「2004 State Constitutions and American Tort Law-Witt damages provisions. At least one wrongful death statute -the statute in Missouri-opted not for a cap on damages but for a mandatory damages igure of $5,000 in death cases. Missouri courts upheld the mandatory damages provision in 1885 against constitutional challenges under state and federal jury trial and due process guarantees. More typically, however mid-century wrongful death legislation authorized the recovery only of pecuniary damages"and often set caps on those pecuniary damages usually at $3, 000 or $5,000. The interplay between these statutory provisions and state constitutional provisions relating to damages recoverable in tort produced a number of relatively minor, though locally significant, cases throughout the end of the nineteenth and beginning ofthe What is most significant about the late nineteenth century rtional law of wrongful death however. is not so much the constitutional decisions of state courts but rather the enactment of new state constitutional provisions expressly addressing torts issues. In particular, democratic dissatisfaction with statutory caps on damages in death cases produced a wave of state constitutional provisions and amendments. State courts, after all, are not the only makers of state constitutional law. The people of a state have the opportunity to amend and redraft their constitutions, and in the late nineteenth century a number of states did just that to abolish and prohibit statutory limits on the damages recoverable in death cases. Pennsylvania led the way here, providing in its constitution of 1874 that the General Assembly could not"limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property. That same year, Arkansas adopted a similar bar on statutory limits on recoveries Connecticut, Illinois, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New York, Oregon, nd Wyoming. By the 1890s, caps in the District of Columbia, Indiana, Kansas, Nev Hampshire, Ohio, Oklahoma, Utah, Virginia, and West Virginia had been lifted to between $7, 000 and s20.000 Tiffany1893,175-76) Marchv. Walker, 48 Tex 372(1977); Richmond&D.R. Co v. Freeman, 11 So.800(Ala. 892), Wright v. Woods'Administrator, 27S.w.979(Ky. 1894); Louisville N.R. Co. V. Lansford 102 F 62(1900); Brickman v Southern Ry, 54S.E553(SC. 1906), Hull v Seaboard Air Line Ry, 57 SE.28(1907) P[2004] State Constitutions and American Tort Law – Witt 9 8 Carroll v. Missouri Pac. Ry, 88 Mo. 239 (1885). 9 States with damages caps under their wrongful death statutes included Colorado, Connecticut, Illinois, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New York, Oregon, Wisconsin, and Wyoming. By the 1890s, caps in the District of Columbia, Indiana, Kansas, New Hampshire, Ohio, Oklahoma, Utah, Virginia, and West Virginia had been lifted to between $7,000 and $20,000 (Tiffany 1893, 175-76). 10March v. Walker, 48 Tex. 372 (1977); Richmond & D.R. Co. v. Freeman, 11 So. 800 (Ala. 1892); Wright v. Woods’ Administrator, 27 S.W. 979 (Ky. 1894); Louisville & N.R. Co. V. Lansford, 102 F. 62 (1900); Brickman v. Southern Ry, 54 S.E. 553 (S.C. 1906); Hull v. Seaboard Air Line Ry, 57 S.E. 28 (1907). 11Pa. Const. of 1874, art. III, § 21. damages provisions. At least one wrongful death statute – the statute in Missouri – opted not for a cap on damages but for a mandatory damages figure of $5,000 in death cases. Missouri courts upheld the mandatory damages provision in 1885 against constitutional challenges under state and federal jury trial and due process guarantees.8 More typically, however, mid-century wrongful death legislation authorized the recovery only of “pecuniary damages” and often set caps on those pecuniary damages, usually at $3,000 or $5,000.9 The interplay between these statutory provisions and state constitutional provisions relating to damages recoverable in tort produced a number of relatively minor, though locally significant, cases throughout the end of the nineteenth and beginning of the twentieth centuries.10 What is most significant about the late nineteenth century constitutional law of wrongful death, however, is not so much the constitutional decisions of state courts but rather the enactment of new state constitutional provisions expressly addressing torts issues. In particular, democratic dissatisfaction with statutory caps on damages in death cases produced a wave of state constitutional provisions and amendments. State courts, after all, are not the only makers of state constitutional law. The people of a state have the opportunity to amend and redraft their constitutions, and in the late nineteenth century a number of states did just that to abolish and prohibit statutory limits on the damages recoverable in death cases. Pennsylvania led the way here, providing in its constitution of 1874 that the General Assembly could not “limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property.”11 That same year, Arkansas adopted a similar bar on statutory limits on recoveries