The Ninth Amendment

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- [Kim] Hi, this is Kim from Khan Academy.

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Today we're learning more
about the Ninth Amendment

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to the US Constitution, which reads,

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"The enumeration in the
Constitution, of certain rights,

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"shall not be construed
to deny or disparage

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"others retained by the people."

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This, along with the Tenth Amendment,

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doesn't protect a specific right,

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like freedom of religion or
due process under the law,

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but rather, advances an interpretation

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of the scope of the Constitution
and of government power.

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To learn more about the Ninth Amendment,

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I talked with two experts.

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Kurt Lash is the E. Claiborne Robins

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Distinguished Chair in Law

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at the University of
Richmond School of Law.

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Jeffrey Rosen is the president and CEO

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of the National Constitution Center.

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He has written extensively

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on the history of the Supreme Court.

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Professor Lash, can you
tell us a little bit more

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about this amendment?

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Why did the Framers include this amendment

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in the first place?

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- [Kurt] The Ninth Amendment,

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like rest of the Bill of Rights,

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was added at the insistence of the states.

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Although the advocates of
the proposed Constitution

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had claimed that the national government

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would have only limited enumerated power,

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the state ratifying
conventions wanted that promise

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put in writing.

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- [Jeffrey] Originally, the Constitution

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didn't contain a bill of rights

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'cause James Madison said a bill of rights

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would be unnecessary or dangerous,

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unnecessary 'cause the Constitution itself

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was a bill of rights.

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It only granted Congress limited powers,

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and therefore, Congress had no power

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to infringe free speech, for
example, or religious liberty,

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and therefore, wouldn't be able to do so,

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and dangerous, Madison said,

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because if you had a bill of rights,

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people might wrongly assume

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that if a right wasn't written down,

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it wasn't protected, but in response

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to objections by anti-federalists,

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that is those opposed to the ratification

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of the Constitution, led by
George Mason of Virginia,

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as well as Edmund Randolph of Virginia

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and Elbridge Gerry of Massachusetts,

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so those three guys said, "Hey,

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"unless we include a bill of rights

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"for greater security and safety,

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"then we don't think the
Constitution should be ratified."

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In response to their objections

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and those in ratifying conventions,

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many of which demanded a bill of rights,

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Madison changed his mind, and he

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included a bill of rights,
which he cut-and-pasted

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from revolutionary-era
state constitutions,

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and viewers and listeners
can check those out

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at the Interactive Constitution.

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Then that raised an interpretive problem.

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Madison and others were worried,

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if you just had a limited
list of rights, 10

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amendments in particular,
protecting particular rights,

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people might assume that if
a right wasn't written down,

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then it wasn't protected, and the Framers

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didn't want you to reach that conclusion

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because they believed that
our rights come from God

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or nature and not from government.

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Thomas Jefferson, in the
Declaration of Independence,

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said we're all endowed by our Creator

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with certain unalienable rights.

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- [Kurt] When you look
at these amendments,

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our first 10 amendments,

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you'll notice that some
address specific issues,

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like speech and the right to bear arms.

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The last two amendments
on that list, however,

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address broader issues of
Constitutional interpretation.

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These are rules of construction.

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The Tenth Amendment

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declares that all powers
not delegated away

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remain under the control of
the people in the states.

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The Ninth Amendment addresses the problem

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potentially raised by adding
this list in a bill of rights.

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The Ninth Amendment tells
us that just because

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the Constitution lists certain important

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limitations on federal power,

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this doesn't mean that
the federal government

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has otherwise unlimited power,

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or, as the Ninth Amendment puts it,

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"The enumeration in the
Constitution, of certain rights,

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"shall not be construed
to deny or disparage

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"others retained by the people."

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In this way, those two
last rules of construction

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ensure that every subject not placed

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under the control of
the national government

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would remain under the control
of the people in the states

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and remain there as a matter of right.

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These amendments protect
the people's retained right

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to local self government.

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- [Jeffrey] I talked a
bit about natural rights

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because that same notion of the idea

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that you retain natural rights

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when you move from the state of nature

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to the civil society is picked up

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in the language of the Ninth Amendment,

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which says that the
enumeration "of certain rights

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"shall not be construed to
deny or disparage others

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"retained by the people,"
so one big theory

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of the Ninth Amendment is that it refers

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to these natural rights
that come from God or nature

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and that you retain during the transition

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from the state of nature to civil society.

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- [Kim] Can you give us a few examples

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of what those unenumerated rights

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that people have debated have been?

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- [Jeffrey] The paradigmatic source

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for identifying what
unenumerated rights are protected

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is a case called Corfield v. Coryell.

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It was decided in the early 19th Century,

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and it was cited repeatedly
by the people who wrote

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the Privileges or Immunities Clause

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to the Fourteenth Amendment
to the Constitution,

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and basically, the Privileges
or Immunities Clause says that

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no state shall abridge the
privileges or immunities

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of citizens of the United States,

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and the question is what are
those privileges or immunities?

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In trying to define them, John Bingham,

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who wrote the Fourteenth Amendment,

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and a lot of other people

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said, "Well, some of the
privileges or immunities

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"include the rights written
down in the Bill of Rights,

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"but others are not written
down in the Bill of Rights,

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"and you can find them in the
Corfield and Coryell case.

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They're rights that are fundamental.

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They're uniform from state to state,

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and they've been considered basic rights

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of Americans from the beginning.

