The United States Supreme Court and U.S. Court of Appeals for the Fifth Circuit are conservative institutions, committed to principles of originalism in constitutional cases. In theory, focusing on the framers’ original intent about the Constitution leads to good decisions based on objective evidence—the framers intended something, or they didn’t. Two recent cases draw that assumption into question, however, and suggest that today’s “originalists” may have taken that principle a step too far.

On May 18, the Fifth Circuit issued a blockbuster constitutional opinion in Jarkesy v. SEC. A 2-1 panel opinion held that the Constitution’s Seventh Amendment, which preserves the right to jury trial “[i]n Suits at common law,” applies to an enforcement action by the Securities and Exchange Commission, so long as the action seeks a monetary penalty.

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