of all political stripes have proved themselves hopelessly incompetent at that task.
June 21, 2011, 10:34 pmohwilleke says:
Another mode of analysis would be to look at the words less technically, and to ask what evil the constitution sought to address by including the 7th or the 13th Amendment.
For example, many state courts have interpreted the state constitutional protection of the right to a jury trial in non-criminal cases to actually involve a substantive right to be able to obtain redress for injuries to person and property before one’s peers, rather than focusing on the procedural element. This view holds the right to sue at all, that is absent from the 7th Amendment to be as important as the question of the identity of the trier of fact.
One could also have limited the scope of the jury trial right by practicality rather than a formalist historical distinction, extending the jury trial to any legal right where it is practicable for a jury to rule, which might include many actions (e.g. eviction, foreclosure, breach of fiduciary duty, grant of fault based divorce) that were governed by equity historically but did not require an individually crafted type of injunctive relief.
One could also view this provision as a prohibition of arbitration based regimes of justice on the theory that the public of which the jury is largely just symbolic rather than private individuals by agreement, should dispense justice.
One could fixate on the term “suits” to view the right as extending to the entire action, rather than just parts of it, to find summary judgment motions unconstitutional.
It also isn’t unreasonable to say that the implications of the prohibitions against the original evil become more clear over time. It may take a long while for it to become clear to people in legal circles that a search of a cloud computing database implicates the same interests as the interest that a person has in not having their papers serached under the 4th Amendment. Even if the Founders had understood the technology back then, they might not have grasped the social meaning of the technology to modern Americans.
June 21, 2011, 11:38 pmTJ says:
You mention original meaning and original interpretation. I think that the two are not quite the same thing. I think that your criticisms are valid against using original interpretation as a standard but not against using original meaning as a standard.
People do not always think of all of the implications of something when they are first writing it (original intent) or first interpreting it (original interpretation). But text can still have meaning and implications in situations that were not previously considered.
Using original meaning as a standard is the same as using current meaning as a standard except to the extent that the meaning of words and phrases have changed. Using original meaning as a standard should be no more difficult to apply than the current meaning when they differ. In fact it may be easier because when the meaning of words and phrases are changed, it is not uncommon for the older meanings to continue to be used along side the newer meanings.
I think when talking about the 13th Amendment, Prof. Volokh may be using something more akin to original interpretation rather than original meaning.
June 22, 2011, 12:08 amTJ says:
But what is Constitutional precedent based upon if not the text of the Constitution (original or otherwise)? Or at least a claim that it is implied by the text or in some way follows from the text.
You are advocating textual originalism, but I think your form of textual originalism is so weak that it can almost be viewed as a subtle attack on textual originalism.
June 22, 2011, 12:45 amTJ says:
I think you make some valid points. I think that courts should bind themselves to the original meanings of the text of the Constitution but necessarily the Framers understanding of the world or the way in which the text has been applied in the past (originally or last year).
June 22, 2011, 1:03 amSuperSkeptic says:
I sympathize with your not wanting to be ruled by the dead-hand, but when one goes so far away (or too far away) from Prof. Volokh’s conception of textual originalism, one defeats the purpose of a written constitution, treating it as simply an “enabling-document”, so to speak. It ignores this:
This is the lynchpin of originalism…
June 22, 2011, 1:05 amJoe says:
those people’s actions as authoritative.
This is the lynchpin of originalism.
The implication by the “dead hand” comment is that there is some desire for some end that might be benign but is not authorized by the Constitution. But, “those people” enacted a Constitution with specific text that opened up the application Byomtov set forth.
The lynchpin of some originalists is that the Constitution is too open-ended or something and it will have bad ends. They are the ones who desire some end not found in the Constitution. Such as Scalia wanting clearer rules that aren’t actually there.
June 22, 2011, 6:53 amJon Rowe says:
This will help me in my introductory law classes I teach at the community college level. I struggle to explain the multiple meanings of common law in a way understandable to ordinary folks.
In particular this: “It can mean Anglo-American law as opposed to European civil law, which is derived from Roman law.” One BIG feature of common law v. ECL/RL is that the former relies on Stare Decisis the latter does not (in general). That means when our Anglo-heritage courts simply cite past cases as precedential authority they engage in a common law function, making the Supreme Court arguably the biggest common law court in the world.
Sound right?
June 22, 2011, 8:59 amByomtov says:
Superskeptic,
My argument is more about how the written constitution should be applied. The dead hand I don’t want to be ruled by is not the Constitution itself, but rather old views of the world which are inaccurate or so narrow that they do not even envision issues that matter today.
June 22, 2011, 9:08 amFrankInFL says:
All very interesting, but I think it overlooks one very important point:
If the 13th does not prohibit ‘the draft’ or ‘jury duty’, then it is the first amendment to prohibit conduct by the people without prohibiting similar conduct by the government.
June 22, 2011, 11:04 amloki13 says:
A very important point. The 13th is a most peculiar Amendment.
June 22, 2011, 11:37 amJoe says:
If the 13th does not prohibit ‘the draft’ or ‘jury duty’, then it is the first amendment to prohibit conduct by the people without prohibiting similar conduct by the government
What “similar conduct” is being prohibited by the people if the draft or jury duty isn’t “slavery” or “involuntary servitude”?
The things that are covered by those two terms are prohibited across the board with an exception to those duly convicted. Jury duty and militia service, so goes the argument, are NOT similar to those things.
The special aspect of the amendment is its application to private parties. But, it is evenhanded in that regard.
June 22, 2011, 1:21 pmHazel Meade says:
On constitutional rights …
I’m not sure that looking for ‘rights’ in the constitution (except for the bill of rights) is the right approach. The constitution is supposed to list what the government is allowed to do, not what rights are granted to the people. Unless there is a specifically enumerated power that grants the government the right to control some aspect of people’s lives, the correct interpretation is to assume that no such power exists, and the right is retained by the people.
It just seems wrongheaded to have to justify some action as a “right” under some convoluted interpretation of the text, when there is no actual written text granting the government the power to forbid you to do it in the first place.
June 22, 2011, 3:24 pmEugene Volokh says:
Hazel Meade: (1) State governments aren’t governments of limited powers; they are governments of plenary powers, limited only by specific rights provisions.
(2) Congress has the power to “raise armies,” and the power to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.” Historically, that power to raise armies has been understood as including the power to raise them coercively, and the militia has been understood as including adult males up to a certain age whether or not they have volunteered.
June 22, 2011, 11:30 pmLou Gots says:
The draft unconstitutional? Absurd. Military power is what the state is. Bearing arms is what the citizen does. Socrates was a proud Athenian soldier, and Mr. draft dodger, you’re no Socrates.
The duty of citizenship falls lightly on us now, because technology has rendered mass armies less than necessary. Be thankful that wiser men have made these preparations and better men have carried them out.
June 23, 2011, 10:53 amJoe says:
Historically, that power to raise armies has been understood as including the power to raise them coercively
It was a matter of some debate if this was the case, including during the War of 1812 and the Civil War. The militia was an easier call. Requiring people to be drafted into the professional army, more controversial.
[See, e.g., the original ruling in Kneedler v. Lane and Prof. Akhil Amar's discussion in "The Bill of Rights"]
June 23, 2011, 10:55 amCourts of equity « Entitled to an Opinion says:
[...] Posted by teageegeepea under Uncategorized Leave a Comment A couple days ago I read a post at Volokh on the meaning of “common law” in the seventh amendment, and how at the time it would [...]
June 28, 2011, 2:48 am