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Some of these rights
include the right to make

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and enforce contracts, to sue and be sued,

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to have basic economic rights,

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and also to have the benefit
of the writ of habeas corpus,

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which is in the original Constitution,

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and that's the right to
challenge the constitutionality

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of your conviction.

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It's in the original Constitution,

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but not in the Bill of Rights.

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Those are just some examples

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of the unenumerated economic rights

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that the Framers of the
Fourteenth Amendment considered

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to be protected by the
Fourteenth Amendment

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and by implication, by
the Ninth Amendment too,

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'cause they are natural rights,

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as we heard Roger Sherman
say, the basic rights

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of acquiring and possessing property

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and obtaining happiness and safety,

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those are some of those rights.

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- [Kurt] The Ninth Amendment
raises the difficult issue

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of how exactly you determine
what the rights are

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that are actually retained by the people.

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The text of the Ninth Amendment itself

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tells us very little
about the specific content

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of our retained rights, but
in fact, these retained rights

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are as numerous as the stars in the sky.

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They include everything from wearing a hat

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to walking on the sidewalk,
to purchasing life insurance,

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or determining where
you can park your car,

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or what classes should be
offered in the local high school,

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basically everything that
was never meant to be handed

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to the control of the national
government, all of these

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are rights retained to the control

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of the people in the several states,

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and all of these rights will be protected

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if you limit the scope of federal power.

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A limited interpretation
of the Commerce Clause,

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for example, preserves the
people's retained right

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to establish local educational policy

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and to pass all manner of
local civil rights legislation

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that's not expressly covered
by the federal Constitution.

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The greater the limits on federal power,

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the greater the freedom
of local communities.

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By making a limited interpretation
of federal power a right,

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this ensure the matter can
be litigated in federal court

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and not just left to political compromise.

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Over time, courts will
produce a body of law

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that invalidates attempts
by the federal government

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to regulate our lives in forbidden ways,

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such as not having the power
under the Commerce Clause

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to force us to purchase
private health insurance

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or not having the power to
commandeer state official

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and force them to enforce
federal immigration policy.

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- [Kim] Does this refer
back to some extent

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to kind of the common law of England

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and the things that were considered

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the natural rights of Englishmen?

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- [Jeffrey] Yes, it does,
although we should distinguish it

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if we're gonna be
precise, which we should.

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Not all of the common
law rights of Englishmen

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were natural rights.

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Common law rights, basically, are rights

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that were traditionally
protected by English law.

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They're rights that had been recognized

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by English judges over centuries.

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Natural rights come from God
or nature, not from government.

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There's overlap between those groups,

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but there might've been some
common law rights of English

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people that were recognized by tradition,

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like the right to jury trial, for example.

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That's not a natural
right 'cause there are no

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juries in the state of nature.

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There are just people

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who are (laughs) imagining
forming governments.

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It makes it a little tricky,
but it's actually not

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that analytically tricky,
and it's so interesting

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that over and over
again, the Framers said,

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"You know, this is just,
everyone knows what these

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"natural rights are."

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They're the ones that are recognized

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in Corfield and Coryell,

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and then other enumerated rights

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might include the common
law rights of Englishmen,

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but it was a pretty short list,

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and the best way to just
figure out which rights

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were natural, go to the
Interactive Constitution,

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click down, and look at the
Virginia Declaration of Rights.

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Look at the Massachusetts
Constitution of 1780,

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the New Hampshire Constitution.

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It has this beautiful preamble

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about what a natural right is,

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and you'll just see that all
of these state constitutions

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are recognizing the same natural
rights over and over again.

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- [Kim] Has the Supreme
Court ever decided a case

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based on the Ninth Amendment?

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- [Kurt] The first judicial opinion

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was actually written by
Justice Joseph Story,

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one of the most famous
justices in American history.

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In his opinion in Houston Against Moore,

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decided in 1820, Story
explained that the spirit

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and letter of the Ninth Amendment

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called for the limited interpreting

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of the scope of federal power

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in order to avoid
interfering with state laws

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regarding the local militia.

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In fact, it wasn't until the 20th Century

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that you find scholars and justices

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trying to invert the Ninth Amendment

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in a manner that allowed or even required

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federal interference with local policies.

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In Griswold against
Connecticut, for example,

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Justice Arthur Goldberg argued

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that the Ninth Amendment
supported the court's

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invalidation of state contraception laws.

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- [Jeffrey] Douglas says in
this case that the Constitution

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and the particular rights
and the Bill of Rights

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include certain penumbras
formed be emanations,

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from the particular
guarantees that may create

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broader unenumerated rights,
and privacy was one of them.

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Douglas says privacy is
protected in different ways

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in different parts of the Bill of Rights.

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The Fourth Amendment
protects our right against

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unreasonable searches and seizures.

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The Third Amendment protects the right

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not to have soldiers
quartered in the home.

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The First Amendment protects

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a right of freedom of association,

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and from these particular
expressions of privacy,

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Douglas extracted, or inferred,

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a broader and more
sweeping right of privacy,

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which could be extended to cover

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a married couple's right
to use contraception.

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- [Kim] When the Bill
of Rights was ratified

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in the late 18th Century, it only applied

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to the federal government.

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It was not until after the Civil War,

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in the late 1860s and early 1870s,

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that the Fourteenth Amendment applied some

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of the protections of the Bill of Rights

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to state governments.

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How does the Fourteenth Amendment

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impact our understanding
of the Ninth Amendment?

