Amicus Curiae Brief — Corrine Morgan Thomas, et al., Petitioners v. Humboldt County, California, et al.

No. 24-1180

───────────────────────────

In the

Supreme Court of the United States

──────────────────────────

CORRINE MORGAN THOMAS, ET AL.,

Petitioners,

v.

HUMBOLDT COUNTY, CALIFORNIA, ET AL.,

Respondents.

──────────────────────────

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

──────────────────────────

AMICUS CURIAE BRIEF OF

THE BUCKEYE INSTITUTE

IN SUPPORT OF PETITIONERS

──────────────────────────

David C. Tryon

Counsel of Record for Amicus Curiae

Alex M. Certo

THE BUCKEYE INSTITUTE

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

i

QUESTION PRESENTED

Whether the Seventh Amendment right to a jury

trial in suits at common law is incorporated against

the States by the Fourteenth Amendment.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................ i

TABLE OF AUTHORITIES........................................ iv

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF THE ARGUMENT............................. 1

ARGUMENT ................................................................. 3

I. The Restoration of the Lost Privileges or

Immunities Clause ............................................... 3

A. The Privileges or Immunities Clause was lost

out of fear: Fear not—bring it back ............... 3

B. The Privileges or Immunities Clause exists—

it is not an inkblot ........................................... 4

II. The Court’s replacement of the Privileges or

Immunities Clause with the atextual

substantive due process doctrine compounded

the erroneous displacement of the Privileges or

Immunities Clause ............................................... 6

III. What does the Privileges or Immunities Clause

mean for the right to a jury trial? ....................... 9

A. The Fourteenth Amendment was intended to

incorporate the first eight amendments

against the states .......................................... 10

B. Privileges or Immunities includes the right

to trial by jury in civil suits .......................... 14

iii

IV. This case is an excellent vehicle to narrowly

reinvigorate the Privileges or Immunities

Clause without opening Pandora’s box ............. 17

CONCLUSION ............................................................ 19

iv

TABLE OF AUTHORITIES

Cases

Adamson v. People of State of California,

332 U.S. 46 (1947).................................................... 13

Bell v. State of Md.,

378 U.S. 226 (1964) ................................................... 3

Bostock v. Clayton Cnty. Georgia,

590 U.S. 644 (2020) ................................................... 6

Corfield v. Coryell,

6 F. Cas. 546 (C.C.E.D. Pa. 1823) .................... 11, 12

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................... 10, 11

Dobbs v. Jackson Women’s Health Organization,

597 U.S. 215 (2022) ......................................... 7, 8, 17

Gamble v. United States,

587 U.S. 678 (2019) ................................................... 5

Giles v. California,

554 U.S. 353 (2008) ................................................. 10

Haaland v. Brackeen,

599 U.S. 255 (2023) ................................................... 5

Malloy v. Hogan,

378 U.S. 1 (1964)...................................................... 13

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .................................... 9

McDonald v. City of Chicago, Ill.,

561 U.S. 742 (2010) ............................. 7, 8, 17, 18, 19

New York State Rifle & Pistol Ass’n. Inc. v. Bruen,

597 U.S. 1 (2022)................................................ 10, 18

v

Perttu v. Richards,

145 S. Ct. 1793 (2025) ............................................. 16

Saenz v. Roe,

536 U.S. 489 (1999) ................................................. 18

SEC v. Jarkesy,

603 U.S. 109 (2024) ................................................. 16

Slaughter–House Cases,

83 U.S. (16 Wall.) 36 (1873) ...................................... 6

Timbs v. Indiana,

586 U.S. 146 (2019) ................................................. 17

United States v. Cruikshank,

92 U.S. 542 (1875)...................................................... 6

United States v. Dickson,

40 U.S. 141 (1841)...................................................... 5

Other Authorities

“Because it’s there”, Forbes (Oct. 29, 2001) ................. 4

Akhil R. Amar, Forward: The Document and the

Doctrine, 114 Harv. L. Rev. 26, 123 (2000)............ 14

Akhil Reed Amar, Substance and Method in the

Year 2000, 28 Pepperdine L.Rev. 601 (2001) .......... 6

Anthony B. Sanders, “Privileges and/or

Immunities” in State Constitutions Before the

Fourteenth Amendment, 26 Geo. Mason L. Rev.

