State Constitutions and American Tort Law-Witt constitutions have had reciprocal effects on one another, for even as constitutions shaped the law of torts, legislation in the torts area helped to construct basic principles in state constitutional law. Indeed, in the first ecade and a half of the twentieth century, state constitutional cases over reforms in the law of accidents generated political controversies that contemporaries saw rather more realistically than some defendant-side lawyers today -as the lowest moment in the history of American courts since the dred scott case The current generation of state constitutional decisions reviewing tort reform legislation are merely the latest incarnation of what has beer more than a hundred years of interaction between American constitutions at the state and sometimes even federal levels on one hand and the law of torts, on the other. The lesson of this interaction, however, is not simply to legitimate the current generation of state court decisions by providing them with historical precedents. Constitutional interventions into the making of American tort law have led American state courts into some of their most ill-fated decisions. In particular, constitutional interventions to block the enactment of workmens compensation statutes at the opening of the twentieth century produced political attacks on the legitimacy of judicial review that almost stripped state courts of their power to provide binding review of legislation. The history of the American constitutional law of torts, in short, is a cautionary tale for all involved. Supporters of modern tort reform efforts have little occasion for seeing unprecedented threats to basic constitutional principles like separation of powers and popular sovereignty. But those who would use state constitutional litigation to ward off legislated tort reform should be wary, too. Under the guise of judicial review, state courts have all too often used state constitutional provisions to interfere with experiments in public policy that over time have come to be widely respected An introduction to state Constitutions For much of the twentieth century, state constitutions were a backwater in American law. As one widely commented-on survey found in the late 1980s only one in two Americans even know their state has a constitution(Kincaid 1988). Experts in matters of state constitutional law4 State Constitutions and American Tort Law – Witt constitutions have had reciprocal effects on one another, for even as constitutions shaped the law of torts, legislation in the torts area helped to construct basic principles in state constitutional law. Indeed, in the first decade and a half of the twentieth century, state constitutional cases over reforms in the law of accidents generated political controversies that contemporaries saw – rather more realistically than some defendant-side lawyers today – as the lowest moment in the history of American courts since the Dred Scott case. The current generation of state constitutional decisions reviewing tort reform legislation are merely the latest incarnation of what has been more than a hundred years of interaction between American constitutions at the state and sometimes even federal levels, on one hand, and the law of torts, on the other. The lesson of this interaction, however, is not simply to legitimate the current generation of state court decisions by providing them with historical precedents. Constitutional interventions into the making of American tort law have led American state courts into some of their most ill-fated decisions. In particular, constitutional interventions to block the enactment of workmen’s compensation statutes at the opening of the twentieth century produced political attacks on the legitimacy of judicial review that almost stripped state courts of their power to provide binding review of legislation. The history of the American constitutional law of torts, in short, is a cautionary tale for all involved. Supporters of modern tort reform efforts have little occasion for seeing unprecedented threats to basic constitutional principles like separation of powers and popular sovereignty. But those who would use state constitutional litigation to ward off legislated tort reform should be wary, too. Under the guise of judicial review, state courts have all too often used state constitutional provisions to interfere with experiments in public policy that over time have come to be widely respected. I. An Introduction to State Constitutions For much of the twentieth century, state constitutions were a backwater in American law. As one widely commented-on survey found, in the late 1980s only one in two Americans even know their state has a constitution (Kincaid 1988). Experts in matters of state constitutional law