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- [Kurt] Most Constitutional
historians believe

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that the Privileges or Immunities Clause

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was originally understood as applying

00:11:44.980 --> 00:11:47.961
the first eight amendments
against the states.

00:11:47.961 --> 00:11:49.790
What of the Ninth Amendment?

00:11:49.790 --> 00:11:51.260
Is it possible

00:11:51.260 --> 00:11:53.330
that the Privileges or Immunities Clause

00:11:53.330 --> 00:11:55.400
turns the Ninth Amendment from a provision

00:11:55.400 --> 00:11:57.844
protecting local government to one

00:11:57.844 --> 00:12:00.930
that interferes with local government?

00:12:00.930 --> 00:12:03.164
Many libertarian scholars believe so.

00:12:03.164 --> 00:12:05.610
A close look at the
historical record, however,

00:12:05.610 --> 00:12:08.090
shows that this is not likely.

00:12:08.090 --> 00:12:11.000
To begin with, John
Bingham, the man who framed

00:12:11.000 --> 00:12:13.160
the Privileges or Immunities Clause,

00:12:13.160 --> 00:12:15.250
publicly declared at the
House of Representatives

00:12:15.250 --> 00:12:17.130
that the Privileges or Immunities Clause

00:12:17.130 --> 00:12:18.760
made the first eight amendments

00:12:18.760 --> 00:12:20.690
enforceable against the states.

00:12:20.690 --> 00:12:24.040
He said nothing about either
the Ninth or Tenth Amendments.

00:12:24.040 --> 00:12:25.370
Meanwhile, in the Senate,

00:12:25.370 --> 00:12:27.160
the man who introduced the proposed

00:12:27.160 --> 00:12:29.444
Fourteenth Amendment to
his college, Jacob Howard,

00:12:29.444 --> 00:12:32.720
also said that the Privileges
or Immunities Clause

00:12:32.720 --> 00:12:35.280
would apply the first eight
amendments against the states,

00:12:35.280 --> 00:12:39.690
and he too said nothing about
the Ninth or Tenth Amendments.

00:12:39.690 --> 00:12:42.670
Finally, the public that
debated and ratified

00:12:42.670 --> 00:12:45.384
the Fourteenth Amendment
remained broadly committed

00:12:45.384 --> 00:12:47.759
to the federalist
principle of dividing power

00:12:47.759 --> 00:12:50.480
between the state and local governments.

00:12:50.480 --> 00:12:53.190
It had been the slave-holding rebel sates

00:12:53.190 --> 00:12:54.790
that had violated this principle

00:12:54.790 --> 00:12:58.320
by demanding that slavery be
enforced throughout the nation,

00:12:58.320 --> 00:13:00.790
regardless of local freedom laws.

00:13:00.790 --> 00:13:03.140
If we look at the period
in which they adopted

00:13:03.140 --> 00:13:05.990
the Fourteenth Amendment, it
appears that that ammendment

00:13:05.990 --> 00:13:08.400
did, in fact, apply the textual rights

00:13:08.400 --> 00:13:11.000
of the first eight amendments
against the states,

00:13:11.000 --> 00:13:13.405
but it left everything
else to local control,

00:13:13.405 --> 00:13:16.272
subject only to the
requirements of due process

00:13:16.272 --> 00:13:17.863
and equal protection.

00:13:17.863 --> 00:13:19.470
- [Jeffrey] The Ninth
Amendment, at the very least,

00:13:19.470 --> 00:13:21.500
is a question of interpretation.

00:13:21.500 --> 00:13:24.562
It says don't assume that if
a right isn't written down

00:13:24.562 --> 00:13:26.730
it's not protected.

00:13:26.730 --> 00:13:28.990
When the late Robert
Bork, who was nominated

00:13:28.990 --> 00:13:32.370
to the Supreme Court in
1987 but didn't get through,

00:13:32.370 --> 00:13:34.910
said that the Ninth
Amendment should be treated

00:13:34.910 --> 00:13:38.330
as an ink blot because we can't know

00:13:38.330 --> 00:13:40.405
what rights are actually
protected by the Ninth Amendment,

00:13:40.405 --> 00:13:44.320
it should be ignored, that can't be right.

00:13:44.320 --> 00:13:47.200
That's the one thing that
Madison said don't do.

00:13:47.200 --> 00:13:48.950
Don't assume that if the
right isn't written down,

00:13:48.950 --> 00:13:50.283
it's not protected.

00:13:52.190 --> 00:13:55.310
Saying that that matter of construction

00:13:55.310 --> 00:13:57.090
is important and that there are certain

00:13:57.090 --> 00:13:59.130
rights not enumerated in the Constitution

00:13:59.130 --> 00:14:01.357
that are protected doesn't
tell us which rights

00:14:01.357 --> 00:14:03.388
are protected, and that's
where all of the action

00:14:03.388 --> 00:14:05.580
and all of the drama and
all of the excitement

00:14:05.580 --> 00:14:07.090
and Constitutional interpretation

00:14:07.090 --> 00:14:09.880
in the 20th and 21st
Century has come from.

00:14:09.880 --> 00:14:12.300
How do we identify

00:14:12.300 --> 00:14:14.760
the rights that are not written
down, are not enumerated,

00:14:14.760 --> 00:14:15.790
but are protected?

00:14:15.790 --> 00:14:17.360
There's a whole lot to say about that.