1059 (2019) ............................................................... 10

Caleb Nelson, Stare Decisis and Demonstrably

Erroneous Precedents, 87 Va. L. Rev. 1 (2001)........ 5

vi

Clarence Thomas, The Higher Law Background of

the Privileges or Immunities Clause of the

Fourteenth Amendment, 12 Harv. J.L. & Pub.

Pol’y 63 (1989) ............................................................ 4

Cong. Globe, 39th Cong., 1st Sess. 2765 (1866) ....... 14

David M. Wagner, Thomas v. Scalia on the

Constitutional Rights of Parents: Privileges and

Immunities, or “Just Spinach”?, 24 Regent U. L.

Rev. 49 (2012)............................................................. 7

Eric R. Claeys, Blackstone’s Commentaries and the

Privileges or Immunities of United States

Citizens: A Modest Tribute to Professor Siegan,

45 San Diego L. Rev. 777 (2008) ............................ 11

J.K. Rowling, The Sorting Hat, Wizarding World ..... 9

John Hart Ely, Democracy and Distrust (1980) ......... 4

Josh Blackman & Ilya Shapiro, Keeping Pandora’s

Box Sealed: Privileges or Immunities, the

Constitution in 2020, and Properly Extending the

Right to Keep and Bear Arms to the States, 8

Geo. J.L. & Pub. Pol’y 1 (2010) ............................. 3, 7

Kevin Christopher Newsom, Setting

Incorporationism Straight: A Reinterpretation of

the Slaughter-House Cases, 109 Yale L.J. 643

(2000) .......................................................................... 9

Michael Kent Curtis, Historical Linguistics,

Inkblots, and Life After Death: The Privileges or

Immunities of Citizens of the United States, 78

N.C. L. Rev. 1071 (2000) ..................................... 3, 11

vii

Nomination of Robert H. Bork to be Associate

Justice of the Supreme Court of the United

States: Hearings Before the S. Comm. on the

Judiciary, 100th Cong. 224 (1987) ........................... 4

Randy E. Barnett, Three Keys to the Original

Meaning of the Privileges or Immunities Clause,

43 Harvard J. L. Pub. Pol’y 1 (2020) .......... 13, 15, 16

Richard L. Aynes, Constricting the Law of

Freedom: Justice Miller, the Fourteenth

Amendment, and the Slaughter-House Cases, 70

Chi.-Kent L. Rev. 627 (1994) .................................... 6

Steven Calabresi & Sarah Agudo, Individual

Rights Under State Constitutions When the

Fourteenth Amendment Was Ratified in 1868:

What Rights Are Deeply Rooted in American

History and Tradition?, 87 Tex. L. Rev. 7

(2008) .................................................................. 15, 16

William Blackstone, Commentaries on the Laws of

England (W.S. Hein & Co. 1992) ........................... 11

Constitutional Provisions

Del. Declaration of Rights of 1776, § 13.................... 15

Mass. Const. of 1780, art. XV .................................... 15

Md. Const. of 1776, art. III......................................... 15

N.J. Const. of 1776, art. XXII .................................... 15

Pa. Const. of 1776, art. XI .......................................... 15

R.I. Const. of 1842, art. I, § 15 ................................... 16

U.S. Const. amend. XIV, § 1, cl. 2.......................... 3, 10

U.S. Const. art. VI, cl. 2................................................ 5

1

INTEREST OF AMICUS CURIAE1

The Buckeye Institute was founded in 1989 as an

independent research and educational institution—a

think tank—to formulate and promote free-market

policy in the states. The Buckeye Institute

accomplishes its mission by performing timely and

reliable research on key issues, compiling and

synthesizing data, formulating free-market policies,

and

marketing

those

policy

solutions

for

implementation in Ohio and replication across the

country. The Buckeye Institute also files lawsuits and

submits amicus briefs to fulfill its mission. The

Buckeye Institute is a nonpartisan, nonprofit, taxexempt organization, as defined by I.R.C. section

501(c)(3).

SUMMARY OF THE ARGUMENT

This case presents an opportunity for the Court to

examine whether the Privileges or Immunities Clause

protects the right to a state civil jury. Although

Petitioners argue that this right is incorporated via

the Due Process Clause, Petitioners have preserved

the privileges or immunities argument in footnote 3.

The Privileges or Immunities Clause provides a

stronger constitutional foundation than the

substantive due process doctrine because the former

relies on the text and original meaning of the

Constitution. Declaring that the Constitution

1 As required by Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amicus curiae made any monetary contribution toward

the preparation or submission of this brief. Counsel timely

provided the notice required by Rule 37.2.

