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2009 – 10 Symposium

Originalism and the Jury, with Keynote Address by U.S. Supreme Court Justice Antonin Scalia
November 17, 2009 | Saxbe Auditorium

Justice Antonin Scalia

Originalism has increasingly entered the landscape of constitutional litigation. For instance, recently in the landmark case of District of Columbia v. Heller, both the majority and dissenting opinions dedicated the bulk of their ink to attempting to discern the original meaning of the Second Amendment. Recently, originalism has also played a prominent role in shaping the mechanics of the American jury system.

The Sixth Amendment guarantees the right to a jury trial in criminal cases. In Blakely v. Washington (2004), the Supreme Court held that, in mandatory sentencing systems, the Sixth Amendment prohibits judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant. Justice Scalia’s opinion for the Court in Blakely cited to multiple 18th century sources to support the assertion that “just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” Similarly, Justice Scalia relied on historical sources in Crawford v. Washington, one of the most important cases about the Confrontation Clause of the Sixth Amendment.

While the Supreme Court has used originalism to curb judicial power in favor of jury power under the Sixth Amendment, the Court has not acted similarly with respect to the Seventh Amendment civil jury trial right. This difference has occurred despite the language of the Seventh Amendment, the only part of the Constitution to refer explicitly to the “common law,” and even though the Supreme Court has directed that common law in the Seventh Amendment is the English common law in 1791. Using originalism, scholars debate whether procedures such as summary judgment and the motion to dismiss are unconstitutional and examine under what conditions a civil jury trial right exists, including whether such a right exists in complex cases.

These are some of the issues the Ohio State Law Journal will address in its upcoming symposium, Originalism and the Jury. The symposium will feature Justice Scalia as the keynote speaker.