00:14:17.360 --> 00:14:19.090
In fact, that's why we
teach Constitutional law,

00:14:19.090 --> 00:14:21.785
is to study the methodologies
of interpretation

00:14:21.785 --> 00:14:24.260
that lead people to different conclusions

00:14:24.260 --> 00:14:28.010
about which unenumerated
rights are protected.

00:14:28.010 --> 00:14:29.870
- [Kim] We've learned
that the Ninth Amendment

00:14:29.870 --> 00:14:33.150
served as an assurance
that the Bill of Rights

00:14:33.150 --> 00:14:35.520
was not an exhaustive list

00:14:35.520 --> 00:14:38.690
of the rights retained by
the people or the states.

00:14:38.690 --> 00:14:41.710
How can you protect unenumerated rights,

00:14:41.710 --> 00:14:43.700
which, by their very definition,

00:14:43.700 --> 00:14:46.060
aren't named in the Constitution?

00:14:46.060 --> 00:14:48.030
Kurt Lash sees the original meaning

00:14:48.030 --> 00:14:51.630
of the Ninth Amendment as a
restriction on federal power.

00:14:51.630 --> 00:14:54.669
Jeff Rosen reminds us that
although it's difficult to tell

00:14:54.669 --> 00:14:57.000
which rights the Framers intended

00:14:57.000 --> 00:14:58.690
to protect with the Ninth Amendment,

00:14:58.690 --> 00:15:00.220
it's likely that those rights

00:15:00.220 --> 00:15:02.746
included the same natural,
unalienable rights

00:15:02.746 --> 00:15:05.720
enshrined in the
Declaration of Independence.

00:15:05.720 --> 00:15:07.710
To learn more about the Ninth Amendment,

00:15:07.710 --> 00:15:09.660
visit the National Constitution Center's

00:15:09.660 --> 00:15:12.710
Interactive Constitution
in Khan Academy resources

00:15:12.710 --> 00:15:14.553
on US government and politics.


Sal Khan's thoughts on mastery learning

WEBVTT
Kind: captions
Language: en

00:00:00.320 --> 00:00:01.600
- This idea of mastery learning

00:00:01.600 --> 00:00:03.079
was always kind of this gold standard.

00:00:03.079 --> 00:00:05.662
(upbeat music)

00:00:07.050 --> 00:00:08.700
This was actually as
a part of a fellowship

00:00:08.700 --> 00:00:10.743
I had while I was at MIT
called the Eloranta Fellowship

00:00:10.743 --> 00:00:14.123
to make a learning software
for students with ADHD.

00:00:17.770 --> 00:00:20.220
And it immediately struck a chord with me

00:00:20.220 --> 00:00:24.000
because going into that the
whole premise of the software

00:00:24.000 --> 00:00:25.820
that I was working on was this idea

00:00:25.820 --> 00:00:29.596
that it's not that students
aren't capable of learning

00:00:29.596 --> 00:00:30.883
some advanced mathematics

00:00:30.883 --> 00:00:33.326
or that the topics are actually difficult,

00:00:33.326 --> 00:00:36.260
it's more that they just
have gaps in their knowledge.

00:00:36.260 --> 00:00:37.815
And I did a lot of
tutoring in high school.

00:00:37.815 --> 00:00:40.550
And I saw that over and over again

00:00:40.550 --> 00:00:41.940
that the reason why students were having,

00:00:41.940 --> 00:00:45.440
my friends were having trouble
with algebra, geometry,

00:00:45.440 --> 00:00:49.650
it was just because they had a
gap in their negative numbers

00:00:49.650 --> 00:00:53.603
or divide and get decimals or
logarithms or whatever else.

00:01:01.835 --> 00:01:03.940
Good students start failing
in algebra all of a sudden

00:01:03.940 --> 00:01:05.969
and start failing calculus all of a sudden

00:01:05.969 --> 00:01:08.730
despite being smart,
despite having good teachers

00:01:08.730 --> 00:01:11.400
and it's usually because they
have these Swiss cheese gaps

00:01:11.400 --> 00:01:13.310
that kept building
throughout their foundations.

00:01:13.310 --> 00:01:15.080
Now a lot of skeptics might say,

00:01:15.080 --> 00:01:16.250
well hey, this is all great,

00:01:16.250 --> 00:01:18.530
philosophically this whole
idea of mastery based learning

00:01:18.530 --> 00:01:19.963
and its connection to mindset,

00:01:19.963 --> 00:01:22.550
students taking agency over their learning

00:01:22.550 --> 00:01:25.813
makes a lot of sense,
but it seems impractical.

00:01:37.020 --> 00:01:39.830
The real philosophical
core of Khan Academy

00:01:39.830 --> 00:01:41.460
is mastery learning.

00:01:41.460 --> 00:01:43.970
And everything we've built,
whether it's the video library,

00:01:43.970 --> 00:01:46.383
the articles we have, the 70,000 items,

00:01:46.383 --> 00:01:48.960
the game mechanics that
we have on our site,

00:01:48.960 --> 00:01:51.259
it's all in service to mastery learning.

00:01:51.259 --> 00:01:53.842
(upbeat music)


The Seventh Amendment

WEBVTT
Kind: captions
Language: en

00:00:00.590 --> 00:00:02.820
- [Kim] Hi, this is Kim from Khan Academy.

00:00:02.820 --> 00:00:05.810
Today we're learning more
about the Seventh Amendment

00:00:05.810 --> 00:00:07.550
to the U.S. Constitution.

