The Seventh and Eighth Amendments to the US Constitution

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Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. 

The right to have a jury for a civil lawsuit very nearly kept the Constitution from being ratified. It is one of the fundamental rights that our Founders insisted on preserving by writing the Bill of Rights, a series of ten amendments to the United States Constitution that spelled out plainly the rights given to the government and those preserved for the people.

The Anti-Federalists felt that the Constitution itself left too much open to interpretation on the assumption that the states would enumerate civil rights in their own constitutions. 

In order to ratify the Constitution, which required approval of nine of the thirteen original states, the Bill of Rights was added. Today we explore the Seventh and Eighth Amendments to see how our Founders dealt with civil lawsuits and punishments for crime.

English common law had the number of jurors at 12 men who must agree unanimously on the outcome of the trial. Later cases determined that six jurors would suffice. 

 Admiralty and Maritime cases (those involving overseas shipment and navigable waterways) are excluded from the right to a jury trial because of the precedent set in English law. This is also true for cases against the government and some patent claims.

The states are not required to provide juries in civil cases, unless trying a case related to a federal law, but most states do provide juries in civil cases.

With the agreement of both parties, the right to a jury may be waived in writing and the case decided by a judge. When the suit covers a moral obligation rather than a legal one the judge may rule that a jury is not required. A moral obligation is one that comes from a code of ethics or a religious viewpoint. A legal obligation is written into the law.

The Seventh Amendment further provides that the findings of fact by the jury will not be overturned by the court in federal cases, state cases involving federal law, or federal review of a state case. This is to avoid giving the Supreme Court the final say “both to law and to fact”, as feared by the Anti-Federalists. In the case of errors made during the trial, a new jury would re-examine the facts, not a judge.

Believe it or not, the twenty dollar minimum has not been altered since the original adoption of the Bill of Rights in 1792.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 

Excessive Bail

Making bail means giving the government the amount of money specified by a judge to allow you to leave jail until your court case comes up. The money will be refunded once you have stood trial.

This is designed to keep you from leaving in order to avoid your trial. Being out of jail until the trial allows you the freedom to work with your lawyer to prepare the case, to set your affairs in order in case of conviction, and to earn a living while you await your day in court.

Preventive detention is the term for holding someone without bail while awaiting trial for an offense. The reasoning for doing so is because the nature of the the crime suggests that the accused will present a danger to the community if released.

In the absence of a threat to the community, the judge has to set bail with an eye toward preventing the accused from absconding without making it such a burden that the accused cannot post bail.

Professional bail bondsmen exist to loan the money for bail to those who don’t have access to that much cash, and the incentive to return to court is the forfeiture of the bail if you don’t come back.

Borrowing money from someone who deals with criminals on a daily basis provides its own incentive: you don’t want that guy to come looking for you any more than you want to be hunted by the police.

If the burden of bail is higher than you can bear, you can make a motion for reduction. If that fails you can appeal to the Court of Appeals and then to the Supreme Court Justice assigned to your circuit.

Excessive Fines

The Eighth Amendment prohibits excessive fines: money owed the government for an offense. This does not apply to payments awarded in a civil lawsuit.

Civil forfeiture can be limited by the Eighth Amendment at the federal, state, and local level. Civil forfeiture is the seizure of property suspected to have been used in a crime, such as a large pile of money found during a drug raid.

Critics cite the Fourth Amendment and Fifth Amendment as prohibiting civil forfeiture based on due process and the limits on search and seizure. Click the links for my posts on those amendments.

Fines are viewed by the court as punishment for a misdeed and should be in accordance with the scope of the violation; a minor offense should not cause large fines that cripple the person charged. This is called proportionality.

Cruel and Unusual Punishment

Courts must take into account the nature of the offense, the scope of the damage caused by the offense, and the character of the offender.

Despotic governments around the world are known for inflicting pain on their citizens: in 1982 Iraqui President Saddam Hussein imprisoned over 1500 people in a single town and tortured many, including children, after a group of militants shot at his motorcade.

Joseph Stalin, premier of the Soviet Union, instituted the “Great Purge,” imprisoning over a million of his own people and executing 700,000 in the 1930s.

Colonial America was no stranger to cruel and unusual punishments. Angry mobs during the Revolutionary War often dispensed vigilante justice by tarring and feathering: stripping the victim, covering him with pine tar, and rolling him in feathers. Removing the sticky feathers required hours of scraping the bloody, irritated skin.

Official punishments in 18th Century England, from whom the United States separated during the Revolutionary War, ranged from indignities such as pelting the criminal with rotten eggs to branding with a hot iron to hanging.

For high treason the complicated punishment of being drawn and quartered was particularly horrifying. The criminal was hanged until almost dead, disemboweled, and then attached to four horses going in four different directions.

The founders of the Constitution had faced the prospect of these vile punishments when they fought for their freedom, and they knew the fear of being tortured and humiliated by a despotic government.

Even so, they debated over whether such details as cutting off an offender’s ear might not be acceptable under the new Constitution.

The Death Penalty

The Supreme Court has examined the death penalty and found that it meets the Constitutional Standard as long as pain is not inflicted for its own sake.

Torture and lingering death are cruel, but death itself is not cruel in the context of a capital crime. Lethal injection and the electric chair have been upheld in court.

In the case of an electrocution that did not work the first time, the Supreme Court ruled that the state could have a do-over without imposing wanton cruelty on the convict.

This has been a contentious issue for the court and is one of the reasons why it really matters whom the President appoints to the Supreme Court. Nine individuals decide what the Constitution means and often are sharply divided on key points.

Proportionality figures in here. The death penalty is reserved for murder because only taking a life is severe enough to warrant the forfeiture of one’s own life.

A mandatory death sentence has not been upheld as Constitutional. A lesser sentence must be an option for the sentencing judge who can consider mitigating factors such as the character and prior record of the convict.

In the case of reduced mental capacity, the death penalty has not been upheld. A crime committed when the perpetrator was under the age of 16 has also been ruled ineligible for the death penalty.


Prisons may be restrictive and even harsh without invoking the Constitutional clause. Excessive force in a prison may violate the Eighth Amendment if that force is not applied in a good faith effort to maintain or restore discipline. Malicious or sadistic use of force does violate the Amendment.

Standards evolve with society, and each generation has a slightly different interpretation of what constitutes cruel and unusual punishment. As new judges are appointed, the character of the court changes, and the interpretation of the law acquires a slightly different flavor.

How the Amendments Apply to You

If you are wondering why you should pay attention to politics, it is because the President has the power to appoint the Supreme Court Justices who interpret the laws that govern your behavior. The Congress then has input in the form of advice and consent.

Read the full text of the Bill of Rights on my website. Keep reading my blog to explore your Constitutional rights.

Pay attention, because elections have consequences.

Before I wrote this article I beefed up my knowledge of the Seventh and Eighth Amendments at the Cornell Law School Website.

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Carla Pittman

Carla is a Speech Pathologist working in Home Health by day and a blogger by night. She married Chris in 2008 and is working to help him unite his love of guns with his passion for teaching others to carry safely. Her other impetus for blogging is to make Americans aware of their Constitutional rights, which are at risk in the current political environment.

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