2

guarantees the right to a jury in a state civil trial

using the substantive due process doctrine’s atextual

analysis undermines the legitimacy of any

incorporation of the Seventh Amendment and

diminishes respect for the law in general. The

reasoning in constitutional law decisions is, in some

ways, more important than the ultimate decision. If

the reasoning is deficient, it is not a legal decision—it

is a policy choice.

There is extensive historical evidence of what

constituted privileges or immunities of citizens at the

time the Constitution and the Fourteenth Amendment

were ratified. Those privileges or immunities included

the right to a civil jury. Here, the Court has an

opportunity to revitalize the Privileges or Immunities

Clause. In doing so, the Court can begin to correct a

long-recognized misstep without opening the

floodgates of new “substantive” due process rights.

The Court need not decide the applicability of the

Privileges or Immunities Clause in other contexts;

that broad question is not before the Court. Leaving

past substantive due process decisions in place as the

Privileges or Immunities Clause develops will provide

a lifeboat for previously recognized rights as the law

progresses.

3

ARGUMENT

I. The Restoration of the Lost Privileges or

Immunities Clause

The Privileges or Immunities Clause is simple: “No

State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States.” U.S. Const. amend. XIV, § 1, cl. 2. Yet

the Court has largely ignored it. It is even known as

“the lost clause.” Michael Kent Curtis, Historical

Linguistics, Inkblots, and Life After Death: The

Privileges or Immunities of Citizens of the United

States, 78 N.C. L. Rev. 1071, 1075 (2000). While lost or

ignored for a time, the Privileges or Immunities

Clause can and should be found and restored to its

respected place in American jurisprudence.

A. The Privileges or Immunities Clause was

lost out of fear: Fear not—bring it back.

Fear of the unknown impedes us from doing many

things. But fear of giving the original meaning to the

Constitution should never be an excuse to disregard

the text. The reluctance to fully explore the Privileges

or Immunities Clause “has been due to a fear of

creating constitutional refuges for a host of rights

historically subject to regulation.” Bell v. State of Md.,

378 U.S. 226, 250 (1964) (Douglas, J., concurring in

part).

Fears of expanding the scope of unenumerated

rights are nothing new. Josh Blackman & Ilya

Shapiro, Keeping Pandora’s Box Sealed: Privileges or

Immunities, the Constitution in 2020, and Properly

Extending the Right to Keep and Bear Arms to the

States, 8 Geo. J.L. & Pub. Pol’y 1, 67 (2010). Over

4

thirty years ago, Justice Thomas recognized that

“[t]he expression of unenumerated rights today makes

conservatives nervous, while at the same time

gladdening the hearts of liberals.” Clarence Thomas,

The Higher Law Background of the Privileges or

Immunities Clause of the Fourteenth Amendment, 12

Harv. J.L. & Pub. Pol’y 63, 63 (1989). Professor John

Ely has recognized this fear, noting, “The Court hasn’t

moved an inch on privileges or immunities. The reason

has to be that the invitation extended by the language

of the clause is so frightening.” John Hart Ely,

Democracy and Distrust 23 (1980).

While it is appropriate to be cautious in

determining what rights are encompassed by the

Privileges or Immunities Clause, that caution does not

permit the Court to pretend it is not there.

B. The Privileges or Immunities Clause

exists—it is not an inkblot.2

Words in our governing documents have meaning

and are meant to bind and direct those who govern us.

When George Leigh Mallory was asked why he wanted

to climb Mount Everest, he famously replied, “because

it’s there.” “Because it’s there”, Forbes (Oct. 29, 2001).3

And when asked why the Court should pay attention

2 See Nomination of Robert H. Bork to be Associate Justice of the

Supreme Court of the United States: Hearings Before the S. Comm.

on the Judiciary, 100th Cong. 224 (1987) (statement of Judge

Robert H. Bork) (noting that he could not interpret the Ninth

Amendment any more than if the words of the Constitution were

obscured by an inkblot).

3 https://www.forbes.com/global/2001/1029/060.html?sh=28b98af2

0802.

5

to the Privileges or Immunities Clause after all these

years, the answer is the same—because it’s there.

The Court has an obligation to correct mistaken

interpretations of the Constitution. Gamble v. United

States, 587 U.S. 678, 718 (2019) (Thomas, J.,

concurring) (“When faced with a demonstrably

erroneous precedent, my rule is simple: We should not

follow it.”); see generally Caleb Nelson, Stare Decisis

and Demonstrably Erroneous Precedents, 87 Va. L.

