The absolutist mistake in the Bill of Rights
Thu, 06 Mar 2003 14:49:53 +0000
Speaking as a civil libertarian, the American
Bill of Rights is one of the most surprising,
liberal, purposely open, secular, and beneficial
legal documents ever penned. Even as the US has
become more conservative and religious in its
outlook, its citizens retain more freedom of
thought and expression than in other western
nations, and our government is more restrained
from invasions of our privacy, attempted
circumventions of due process, and religious
All that said, the Bill of Rights contains one
obvious blunder. The first part of the seventh
"In Suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved."
TWENTY DOLLARS? What were the authors of this
amendment thinking, when they hard-coded a
constant?! That amount was sensible when it
took a laborer months to earn twenty dollars.
It stopped making sense more than a hundred
years ago. Today, it is absurd that we would
yank twelve people away from their work and
their lives for a day or more, to try a
dispute whose value won't buy lunch for the
jury. Citizens largely avoid jury duty, and
many consider it a joke. One cause for this
is that when they are summoned, they most
often are assigned to minor cases that should
be settled quickly by a judge alone: the return
of someone's $300 rental deposit, damages in a
fender bender, a roofer's disputed pay, etc.
Elsewhere, the Bill of Rights makes extensive
use of nuanced language: UNREASONABLE search,
PROBABLE cause, DUE process, INFAMOUS crime,
CRUEL and UNUSUAL punishment, SPEEDY and
PUBLIC trial, etc. The only other place it
sets a numeric constant is the prohibition
of double jeopardy, but there the "twice"
refers quite reasonably to repetition of a
process, not a unit of currency. I don't know
whether the authors of the eighth amendment
just got a little bit lazy, or weren't worried
about inflation, or just couldn't think of
other acceptable phrasing.
But there it is, a glaring error, no matter
how one looks at it. And what makes it an
error is precisely what some reactionaries
would do to the Constitution as a whole: it
uses language that is utterly absolutist
where something relative is required. Were
I set the task of fixing this bug, I would
replace the phrase "exceed twenty dollars"
with "exceeds two months median wage, as
reasonably determined by Congress." Let the
OMB calculate a statistical amount every
four years, and Congress approve it. It's
important to use median wage rather than
mean, to tie the amount to what the ordinary
man does, not how high the richest fly.
At some point, I fear this will have to be
fixed. Not too many years from now, twenty
dollars won't buy lunch. Our great
grandchildren will wave twenty dollars at a
vending machine to purchase that generation's
coke. Alas, to fix this error will require an
amendment that repeals part of the Bill of
Rights. And that's a shame.
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