「2004 State Constitutions and American Tort Law-Witt 11 "left to the jury. 25 This is not to say that there were no further constitutional challenges in the courts to the wrongful death statutes around the turn of the twentieth century. Defendants and plaintiffs alike lodged a variety of miscellaneous challenges against, forexample, state statutes that authorized wrongful death actions only by resident administrators of the decedents estate, or distinguished between injuries to citizens of the state and non- citizens of the state state statutes that were said to impinge on Congress's authority to regulate interstate commerce", and state statutes that impermissibly failed to express their purpose in their title. When Missouri s legislature eliminated the mandatory damages provision of its early wrongful death scheme and conferred on juries the discretion to award damages ranging from $2,000 to $10,000 in death cases, defendants legislatures responsibility to fix penalties. Constitutional challenges nineteenth-century tort reform have even continued into our own time Many state wrongful death statutes, for example, provided greater benefits to widows than to widowers until 1980, when the United States Supreme Court ruled that such gendered asymmetries discriminated unconstitutionally on the basis of sex 3I Okla. Const of 1907, art. 23,$6 2 Maysville Street RR& Transfer Co. V. Marvin, 59 F. 91(6th Cir. 1893)(upl Kentucky statute authorizing wrongful death actions only by resident administrators against challenge der the Privileges and Immunities Clause of the U.S. Constitution, art. IV,$2) death provision distinguishing between state resident decedents and non-state-resident decedents on the ground that the provision does not distinguish between citizen and non-citizen parties), affirming on other grounds Baltimore Ohio RR. v Chambers, 76N E 91(Ohio 1905)(holding that the Ohio ful death provision did not violate the Privileges and Immunities Clause of the U.S. Constitution Iv,$2 on the ground that the constitutional provision "applies only to fundamental and universal rights, not to special privileges"); Schell v. Youngstown Iron Sheet& Tube Co., 16 Ohio C D. 209, 26 hio CC 209, 4 Ohio CC (N.S. )172(Ohio Cir. 1904)(interpreting the Ohio wrongful death provisio to avoid conflict with the Privileges and Immunities Clause of the U.S. Constitution, art. IV, $2). Southen Ry v King, 217 U.S. 524(1910), affirming Southern Ry v King, 160 F 332 2See Croft v Southern Cotton Oil Co., 65S. E 216(1909) Young v St Louis, IM,&S Ry, 127S. W. 19(Mo 1910) See Wengler v Druggists Mutual Ins Co., 446US 142(1980)(striking down dispart in workers' compensation stature that made it more difficult for widowers to claim benefits than for[2004] State Constitutions and American Tort Law – Witt 11 25Okla. Const. of 1907, art. 23, § 6. 26Maysville Street RR & Transfer Co. V. Marvin, 59 F. 91 (6th Cir. 1893) (upholding a Kentucky statute authorizing wrongful death actions only by resident administrators against challenge under the Privileges and Immunities Clause of the U.S. Constitution, art. IV, § 2). 27Baltimore & Ohio RR v. Chambers, 207 U.S. 142 (1907) (upholding an Ohio wrongful death provision distinguishing between state resident decedents and non-state-resident decedents on the ground that the provision does not distinguish between citizen and non-citizen parties), affirming on other grounds Baltimore & Ohio RR. v. Chambers, 76 N.E. 91 (Ohio 1905) (holding that the Ohio wrongful death provision did not violate the Privileges and Immunities Clause of the U.S. Constitution, art. IV, § 2 on the ground that the constitutional provision “applies only to fundamental and universal rights, not to special privileges”); Schell v. Youngstown Iron Sheet & Tube Co., 16 Ohio C.D. 209, 26 Ohio C.C. 209, 4 Ohio C.C.(N.S.) 172 (Ohio Cir. 1904) (interpreting the Ohio wrongful death provision so as to avoid conflict with the Privileges and Immunities Clause of the U.S. Constitution, art. IV, § 2). 28Southern Ry. v. King, 217 U.S. 524 (1910), affirming Southern Ry. v. King, 160 F. 332 (5th Cir. 1908). 29See Croft v. Southern Cotton Oil Co., 65 S.E. 216 (1909). 30Young v. St. Louis, I.M., & S. Ry, 127 S.W. 19 (Mo. 1910). 31See Wengler v. Druggists’ Mutual Ins. Co., 446 U.S. 142 (1980) (striking down disparity in workers’ compensation stature that made it more difficult for widowers to claim benefits than for widows). “left to the jury.”25 This is not to say that there were no further constitutional challenges in the courts to the wrongful death statutes around the turn of the twentieth century. Defendants and plaintiffs alike lodged a variety of miscellaneous challenges against, for example, state statutes that authorized wrongful death actions only by resident administrators of the decedent’s estate,26 or distinguished between injuries to citizens of the state and non￾citizens of the state27; state statutes that were said to impinge on Congress’s authority to regulate interstate commerce28; and state statutes that impermissibly failed to express their purpose in their title.29 When Missouri’s legislature eliminated the mandatory damages provision of its early wrongful death scheme and conferred on juries the discretion to award damages ranging from $2,000 to $10,000 in death cases, defendants unsuccessfully challenged the legislation as an abdication of the legislature’s responsibility to fix penalties.30 Constitutional challenges to nineteenth-century tort reform have even continued into our own time. Many state wrongful death statutes, for example, provided greater benefits to widows than to widowers until 1980, when the United States Supreme Court ruled that such gendered asymmetries discriminated unconstitutionally on the basis of sex.31