Rev. 1 (2001). Indeed, in recent years, the Court has

begun to correct its mistakes on constitutional

interpretation. “Increasingly, it has emphasized

original meaning in constitutional interpretation.”

Haaland v. Brackeen, 599 U.S. 255, 330 (2023)

(Gorsuch, J., concurring).

Judges should never ignore, delete, or disregard

constitutional provisions—especially those added via

constitutional amendments for the purpose of

correcting

past

errors.

Judicially

changing

constitutional provisions denies the People’s will

implemented through an extensive and difficult

process. The Fourteenth Amendment was no fluke, its

verbiage was not accidental, and its purpose was not

illusory. Every clause was debated and ratified by the

People’s representatives.

“[I]t is not to be forgotten, that ours is a

government of laws, and not of men; and that the

judicial department has imposed upon it by the

constitution the solemn duty to interpret the

laws . . . .” United States v. Dickson, 40 U.S. 141, 162

(1841). The Constitution is the supreme law of the

land. U.S. Const. art. VI, cl. 2. While prior rulings

have ignored clauses or provisions, that is no excuse

6

for the Court to continue to turn a blind eye. When

faced with the text of the Constitution, pretending the

words do not exist undermines the rule of law. The

“same judicial humility that requires [the Court] to

refrain from adding to [the Constitution] requires [it]

to refrain from diminishing” the Constitution. Bostock

v. Clayton Cnty. Georgia, 590 U.S. 644, 681 (2020).

II. The Court’s replacement of the Privileges or

Immunities Clause with the atextual

substantive

due

process

doctrine

compounded the erroneous displacement of

the Privileges or Immunities Clause.

No serious scholar contends that the Court’s

dismissal of the Privileges or Immunities Clause was

correct. Akhil Reed Amar, Substance and Method in

the Year 2000, 28 Pepperdine L.Rev. 601, 631 n. 178

(2001). Indeed, it is worth noting that the SlaughterHouse Cases were “decided on a set a facts and at a

time not especially conducive to a generous reading of

the Amendment.” Id. (citing Richard L. Aynes,

Constricting the Law of Freedom: Justice Miller, the

Fourteenth Amendment, and the Slaughter-House

Cases, 70 Chi.-Kent L. Rev. 627, 655–78 (1994)).

Following the Court’s diminution of the Privileges

or Immunities Clause in the Slaughter–House Cases,

83 U.S. (16 Wall.) 36 (1873), and United States v.

Cruikshank, 92 U.S. 542 (1875), individual liberties

became largely unprotected against state erosion.

Without the Privileges or Immunities Clause, the

Court needed a way to protect liberties that were being

deprived through legitimate processes. To begin

correcting this error, the Court turned to the

Fourteenth Amendment’s Due Process Clause.

7

McDonald v. City of Chicago, Ill., 561 U.S. 742, 759–

67 (2010).

But this doctrinal legerdemain simply piled one

mistake upon another. “ ‘[S]ubstantive due process’ is

an oxymoron that ‘lack[s] any basis in the

Constitution. Dobbs v. Jackson Women’s Health

Organization, 597 U.S. 215, 331 (2022) (Thomas, J.,

concurring) (citation omitted). The text and history of

the Constitution “provide little support for modern

substantive due process doctrine.” Id. (Thomas, J.,

concurring) (citation omitted). “The notion that a

constitutional provision that guarantees only ‘process’

before a person is deprived of life, liberty, or property

could define the substance of those rights strains

credulity for even the most casual users of words.” Id.

(Thomas, J., concurring) (citation omitted).

Justice Scalia explained the difficulty in using the

doctrine most succinctly: “It’s spinach.” David M.

Wagner, Thomas v. Scalia on the Constitutional Rights

of Parents: Privileges and Immunities, or “Just

Spinach”?, 24 Regent U. L. Rev. 49 (2012). See also

McDonald, 561 U.S. at 812 (Thomas, J., concurring in

part and concurring in the judgment) (noting that the

substantive due process doctrine leads to a complex

analysis “devoid of a guiding principle”). Petitioners

will “need to contend with all of [the Court’s] messy

precedents [on substantive due process] and the

accompanying balancing tests considering undue

burdens and other nebulous factors.” Blackman &

Shapiro, supra, at 26. Substantive due process

improperly “exalts judges at the expense of the People

from whom they derive their authority.” Dobbs, 597 at

333 (Thomas, J., concurring).

