To the acolytes of the "Living Constitution," our founding charter is not a binding legal text but warm clay, waiting to be molded by the enlightened hands of the modern judiciary.
They treat constitutional guarantees as mere suggestions, easily discarded when they conflict with administrative convenience.
Today, no idol is more celebrated in the marbled halls of our courts than the bureaucratic false god of "judicial efficiency."
Upon this altar, the modern judiciary is eagerly, and unconstitutionally, sacrificing the American civil jury trial.
Let us look at the text, where all legitimate legal inquiry must begin.
The Seventh Amendment—and our parallel state guarantees—states plainly: "In Suits at common law... the right of trial by jury shall be preserved."
It does not append a footnote reading, unless the judge finds a trial too cumbersome.
The Framers understood what modern judicial patricians, insulated in their chambers, have forgotten: the jury is a structural check on elite power.
Alexis de Tocqueville captured this brilliantly in Democracy in America, observing that the jury is fundamentally a political institution. It is a free school of civic virtue that forces citizens to take responsibility for justice.
It prevents the tyranny of the magistrate by ensuring the final word on the facts rests with the people.
When the judiciary strips the jury of its power in the name of "efficiency," they are not simply managing a docket; they are engaged in the wholesale theft of civic power.
The weapon of choice for this silent coup is the mutant, malignant growth of summary judgment.
Originally a narrow mechanism to dispose of cases truly devoid of factual dispute, Rule 56 has been weaponized into a scythe.
Today, judges routinely weigh complex evidence, assess human credibility from a cold paper record, and dismiss meritorious claims before a jury hears a single word of live testimony.
What is this, if not a judge declaring they can divine the truth better than twelve everyday citizens? It is pure interpretative jiggery-pokery. It is sheer applesauce—an anti-democratic power grab masquerading as docket management.
We see the bitter, contradictory fruit of this overreach right here in Wyoming. Consider the recent defamation case involving the Freedom Caucus.
While I favor much of the Caucus’s commitment to limited government, a judge’s role is not to protect a political movement from jury scrutiny.
District Judge Richard Lavery looked at the facts and correctly ruled that fabricated campaign mailers demanded a trial.
But when Lavery retired, District Judge James Kaste inherited the case, looked at the exact same facts, and granted summary judgment, tossing the case out entirely.
If two learned judges can examine identical facts and reach fundamentally opposing legal conclusions, that is the textbook definition of a genuine dispute of material fact!
The constitutional tiebreaker is the jury, not whichever judge has the faster pen.
Equally egregious is the federal court’s conduct under U.S. District Judge Scott Skavdahl, where a school district was effectively permitted to lie to parents about their own children.
To dismiss such a case on the pleadings or at summary judgment is a judicial travesty. Declaring that a government entity's pattern of deception against parents fails to meet a judicial threshold of "harm" is a moral lobotomy on the Seventh Amendment.
These are cases that cry out for the conscience of the community.
To grasp the magnitude of this constitutional loss, one must look to Professor Robert P. Burns’s The Death of the American Trial.
Burns rightly identifies the trial as a profound democratic achievement—the crucible where the sterile dictates of law confront the messy reality of human life.
The trial requires the state and the powerful to justify themselves in the public square, subject to the unforgiving crucible of cross-examination before ordinary citizens.
By killing the trial through summary judgment, judges are replacing a vibrant democratic institution with elite bureaucratic administration, trading the majestic, public reckoning of the courtroom for the quiet, unaccountable disposition of a summary order.
The grand justification for this overreach is always the tired ghost story of a "litigation crisis."
But rigorous empirical scholarship has repeatedly proven this crisis is a phantom—a fabricated narrative engineered by corporate interests to delegitimize plaintiffs and padlock the courthouse doors.
We are not suffering from an overabundance of frivolous lawsuits; we are suffering from a devastating lack of accountability.
The engine of civil justice has always been the plaintiff’s attorney, the lawyer willing to risk their own livelihood—often via a standard contingency fee—to ensure the destitute citizen can stand toe-to-toe with a corporate leviathan.
But that equalizing mechanism is rendered hollow if the courtroom door is preemptively barred by a judge who finds the fierce independence of a jury inconvenient.
Having watched this system evolve over nearly half a century in the trenches of civil litigation, the conclusion is inescapable: the vanishing trial is not a natural evolution of the common law. It is a profound abdication of judicial duty and a blatant betrayal of the text.
It is time to discard the hubris of the Living Constitution and return to the text we inherited. The courtroom does not belong to the judge, the administrative state, or corporate interests terrified of public scrutiny.
As Tocqueville knew, it belongs to the citizens. The Seventh Amendment is not a suggestion; it is a promise of power. It is time we demand, unequivocally, that they get their day in court.
Fred Harrison is an attorney in Cheyenne and served in the Wyoming Legislature from 1982 - 1992. He can be reached at: Fred.Harrison@fjhlawoffice.com
