Originalism, Arbitration, and the Civil Jury

In Buckeye Check Cashing v. Cardegna, Justice Scalia authored an opinion for the Supreme Court holding that, where a consumer credit contract contains an arbitration provision, the arbitrator rather than a court decides all questions about the legality of the underlying debt instrument. Buckeye’s holding was controversial, because it effectively pushes a consumer debtor into arbitration even when the arbitration agreement is part of an illegally usurious contract. But Buckeye’s more basic premise–that a consumer debtor can be compelled in an adhesory contract to forfeit the right to a civil jury trial–caused barely a ripple. This premise is now widely accepted, not least by the Court’s loudest constitutional originalist, Justice Scalia.

As the recent colloquy at Balkinization sparked by Jack Balkin’s new book suggests, originalism in some variation informs almost every current theory of constitutional interpretation. On the modern Court, Justice Scalia, along with Justice Thomas, is the most vocal proponent of a strong originalism. He has repeatedly asserted that the proper way to interpret the constitution is to seek out the understanding that the constitutional Framers had at the time of the drafting. In recent years, he has led successful efforts to upend decades of settled law in the areas of confrontation and the right to bear arms based on revisionist interpretations of original constitutional understanding.

But Scalia is untroubled by the forfeiture of the right to a civil jury trial. That’s ironic because literally no individual right was more explicitly championed at the founding than the right to a civil jury trial. And a primary reason was fear that creditors would run roughshod over debtors if debtors did not have recourse to juries.

As every informed high school student knows, Antifederalists attacked the draft Constitution on the ground that it did not sufficiently protect individual rights. They focused in particular on the fact that the constitution included a right to a jury in criminal cases but not in civil cases. Thomas Jefferson, who supported the new constitution, singled out the lack of guarantee of a civil jury right as a problem. Alexander Hamilton acknowledged in Federalist No. 83 that “[t]he objection to the plan of the convention, which has met with most success in [New York], and perhaps in several of the other states, is that relative to the want of a constitutional provision for the trial by jury in civil cases.” Fears that debtors would be forced to face their English creditors in federal courts without juries lay at the heart of those concerns. (Paul Carrington’s concise overview of the history of the jury right is available here; Matthew Harrington’s deeper exploration of its economic origins is here.)

Yet today the originalist members of the Supreme Court countenance adhesory contracts in which financial institutions extend credit only on condition that their debtors agree to forego their rights to a jury trial and instead submit to private dispute resolution processes selected by the creditor. Would 18th Century English creditors have hesitated for a moment to require their continental debtors to submit to non-jury private dispute resolution? Would the Framers have allowed that to happen? The answer is, obviously and unequivocally: “No.”

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