8

“[T]he original meaning of the Fourteenth

Amendment offers a superior alternative, and [ ] a

return to that meaning would allow this Court to

enforce the rights the Fourteenth Amendment is

designed to protect with greater clarity and

predictability than the substantive due process

framework has so far managed.” McDonald, 561 U.S.

at 812 (Thomas, J., concurring in part and concurring

in the judgment).

This is the perfect opportunity to compare the

analysis of incorporation under the substantive due

process doctrine and the Privileges or Immunities

Clause. The former leads to a complex analysis “devoid

of a guiding principle.” Id. (Thomas, J., concurring in

part and concurring in the judgment). The latter can

easily recognize that the right to a civil jury was a

right—a privilege—recognized by the constitutional

Founders and the Framers of the Fourteenth

Amendment. The opportunity to address this right’s

applicability to the states provides the Court with an

opportunity to correct “an error that cannot be allowed

to stand.” See Dobbs, 597 U.S. at 569.

This is certainly not the last time the Court will

have to sort through its substantive due process

jurisprudence if it is retained as the primary tool to

discern what rights the Fourteenth Amendment

encompasses. Without a discernible guiding principle,

substantive due process is little more than Godric

Gryffindor’s magic hat, sorting rights into categories

by some mystical process. J.K. Rowling, The Sorting

9

Hat, Wizarding World.4 Sooner or later, the Court will

need to—or at least should—make the break with

substantive due process and follow the more cogent,

and more textually accurate.

III. What does the Privileges or Immunities

Clause mean for the right to a jury trial?

The diminution of the Privileges or Immunities

Clause in the Slaughter–House Cases makes

discerning the Clause’s meaning more difficult.

However, one thing is sure: The Privileges or

Immunities Clause means something. See Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (“It cannot

be presumed that any clause in the constitution is

intended to be without effect.”). 5 And an exploration of

the Privileges or Immunities Clause reveals that it

included the right to a trial by jury in civil suits.

4 https://www.wizardingworld.com/writing-by-jk-rowling/the-

sorting-hat (last visited Oct. 11, 2023).

While the Slaughter-House Cases did greatly diminish the

Privilege or Immunities Clause, some commentators have pointed

out that the Slaughter-House Cases did not eviscerate it. See, e.g.,

Kevin Christopher Newsom, Setting Incorporationism Straight: A

Reinterpretation of the Slaughter-House Cases, 109 Yale L.J. 643,

646 (2000). (noting the view of many scholars and courts, but also

noting that even the Slaughter-House Court recognized that the

clause imposed some restrictions on the states.) That Court’s

narrow holding, which did not address the full scope of the

Privilege or Immunities Clause, should not restrict this Court’s

examination of this issue.

5

10

A. The Fourteenth Amendment was intended

to incorporate the first eight amendments

against the states.

When interpreting a clause in the Constitution, the

Court begins with the text: “No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States.” U.S.

Const. amend. XIV, § 1, cl. 2. The words “privileges”

and “immunities” as applied to citizens “had a long

historical acceptance and would not have sounded odd

to U.S. citizens in the 1860s, as it does to our modern

ears.” Anthony B. Sanders, “Privileges and/or

Immunities” in State Constitutions Before the

Fourteenth Amendment, 26 Geo. Mason L. Rev. 1059,

1060 (2019).

In New York State Rifle & Pistol Ass’n. Inc. v.

Bruen, 597 U.S. 1 (2022), the Court pointed to the

roadmap of history to examine dormant rights

contained in the Constitution. History informs

interpretation because “[c]onstitutional rights are

enshrined with the scope they were understood to

have when the people adopted them.” District of

Columbia v. Heller, 554 U.S. 570, 634–35 (2008). See

also Bruen, 597 U.S. at 25 (citing Giles v. California,

554 U.S. 353, 358 (2008)) (“If a litigant asserts the

right in court to ‘be confronted with the witnesses

against him, U.S. Const., amend. 6, we require courts

to consult history to determine that scope of that

right.”).

Looking to the history of privileges, Blackstone’s

commentaries expounded on the scope and limitations

of these privileges, starting with Magna Carta. See

generally William Blackstone, Commentaries on the

11

Laws of England (W.S. Hein & Co. 1992) (1766).