00:00:07.550 --> 00:00:10.980
The Seventh Amendment
guarantees the right to juries

00:00:10.980 --> 00:00:12.790
in civil cases,

00:00:12.790 --> 00:00:17.250
when the value in controversy
is greater than $20.

00:00:17.250 --> 00:00:19.040
To learn more about the Seventh Amendment,

00:00:19.040 --> 00:00:21.440
I talked with two experts.

00:00:21.440 --> 00:00:25.090
Renee Lerner is the
Donald Philip Rothschild

00:00:25.090 --> 00:00:27.040
Research Professor of Law

00:00:27.040 --> 00:00:29.980
at George Washington
University Law School.

00:00:29.980 --> 00:00:32.830
She specializes in U.S.
and English legal history,

00:00:32.830 --> 00:00:35.050
and she's written
extensively about the history

00:00:35.050 --> 00:00:37.170
of American juries.

00:00:37.170 --> 00:00:41.290
Suja Thomas is the Peer and
Sarah Pederson Professor of Law

00:00:41.290 --> 00:00:43.490
at the Illinois College of Law.

00:00:43.490 --> 00:00:45.990
Her research interests
include jury provisions

00:00:45.990 --> 00:00:47.330
in The Bill of Rights,

00:00:47.330 --> 00:00:50.765
civil procedure, and employment law.

00:00:50.765 --> 00:00:52.980
Professor Thomas, can
you tell us a little bit

00:00:52.980 --> 00:00:56.691
about why the Framers were
so interested in protecting

00:00:56.691 --> 00:00:58.187
this right in particular?

00:00:58.187 --> 00:01:00.430
- [Professor Thomas]
Historically there were juries

00:01:00.430 --> 00:01:05.430
in England, and a lot of
our Constitution is based on

00:01:06.330 --> 00:01:09.430
what occurred in England,

00:01:09.430 --> 00:01:13.120
because of course that
was our historical origin,

00:01:13.120 --> 00:01:16.240
and so colonists were
really familiar with juries.

00:01:16.240 --> 00:01:19.710
They knew that the jury
restrained government

00:01:19.710 --> 00:01:21.395
and preserved liberty,

00:01:21.395 --> 00:01:24.253
and they also knew what
could happen without juries.

00:01:25.380 --> 00:01:27.650
Because of this history,

00:01:27.650 --> 00:01:31.080
juries were really important to Americans

00:01:31.080 --> 00:01:34.683
and they put it in the
Declaration of Independence.

00:01:35.647 --> 00:01:37.890
- [Professor Lerner] And
the Framers in general

00:01:37.890 --> 00:01:40.830
were very enthusiastic about juries.

00:01:40.830 --> 00:01:45.070
One of the reasons was that
juries had been important

00:01:45.070 --> 00:01:48.620
in helping to nullify British laws

00:01:48.620 --> 00:01:51.120
that the American colonists didn't like.

00:01:51.120 --> 00:01:54.680
An example of these laws
is the customs taxes.

00:01:54.680 --> 00:01:58.500
These were taxes on shipping
and were very unpopular,

00:01:58.500 --> 00:02:00.520
especially in New England.

00:02:00.520 --> 00:02:03.230
What would happen is merchants,
the Boston merchants,

00:02:03.230 --> 00:02:06.290
were supposed to pay a customs tax

00:02:06.290 --> 00:02:09.840
on merchandise that they
imported into Boston

00:02:09.840 --> 00:02:12.130
and also, in certain cases, exported.

00:02:12.130 --> 00:02:15.260
What would happen is
these Boston merchants

00:02:15.260 --> 00:02:19.973
would try to import goods
and not pay the tax.

00:02:21.510 --> 00:02:25.900
Sometimes they would get
caught by customs inspectors.

00:02:25.900 --> 00:02:28.720
If a customs inspector
caught one of these merchants

00:02:28.720 --> 00:02:31.550
trying to smuggle in goods,

00:02:31.550 --> 00:02:36.550
the customs collector would
seize the ship and the cargo

00:02:37.430 --> 00:02:39.840
and hold it essentially for ransom.

00:02:39.840 --> 00:02:43.350
The customs inspector
would then bring an action,

00:02:43.350 --> 00:02:48.350
a lawsuit, against the ship and the cargo

00:02:48.764 --> 00:02:52.830
in a court called the Court of Admiralty,

00:02:52.830 --> 00:02:56.520
which was a type of court
that sat without a jury.

00:02:56.520 --> 00:03:01.090
The judge in the Court of Admiralty would

00:03:01.090 --> 00:03:06.090
ordinarily require the
merchant to pay a large fine

00:03:06.425 --> 00:03:10.370
in order to get back
his ship and his cargo.

00:03:10.370 --> 00:03:13.050
What the Boston merchants started to do,

00:03:13.050 --> 00:03:15.300
they were deeply unhappy
about these fines,

00:03:15.300 --> 00:03:20.300
they would bring an action in
a court that sat with a jury.

00:03:22.290 --> 00:03:27.290
It was an action for trespass
against the customs inspector.

00:03:27.467 --> 00:03:28.580
- [Professor Thomas] They
knew that juries could be

00:03:28.580 --> 00:03:33.580
really useful because, for
example, there was concerns about

00:03:33.960 --> 00:03:37.370
protecting litigants from bad laws,

00:03:37.370 --> 00:03:41.580
also concerns about
actions by the executive,

00:03:41.580 --> 00:03:43.140
and they were also concerned about

00:03:43.140 --> 00:03:44.430
corrupt and biased judges,

00:03:44.430 --> 00:03:48.110
so for all of these reasons
there was a real value

00:03:48.110 --> 00:03:49.790
put on civil juries.

