CHARLESTON – Sept. 17 is Constitution Day and an opportunity to celebrate our rights enshrined there. One of the most important is trial by jury. Thomas Jefferson wrote, “I consider [trial by jury] as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”
In 2019, however, it is a right forgotten or unknown to many Americans. It is also a right that is being restricted and taken away from us. History shows, when that happens, it’s because the government wants to suppress citizens’ ability to challenge those in power.
Our right to trial by jury is central to the very creation of America. Justice Hugo Black wrote in 1961, “[The denial of trial by jury] led first to the colonization of this country, later to the war that won its independence, and finally to the Bill of Rights.” It is a right first enshrined in 1215, when King John I signed the Magna Carta. In 1500, however, King Henry VIII declared himself absolute ruler and suppressed the right. In place of juries, he used the “Star Chamber” to bring actions against those who challenged him. These secret sessions had no indictments, juries or appeals. Those abuses continued under subsequent leaders until 1689, when the British Bill of Rights again guaranteed trial by jury.
British citizens, who had lost the right to trial by jury at home, restored it when they colonized America. It was guaranteed in the First Charter of Virginia (1606) and all subsequent colonial charters. In the 1700s, the American colonists used that right to challenge the British king and Parliament, and American juries nullified laws they believed were unfair. To stop these challenges to their authority, the king and Parliament again eliminated jury trials. One of the most egregious examples was the 1765 Stamp Act, which forced colonists to appear in admiralty courts with no juries. Colonists issued a formal response to Parliament. While remembered for “no taxation without representation,” it also stated that “trial by jury is the inherent and invaluable right of every British subject of these colonies.”
As America moved toward revolution, trial by jury was central to the cause. The First Continental Congress, in 1774, included preservation of the right in its resolutions. It is cited in the 1775 Declaration of Causes and Necessity of Taking Up Arms. In 1776, the crimes leveled against King George III cited in the Declaration of Independence included “depriving us in many cases the benefits of trial by jury.” As such, this right became one for which our Founding Fathers pledged “[their] lives, [their] fortunes, and [their] sacred honor.” The right to trial by jury was reasserted in the new state constitutions.
The right to trial by jury in criminal cases was preserved in the 1787 draft of the U.S. Constitution, but the failure to include the right for civil cases nearly derailed its ratification. As U.S. Supreme Court Justice Joseph Story wrote in his 1833 Commentaries on the Constitution, “The inestimable privilege of trial by jury in civil cases is conceded by all to be essential to political and civil liberty.” Both the Federalists and Anti-Federalists supported this right, and the Massachusetts Compromise ended the debate. States would ratify the Constitution, but amend it to include a Bill of Rights — including the 7th Amendment right to trial by jury in civil cases. Historian Roger Roots said, “Juries were at the heart of the Bill of Rights.”
Despite this important history, the right to trial by jury in civil cases is again being taken away from American citizens by the powerful. Sadly, most don’t even know that it has been stolen from them.
Mandatory, binding arbitration clauses are buried in the fine print of corporate contracts for everything from cellphones to credit cards to employment contracts and nursing home admission forms. When you are wronged, you are forced into a one-sided, rigged system where consumers, workers and small businesses are powerless against big corporations. There are approximately 800 million of these clauses in effect. A new study by the American Association for Justice found that you are “more likely to be struck by lightning than win at forced arbitration.”
Most sign away their rights because they have no choice. Do you walk away from the job or sign the employment contract? The study shows an estimated 60 million employees are subject to arbitration. Only 0.02 percent pursued a claim, and just 282 were awarded monetary damages over the five-year period studied. That is an average of 56 workers per year, less than one-ten-thousandth of 1 percent of all American workers subject to forced arbitration. That’s wrong.
It’s time for us to follow the example of our Revolutionary-era heroes and demand that our right to trial by jury be protected. On Sept. 10, on a bipartisan vote, the Congressional House Judiciary Committee passed House Resolution 1423, the Forced Arbitration Injustice Repeal (FAIR) Act. The bill now goes to the full House.
Please contact West Virginia’s House members — Reps. David McKinley, Alex Mooney and Carol Miller. Tell them to vote yes and restore your constitutional rights.
White is the executive director of the West Virginia Association for Justice.