Blackstone explained that “Englishmen enjoy natural

rights under natural law.” Eric R. Claeys, Blackstone’s

Commentaries and the Privileges or Immunities of

United States Citizens: A Modest Tribute to Professor

Siegan, 45 San Diego L. Rev. 777, 790 (2008). “In

principle, these foundational statutes do not give

English subjects new rights; they merely ‘declare’ that

the subjects have in civil law rights they already enjoy

as a matter of natural law.” Id. Similarly, “American

colonial laws quite early claimed that the colonists

were entitled to all the ‘rights liberties immunities

priviledges [sic] and free customs’ enjoyed by ‘any

natural [sic] born subject of England,’ as articulated in

the Maryland Act for the Liberties of the People in

1639.” Curtis, supra, at 1094; see also Heller, 554 U.S.

at 592 (“[I]t has always been widely understood that

the Second Amendment, like the First and Fourth

Amendments, codified a pre-existing right.”).

Professor Claeys summarized that “privileges and

immunities relate to both natural and civil law. They

are creations of positive law, but with the purpose of

carrying the natural law into effect.” Claeys, supra, at

785.

Blackstone’s understanding aligns with the

subsequent decision in Corfield v. Coryell, 6 F. Cas. 546

(C.C.E.D. Pa. 1823) (Washington, Circuit J.), an early

circuit court decision widely regarded as the most

important case interpreting the original meaning of

the Privileges and Immunities Clause in Article IV,

and thus, relevant to interpreting the Privileges or

Immunities Clause of the Fourteenth Amendment.

In Corfield, Justice Bushrod Washington declared:

12

We feel no hesitation in confining these

expressions to those privileges and

immunities which are, in their nature,

fundamental; which belong, of right, to

the citizens of all free governments; and

which have, at all times, been enjoyed by

the citizens of the several states which

compose the Union, from the time of their

becoming

free,

independent,

and

sovereign. What these fundamental

principles are, it would perhaps be more

tedious than difficult to enumerate. They

may, however, be all comprehended

under the following general heads:

Protection by the government; the

enjoyment of life and liberty, with the

right to acquire and posses property of

every kind, and to pursue and obtain

happiness

and

safety;

subject

nevertheless to such restraints as the

government may justly prescribe for the

general good of the whole.

Id. at 551–52.

More recently, Professor Randy Barnett has argued

that the Privileges or Immunities Clause protects

privileges or immunities:

(1) which

are,

fundamental;

in

their

nature,

(2) which belong, of right, to the citizens

of all free governments; and

(3) which have been enjoyed by the

citizens of the several states which

13

compose this Union, from the time of

their becoming free, independent, and

sovereign.

Randy E. Barnett, Three Keys to the Original Meaning

of the Privileges or Immunities Clause, 43 Harvard J.

L. Pub. Pol’y 1, 9–10 (2020). He further argues that

privileges or immunities include various rights,

including common law rights regarding real property,

and the guarantees contained within the first eight

amendments. Id. See also Adamson v. People of State

of California, 332 U.S. 46, 71–72 (1947) (Black, J.,

dissenting) (noting that the original intent of the

Fourteenth Amendment included incorporating the

first eight amendments against the states), overruled

by Malloy v. Hogan, 378 U.S. 1 (1964). In addition to

Corfield, Professor Barnett also points to the Civil

Rights Act of 1866. Because many in Congress were

afraid that the southern Democrats would repeal the

Civil Rights Act, they supported a constitutional

amendment—the

Fourteenth

Amendment—to

“protect the fundamental rights of all United States

citizens from being abridged by state governments.”

Barnett, supra, at 6.

Professor Barnett’s interpretation of the Privileges

or Immunities Clause is supported by the sponsor of

that Clause. Michigan Senator Jacob Howard

introduced the Fourteenth Amendment in the Senate

as its designated sponsor and provided an explanation

of the Amendment. After quoting Justice

Washington’s Corfield opinion, Howard noted that

“the personal rights guaranteed and secured by the

first eight amendments of the Constitution” should be

added to the list of privileges and immunities. Cong.

14

Globe, 39th Cong., 1st Sess. 2765 (1866). Howard

listed some of these rights, including the “right of an

accused person . . . to be tried by an impartial jury of

the vicinage.” Id. Howard further explained that the

“great object” of the Privileges or Immunities Clause

is to “restrain the power of the States and compel them

at all times to respect these great fundamental

guarantees.” Id. at 2766.