00:03:49.790 --> 00:03:52.410
- [Kim] Just for our general information,

00:03:52.410 --> 00:03:54.890
how exactly is a civil trial different

00:03:54.890 --> 00:03:56.563
from a criminal trial?

00:03:58.364 --> 00:04:00.000
- [Professor Thomas] In a civil trial,

00:04:00.000 --> 00:04:03.980
someone is suing and wants damages

00:04:03.980 --> 00:04:07.122
for something that went wrong.

00:04:07.122 --> 00:04:09.720
So if, for example, you're
in an employment situation

00:04:09.720 --> 00:04:13.020
and you allege your employer
discriminated against you,

00:04:13.020 --> 00:04:18.020
you can bring a civil case
and you can try to get damages

00:04:19.010 --> 00:04:23.670
or money for the wrong that
was committed against you.

00:04:23.670 --> 00:04:24.930
In that type of case,

00:04:24.930 --> 00:04:26.390
people who are trying to prove the case

00:04:26.390 --> 00:04:29.340
have to prove by a
preponderance of the evidence

00:04:29.340 --> 00:04:31.610
that this is what happened to you,

00:04:31.610 --> 00:04:34.160
that discrimination occurred.

00:04:34.160 --> 00:04:36.610
Then in the criminal
context, on the other hand,

00:04:36.610 --> 00:04:39.660
someone is accused of doing a crime

00:04:42.094 --> 00:04:44.560
and sometimes there's a
grand jury that decides

00:04:44.560 --> 00:04:46.420
whether that case should
proceed against you,

00:04:46.420 --> 00:04:49.170
and then a criminal jury
decides whether or not

00:04:49.170 --> 00:04:51.860
you committed that crime
and they have to decide by

00:04:51.860 --> 00:04:53.280
beyond a reasonable doubt.

00:04:53.280 --> 00:04:54.810
So the standard is different.

00:04:54.810 --> 00:04:57.050
For criminal cases it's
beyond a reasonable doubt

00:04:57.050 --> 00:05:00.740
versus in a civil case by a
preponderance of the evidence.

00:05:00.740 --> 00:05:03.610
So it's a higher standard
to prove someone is guilty

00:05:03.610 --> 00:05:06.580
of a crime than in a civil
case to actually win.

00:05:06.580 --> 00:05:09.640
You see this in the O.J. Simpson case,

00:05:09.640 --> 00:05:14.640
where he's not convicted
but they actually sued him

00:05:15.501 --> 00:05:18.460
in a civil case and they actually won,

00:05:18.460 --> 00:05:20.100
and there were different standards.

00:05:20.100 --> 00:05:21.880
- [Kim] You kind of see throughout

00:05:22.915 --> 00:05:25.410
the fourth through eight amendments,

00:05:25.410 --> 00:05:29.163
which deal with the
protection of the accused,

00:05:30.130 --> 00:05:33.062
quite an emphasis on juries.

00:05:33.062 --> 00:05:37.548
Why were the Framers so keen on juries?

00:05:37.548 --> 00:05:40.930
- [Professor Lerner] In the
Revolutionary Era in particular,

00:05:40.930 --> 00:05:43.470
when tensions between
the American colonies

00:05:43.470 --> 00:05:45.840
and Britain were very high,

00:05:45.840 --> 00:05:49.630
juries were one way
that Americans could get

00:05:49.630 --> 00:05:52.880
popular representation in government.

00:05:52.880 --> 00:05:55.440
They were not allowed to elect

00:05:55.440 --> 00:05:57.183
members of the British Parliament.

00:05:58.210 --> 00:06:03.210
They did elect members of
the colonial legislatures,

00:06:04.080 --> 00:06:09.040
but increasingly the British
government was taking power

00:06:09.040 --> 00:06:11.113
from the colonial legislatures.

00:06:12.210 --> 00:06:17.210
So, this was a way that
without an elected legislature

00:06:18.820 --> 00:06:21.820
the colonists could get representation.

00:06:21.820 --> 00:06:24.850
John Adams wrote a very
interesting passage

00:06:24.850 --> 00:06:28.480
in his diary in 1771.

00:06:28.480 --> 00:06:31.590
He wrote that juries were like

00:06:31.590 --> 00:06:34.440
popularly elected legislatures.

00:06:34.440 --> 00:06:38.633
That they served that function
in the American colonies.

00:06:39.713 --> 00:06:41.810
- [Professor Thomas] There
were some concerns about

00:06:41.810 --> 00:06:44.450
protection for debtors,

00:06:44.450 --> 00:06:45.920
that was a big issue at the time,

00:06:45.920 --> 00:06:50.920
and there were arguments that
juries could really protect

00:06:50.940 --> 00:06:54.910
litigants from bad laws
that the legislature passed,

00:06:54.910 --> 00:06:58.270
from actions by the executive,

00:06:58.270 --> 00:07:02.033
and from potentially
corrupt and biased judges.

00:07:03.000 --> 00:07:07.200
It wasn't the case that
the Framers believed

00:07:07.200 --> 00:07:10.500
that the jury was actually perfect,

00:07:10.500 --> 00:07:15.150
but they thought that the jury
was the best decision maker.

