Notre Dame Law Review

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Martin H. Redish* & Samy Abdelsalam**

One prominent constitutional scholar has sought to legitimize this constitutional transformation through resort to a strange and controversial analytical model he describes as the “constitutional moment.”[9]  In this Article, we plan to establish two important points: (1) there exists no principled mode of analysis of the Seventh Amendment right to jury trial that justifies the Court’s categorical dichotomy between Article III and non–Article III forums for purposes of the right’s applicability, and (2) while the theory of the “constitutional moment” would in fact justify the Court’s insulation of the administrative state from Seventh Amendment applicability, reliance on such a theory as a basis for concluding that New Deal measures are somehow insulated from serious constitutional challenges is as dangerous and misguided as any constitutional analytical mode in our nation’s history.  It must therefore be explicitly and categorically rejected by both scholars and jurists.  We conclude, however, that while the Court has not expressly relied on the constitutional-moment theory of constitutional analysis, its vague and unsupported exclusion of the Seventh Amendment right from administrative adjudication amounts to implicit reliance on just such a theory.  It is only by open rejection of the dangerous functionalism inherent in the view that the New Deal legally altered our constitutional framework that we can recognize the intellectually flawed rationale for the Court’s failure to acknowledge the Seventh Amendment’s relevance to administrative adjudication.

The Supreme Court may well be in the process of reconsidering its approach to the applicability of the Seventh Amendment to administrative adjudication.  In Jarkesy v. SEC,[10] the Fifth Circuit court of appeals surprisingly departed from the traditional judicial acceptance of the categorical exclusion of the Seventh Amendment from the non–Article III adjudicatory process.  That court held that, at least in certain situations, the Seventh Amendment does in fact require the option of a jury trial.[11]  The Supreme Court granted certiorari[12] and heard oral argument this past fall.[13]  Now that the Supreme Court has affirmed the Fifth Circuit’s conclusion, we are likely to see a dramatic alteration in controlling constitutional doctrine.  In this Article, we provide a cogent defense of the Fifth Circuit’s conclusion—a defense that court itself failed to provide.[14]

This Article is divided into two major Parts.  Part I provides a description and analysis of the development of Seventh Amendment caselaw.  The Part also explores how the public rights doctrine has been interwoven as its own unique Seventh Amendment pathway.

The second Part explains and critiques Professor Bruce Ackerman’s theory of the constitutional moment, which we deem to lie at the heart of the modern Supreme Court’s rejection of the Seventh Amendment’s applicability to the administrative adjudicatory process.

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© 2024 Martin H. Redish & Samy Abdelsalam.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University Pritzker School of Law.

**J.D. Candidate, 2025, Northwestern University Pritzker School of Law; BS, 2022, Northwestern University.

[9]Bruce Ackerman, We the People: Foundations 307 (1991); see discussion infra Part II.

[10]34 F.4th 446 (5th Cir. 2022), aff’d, 144 S. Ct. 2117 (2024).

[11]Id. at 465.

[12]SEC v. Jarkesy, 143 S. Ct. 2688 (2023) (mem.).

[13]Transcript of Oral Argument at 1, Jarkesy, 144 S. Ct. 2117 (No. 22-859).

[14]In fairness to the Fifth Circuit, it obviously was hamstrung by precedent in a way we, thankfully, are not.