Similarly, Professor Akhil Amar concluded—after

reviewing numerous scholars and other early sources,

and conducting his own analysis—that the Privileges

or Immunities Clause protects and presupposes “such

fundamental rights [as] are catalogued elsewhere in

documents that the American people have broadly

ratified, formally or informally.” See, e.g., Akhil R.

Amar, Forward: The Document and the Doctrine, 114

Harv. L. Rev. 26, 123 (2000). Of course, the first eight

amendments were formally ratified. Accordingly, it is

time for the Court to finally fulfill the Fourteenth

Amendment’s promise.

B. Privileges or Immunities includes the

right to trial by jury in civil suits.

Besides the explicit intent to incorporate the Bill of

Rights against the states through the Privileges or

Immunities Clause, Professor Barnett asserts that

rights protected under the Privileges or Immunities

Clause include those which (1) “are, in their nature,

fundamental;” (2) “belong, of right to the citizens of all

free governments;” and (3) have, at all times been

enjoyed by the citizens of the several states which

compose this Union, from the time of their becoming

free, independent, and sovereign . . . .” Barnett, supra

at 9–10.

15

Before the ratification of the Fourteenth

Amendment in 1868, every state except Louisiana had

enshrined in their constitutions the right to a jury trial

in civil suits, some dating back to the colonial period.

See Del. Declaration of Rights of 1776, § 13 (“[T]rial by

jury of facts where they arise is one of the greatest

securities of the lives, liberties and estates of the

people.”); Pa. Const. of 1776, art. XI (“[I]n

controversies respecting property, and in suits

between man and man, the parties have a right to trial

by jury, which ought to be held sacred.”); N.J. Const.

of 1776, art. XXII (“[T]he inestimable Right of Trial by

Jury shall remain confirmed, as a Part of the Law of

this Colony without Repeal for ever [sic].”); Md. Const.

of 1776, art. III (“[T]he inhabitant of Maryland are

entitled to the common law of England, and the trial

by Jury . . . used and practiced by the courts of law or

equity.”); Mass. Const. of 1780, art. XV (“In all

controversies concerning property, and in suits

between two or more persons . . . the parties have a

right to trial by jury; and this method of procedure

shall be held sacred.”).

By 1868, thirty-six of the recognized thirty-seven

states included some form of the right in their state

constitution. See Steven Calabresi & Sarah Agudo,

Individual Rights Under State Constitutions When the

Fourteenth Amendment Was Ratified in 1868: What

Rights Are Deeply Rooted in American History and

Tradition?, 87 Tex. L. Rev. 7, 77 (2008). Although only

eighteen of the thirty-six state constitutions explicitly

mentioned the right to a jury in civil suits, the others

include the right more generally. See, e.g., R.I. Const.

of 1842, art. I, § 15 (“The right of trial by jury shall

remain inviolate.”). “The original public meaning of a

16

clause generally protecting the right to a jury trial”—

like the one contained in the Rhode Island

Constitution— would “most likely have been

understood in 1868 as applying to civil as well as

criminal juries.” Calabresi & Agudo, supra, at 78.

The consensus among states before the ratification

of the Fourteenth Amendment was clear—the right to

a trial by jury in civil suits was a revered fundamental

principle. It is a right that has “been enjoyed by the

citizens of the several states which compose this

Union, from the time of their becoming free,

independent, and sovereign.” Barnett, supra at 9–10.

This Court recently confirmed that “ ‘[t]he right to

trial by jury is of such importance and occupies so firm

a place in our history and jurisprudence that any

seeming curtailment of the right has always been and

should be scrutinized with the utmost care.’ ” Perttu v.

Richards, 145 S. Ct. 1793, 1800 (2025) (quoting SEC

v. Jarkesy, 603 U.S. 109, 121 (2024)) (internal

quotation marks omitted).

Thus, regardless of the Seventh Amendment, the

right to a jury in civil suits is—and ought to be—

protected by the Privileges or Immunities Clause.

17

IV. This case is an excellent vehicle to narrowly

reinvigorate the Privileges or Immunities

Clause without opening Pandora’s box.

Shoehorning rights into the substantive due

process analysis should not be the Court’s preferred

methodology. The Court has become increasingly

skeptical of recognizing “new” rights through the

substantive due process doctrine. See Dobbs, 587 U.S.

at 237. Simply because the vehicle of substantive due

process is flawed is not a good reason to deny other

fundamental rights, namely the right to a jury trial.

Because incorporating the right to a jury trial in civil

suits against the states is a natural consequence of the

Fourteenth Amendment, the Court should decide this

case under the Privileges or Immunities Clause rather

than continuing down the erroneous substantive due

process path.