00:07:15.150 --> 00:07:16.510
- [Kim] It seems that
the Seventh Amendment

00:07:16.510 --> 00:07:20.350
has a very specific origin

00:07:20.350 --> 00:07:22.770
in the history of the Revolutionary War

00:07:22.770 --> 00:07:25.860
and in some things that were
very dear to the founders.

00:07:25.860 --> 00:07:29.160
What are some of the ways
that it has grown and changed

00:07:29.160 --> 00:07:31.153
in the years since then?

00:07:31.153 --> 00:07:35.520
- [Professor Lerner] There is,
as you see in the amendment,

00:07:35.520 --> 00:07:39.350
a $20 amount and controversy requirement

00:07:39.350 --> 00:07:40.363
is what we call it,

00:07:41.570 --> 00:07:44.580
and that remains in force today

00:07:44.580 --> 00:07:48.470
even though there has been
considerable inflation,

00:07:48.470 --> 00:07:53.070
but still we've stuck with the $20 limit.

00:07:53.070 --> 00:07:56.750
The difficulty is today
that very, very few cases

00:07:56.750 --> 00:08:01.750
go to juries, and that is
true of the federal courts

00:08:01.970 --> 00:08:04.197
and also the state courts.

00:08:04.197 --> 00:08:06.028
- [Professor Thomas] Yeah,
that's one of the astounding

00:08:06.028 --> 00:08:07.470
things that many people don't know about.

00:08:07.470 --> 00:08:12.210
That less than 1% of civil cases,

00:08:12.210 --> 00:08:14.540
and we have the federal courts
as well as the state courts,

00:08:14.540 --> 00:08:16.660
but in both of those venues,

00:08:16.660 --> 00:08:17.770
federal courts and state courts,

00:08:17.770 --> 00:08:22.770
less than 1% of civil
cases are tried by juries.

00:08:22.790 --> 00:08:23.930
- [Kim] Wow, so what happened there?

00:08:23.930 --> 00:08:26.810
How did we get from a point
where the majority of the cases

00:08:26.810 --> 00:08:30.482
went before a jury to less than 1%?

00:08:30.482 --> 00:08:32.040
- [Professor Lerner] One
thing that's affected

00:08:32.040 --> 00:08:34.240
how many cases go to a jury

00:08:34.240 --> 00:08:37.600
is that judges now have more power

00:08:37.600 --> 00:08:41.430
to resolve disputes at an early stage.

00:08:41.430 --> 00:08:45.150
Parties can file a motion
to dismiss the case,

00:08:45.150 --> 00:08:50.150
if they argue that the other
side did not have a claim

00:08:50.980 --> 00:08:53.900
that would hold up under law.

00:08:53.900 --> 00:08:57.937
Judges can dismiss a case if
they find that that's correct.

00:08:57.937 --> 00:09:00.010
- [Professor Thomas] Around
the 1930 period of time,

00:09:00.010 --> 00:09:02.450
you actually see a number of decisions

00:09:02.450 --> 00:09:03.500
against jury authority

00:09:03.500 --> 00:09:05.390
where the Supreme Court actually had ruled

00:09:05.390 --> 00:09:08.941
in favor of jury authority
on the exact same issue.

00:09:08.941 --> 00:09:11.700
So, something's going
on in this time frame,

00:09:11.700 --> 00:09:13.728
around the 1930 period of time.

00:09:13.728 --> 00:09:16.950
It's not exactly easy to
figure out what that is,

00:09:16.950 --> 00:09:18.980
but some of the things that I've seen

00:09:18.980 --> 00:09:22.140
in some of the public
documents that are out there,

00:09:22.140 --> 00:09:23.520
you actually see comments

00:09:23.520 --> 00:09:27.030
including by a former
Supreme Court Justice

00:09:27.030 --> 00:09:29.943
saying that judges are
actually better than juries.

00:09:32.068 --> 00:09:35.317
A New York State judge
stated around this time,

00:09:35.317 --> 00:09:38.339
"Yes, a judge should be
preferred to a jury."

00:09:38.339 --> 00:09:42.720
That's certainly part of
what's going on in the story,

00:09:42.720 --> 00:09:45.150
and then part of what
was going on in the story

00:09:45.150 --> 00:09:49.250
may be to do with the
juries getting more diverse

00:09:49.250 --> 00:09:51.520
around this period of time,

00:09:51.520 --> 00:09:55.520
and maybe there's an
effort by other certain

00:09:55.520 --> 00:09:59.910
parts of society to
not want diverse juries

00:09:59.910 --> 00:10:01.870
to decide their cases.

00:10:01.870 --> 00:10:03.940
These are just a couple of different ideas

00:10:03.940 --> 00:10:05.940
that I think are contributors

00:10:05.940 --> 00:10:08.583
to why juries decide few cases today.

00:10:09.480 --> 00:10:11.250
- [Kim] Interesting,
and so by this diversity

00:10:11.250 --> 00:10:13.900
do you mean like diversity of
people from different classes

00:10:13.900 --> 00:10:16.000
or different genders or different races?

00:10:16.000 --> 00:10:18.987
What kind of diversity is
entering in that time period?

00:10:18.987 --> 00:10:21.793
- [Professor Thomas] Particularly
we're talking about ...

00:10:21.793 --> 00:10:25.610
We'd be talking about
sex and race, yeah, yeah,

00:10:25.610 --> 00:10:30.410
but I think class is definitely
part of that today as well.

00:10:30.410 --> 00:10:33.650
Then another example that
is something that I've spent

00:10:33.650 --> 00:10:36.230
a good amount of time in
my career talking about

00:10:36.230 --> 00:10:38.780
is something called summary judgment.