Here, the Court has the opportunity to do what it

did not accomplish in other cases where it could have

utilized the Privileges or Immunities Clause. See

McDonald, 561 U.S. at 806 (Thomas, J., concurring in

part and concurring in the judgment) (“[H]istory

confirms what the text of the Privileges or Immunities

Clause most naturally suggests . . . the Clause

establishes a minimum baseline of federal rights, and

the constitutional right to keep and bear arms plainly

was among them.”). See also Timbs v. Indiana, 586

U.S. 146, 157 (2019) (Gorsuch, J., concurring) (“[T]he

appropriate vehicle for incorporation may well be the

Fourteenth Amendment’s Privileges or Immunities

Clase, rather than, as this Court has long assumed,

the Due Process Clause.”). In Saenz, the Court did—

at least briefly—“breathe new life into the previously

18

dormant Privileges or Immunities Clause of the

Fourteenth Amendment.” Saenz v. Roe, 536 U.S. 489,

511 (1999) (Rehnquist, C.J., dissenting). The Court

explained, “Despite fundamentally differing views

concerning the coverage of the Privileges or

Immunities Clause . . . it has always been common

ground that this Clause protects [certain rights].” Id.

at 503. And because “the demise of the Privileges or

Immunities Clause has contributed in no small part to

the current disarray of [the Court’s] Fourteenth

Amendment jurisprudence,” id. at 527–528 (Thomas,

J., dissenting), the Court should take this opportunity

to recognize that the right to a civil jury is a privilege

or immunity of all citizens of the United States.

While this case will not result in a full exposition

of the scope of the Clause, it will allow future litigants

and courts to finally recognize a fully functional

constitutional clause. Turning to the Privileges or

Immunities Clause in this case does not grant a

license to create new rights or new governmental

obligations. Rather, it is a recognition that history

provides the key to discerning constitutional rights.

“[R]eliance on history to inform the meaning of

constitutional text—especially text meant to codify a

pre-existing right—is . . . more legitimate, and more

administrable, than asking judges to ‘make difficult

empirical judgments.’ ” Bruen, 597 U.S. at 25 (quoting

McDonald, 561 U.S. at 790–91).

The Court need not decide in this case the full scope

of the Privileges or Immunities Clause. “The question

presented in this case is not whether [the Court’s]

entire Fourteenth Amendment jurisprudence must be

preserved or revised, but only whether, and to what

19

extent, a particular clause in the Constitution protects

the particular right at issue here.” McDonald, 561

U.S. at 813 (Thomas, J., concurring in part and

concurring in the judgment). The Court passed on the

opportunity to re-evaluate the Privileges or

Immunities Clause in McDonald, partially because

scholars who agreed that the interpretation in the

Slaughter-House Cases was wrong could not agree on

the full scope of the clause. Id. at 758. Here, the right

to a civil jury trial, guaranteed by the Seventh

Amendment, is as close to a privilege or immunity as

one can imagine. However, until the Court opens the

door, the Privileges or Immunities Clause will remain

an academic exercise.

This case provides a clean vehicle to decide this

issue. The only question presented to the Court is

whether the right to a civil jury trial is incorporated

against the states through the Fourteenth

Amendment. All other issues were resolved below and

have not been appealed to this Court. As Petitioners

noted, “No factual disputes or ancillary issues cloud

the record. There are no jurisdictional or procedural

complications that would prevent this Court from

deciding only the incorporation question.” Pet. at 27.

The Court is rarely presented with a spotless case

to decide a narrow issue. This case is as clean a vehicle

as the Court could ask for.

CONCLUSION

Because the Privileges or Immunities Clause “is

there,” the Court must one day interpret the Clause

based on its original public meaning. This case

presents an opportunity for the court to climb the

20

mountain and declare that a constitutional guarantee

is just that—a constitutional guarantee.

The Court should grant the petition for writ of

certiorari and declare that the right to a civil jury

enumerated in the Seventh Amendment is protected

under the Fourteenth Amendment’s Privileges or

Immunities Clause from state action.

Respectfully submitted,

David C. Tryon

Counsel of Record for Amicus Curiae

Alex M. Certo

THE BUCKEYE INSTITUTE

88 East Broad Street, Suite 1300

Columbus, OH 43215

(614) 224-4422

D.Tryon@BuckeyeInstitute.org

July 10, 2025