00:10:38.780 --> 00:10:41.040
Summary judgment is a procedure

00:10:41.040 --> 00:10:45.500
where a judge can decide what
a reasonable jury could find,

00:10:45.500 --> 00:10:48.020
and if the judge decides a reasonable jury

00:10:48.020 --> 00:10:51.160
could not find for the
person who brought the case,

00:10:51.160 --> 00:10:52.870
the judge can dismiss the case.

00:10:52.870 --> 00:10:56.110
If someone brings a case for
employment discrimination

00:10:56.110 --> 00:11:00.290
and there's discovery and that
is documents being exchanged

00:11:00.290 --> 00:11:03.660
between the parties and depositions
or questions being asked

00:11:03.660 --> 00:11:05.180
between different witnesses,

00:11:05.180 --> 00:11:10.180
and so then an employer can
say, "Okay, you accused us

00:11:10.187 --> 00:11:11.437
"of employment discrimination,

00:11:11.437 --> 00:11:13.577
"but we think you don't
have enough evidence,

00:11:13.577 --> 00:11:16.967
"and Judge, we think
that no reasonable jury

00:11:16.967 --> 00:11:19.267
"could find for this employee.

00:11:19.267 --> 00:11:21.037
"You should order summary judgment for us

00:11:21.037 --> 00:11:23.500
"and throw this case out of court."

00:11:23.500 --> 00:11:27.750
What has actually happened
is in over 70% of the cases

00:11:27.750 --> 00:11:32.500
where a employer makes a
motion for summary judgment

00:11:32.500 --> 00:11:34.820
in an employment discrimination case,

00:11:34.820 --> 00:11:39.820
that case will be dismissed
in whole or in part.

00:11:40.637 --> 00:11:44.197
- [Professor Lerner] So,
judges can in certain cases

00:11:44.197 --> 00:11:46.760
end the case before it gets to a jury,

00:11:46.760 --> 00:11:50.720
but by far the most common
way that a dispute ends

00:11:50.720 --> 00:11:53.280
is by settlement between the parties.

00:11:53.280 --> 00:11:55.560
What has encouraged settlement

00:11:55.560 --> 00:11:59.110
is that it's much more
expensive to bring a case

00:11:59.110 --> 00:12:01.470
and go to jury verdict today

00:12:01.470 --> 00:12:04.280
than it was back at the
time of the founding.

00:12:04.280 --> 00:12:06.950
One of the reasons it's
so much more expensive

00:12:06.950 --> 00:12:11.950
is that we now have a system
of what we call discovery.

00:12:12.630 --> 00:12:16.610
That is the parties can ask
for information from each other

00:12:16.610 --> 00:12:18.380
before the trial.

00:12:18.380 --> 00:12:21.280
They can formally question witnesses,

00:12:21.280 --> 00:12:23.320
they can ask for documents,

00:12:23.320 --> 00:12:27.090
they can require questions to be answered.

00:12:27.090 --> 00:12:29.700
All of that goes on before the trial,

00:12:29.700 --> 00:12:34.320
and that's expensive to do
and they want to save money.

00:12:34.320 --> 00:12:37.990
They want to save money that's involved in

00:12:37.990 --> 00:12:39.750
this pretrial discovery,

00:12:39.750 --> 00:12:42.640
and they want to save money at the trial,

00:12:42.640 --> 00:12:45.990
and so they go ahead and they settle.

00:12:45.990 --> 00:12:49.180
The reason it's so important
for the parties to save money

00:12:49.180 --> 00:12:54.130
is that in our system each
side in a dispute, in a case,

00:12:54.130 --> 00:12:58.680
has to pay its own legal
fees, even if they win,

00:12:58.680 --> 00:13:03.455
and so the parties have an
incentive to settle the case.

00:13:03.455 --> 00:13:06.930
That way they save expenses

00:13:06.930 --> 00:13:09.880
and also they get a predictable result.

00:13:09.880 --> 00:13:13.020
Many parties are afraid
of going before a jury

00:13:13.020 --> 00:13:15.800
because they don't know
what the result will be.

00:13:15.800 --> 00:13:19.990
For all these reasons, settlement
has become very important.

00:13:19.990 --> 00:13:23.683
Much more so than it was at
the time of the founding.

00:13:24.620 --> 00:13:26.730
- [Kim] So, we've learned
that the Seventh Amendment's

00:13:26.730 --> 00:13:30.470
protections for jury trials in civil cases

00:13:30.470 --> 00:13:33.690
derives from the context
of the Revolutionary War,

00:13:33.690 --> 00:13:37.260
when colonists felt that juries
were perhaps the only way

00:13:37.260 --> 00:13:39.260
they could have a voice in the law.

00:13:39.260 --> 00:13:43.630
Despite this protection,
fewer than 1% of civil cases

00:13:43.630 --> 00:13:45.000
go to trial today,

00:13:45.000 --> 00:13:48.380
since trials have become
prohibitively expensive

00:13:48.380 --> 00:13:50.590
and their outcomes are unpredictable.

00:13:50.590 --> 00:13:52.800
To learn more about the Seventh Amendment,

00:13:52.800 --> 00:13:54.790
visit the National Constitution Center's

00:13:54.790 --> 00:13:56.560
Interactive Constitution

00:13:56.560 --> 00:13:58.150
and Khan Academy's resources

00:13:58.150 --> 00:14:00.143
on U.S. government and politics.