State Constitutions and american Tort Law: A History John Fabian Witt Over the past twenty years, a number of state statutes purporting to reform the law of torts have been struck down by state courts as unconstitutional under state constitutions Commentators on all sides have treated these decisions as a new phenomenon in American law. In fact, American tort law has developed for over a century in the shadow of state (and occasionally federal) constitutional law. Beginning in the late nineteenth century, state tort reform legislation came under sustained constitutional critique. The legislation at issue included employers'liability laws that expanded liability for ork accidents; spark fire statutes that made railroads liable for fires caused by engine sparks, stock statutes that made railroads liable for cattle killed on the tracks, wrongful death statutes that capped the damages available in death cases, and workmen's compensation statute. Late nineteenth and early hventieth-century state courts developed a small number of time-tested outer bounds on the legislative power to alter the rules of tort suits. In many uncontroversial cases, courts enforced specific and express constitutional rules to strike down statutes such as those that capped wrongful death damages despite a constitutional provision barring such caps. In anotherwell-established line of cases, courts placed outer bounds on legislatures'authority to allocate accident costs to parties with no causal connection to the accident in question. Such legislative allocations of accident costs without causation amounted effectively to a legislative king, redistributing wealth. But on those occasions in which courts reached outside these narrow rationales, they caused Associate Professor of Law, Columbia University. Many thanks to Bill Sage and Cathy Sharkey for comments on earlier drafts, and thanks to Kevin Meier for research assistance. A different version of this paper written for the Pew Charitable Trusts Project on Medical Liability in Pennsylvania isavailableathttp://medliabilitypa.org/research/files/witto304.pdf
* Associate Professor of Law, Columbia University. Many thanks to Bill Sage and Cathy Sharkey for comments on earlier drafts, and thanks to Kevin Meier for research assistance. A different version of this paper written for the Pew Charitable Trusts Project on Medical Liability in Pennsylvania is available at http://medliabilitypa.org/research/files/witt0304.pdf. State Constitutions and American Tort Law: A History John Fabian Witt* Over the past twenty years, a number of state statutes purporting to reform the law of torts have been struck down by state courts as unconstitutional under state constitutions. Commentators on all sides have treated these decisions as a new phenomenon in American law. In fact, American tort law has developed for over a century in the shadow of state (and occasionally federal) constitutional law. Beginning in the late nineteenth century, state tort reform legislation came under sustained constitutional critique. The legislation at issue included employers’ liability laws that expanded liability for work accidents; spark fire statutes that made railroads liable for fires caused by engine sparks; stock statutes that made railroads liable for cattle killed on the tracks; wrongful death statutes that capped the damages available in death cases; and workmen’s compensation statutes. Late nineteenth and early twentieth-century state courts developed a small number of time-tested outer bounds on the legislative power to alter the rules of tort suits. In many uncontroversial cases, courts enforced specific and express constitutional rules to strike down statutes such as those that capped wrongful death damages despite a constitutional provision barring such caps. In another well-established line of cases, courts placed outer bounds on legislatures’ authority to allocate accident costs to parties with no causal connection to the accident in question. Such legislative allocations of accident costs without causation amounted effectively to a legislative taking, redistributing wealth. But on those occasions in which courts reached outside these narrow rationales, they caused
State Constitutions and American Tort Law-Witt political uproar and helped to bring on themselves the great Progressive Era court crisi In sum, 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 oj nteraction between American constitutions at the state and ometimes even federal levels, on one hand, and the law oftorts, 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 centuryproduced political attacks on the legitimacy ofjudicial review that almost stripped state courts of their power to provide binding review of legislation The history of the American constitutional law oftorts, 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 wh would use state constitutional litigation to ward off legislated fort reform should be wary, too. Under the guise of judicial review, state courts have all too often used state constitution to interfere with ex in public policy that over time have come to be widely respected. Judging from the heated rhetoric of the plaintiffs' and defense bars over the past several years, one could be forgiven for thinking that the constitutionalization of American tort law must be a novel development State court decisions striking down tort reform statutes on state constitutional grounds, say defense-side commentators, constitute a new kind of "judicial nullification "of legislatures' legitimate public policy choices (Schwartz lorber 2001, 917). Such decisions arestate constitutionalism'run wild, exhibiting a"fundamental disrespect "for separation of powers principles(Schwartz lorber 2001, 919, Schwartz
2 State Constitutions and American Tort Law – Witt political uproar and helped to bring on themselves the great Progressive Era court crisis. In sum, 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. Judging from the heated rhetoric of the plaintiffs’ and defense bars over the past several years, one could be forgiven for thinking that the constitutionalization of American tort law must be a novel development. State court decisions striking down tort reform statutes on state constitutional grounds, say defense-side commentators, constitute a new kind of “judicial nullification” of legislatures’ legitimate public policy choices (Schwartz & Lorber 2001, 917). Such decisions are “state ‘constitutionalism’ run wild,” exhibiting a “fundamental disrespect” for separation of powers principles (Schwartz & Lorber 2001, 919; Schwartz
「2004 State Constitutions and American Tort Law-Witt 2001, 692). They exhibit the kinds of Lochner Era" theories of the judicial role that were elsewhere"repudiated in 1937, and the result is described fantastically as perhaps the most severe crisis of legitimacy of law and legal institutions that we have faced since Dred Scott"(Priest 2001, 683 Presser 2001, 649) On the plaintiffs'side, the American Trial Lawyers'Association has initiated a constitutional litigation program designed to fend off a new tort reform campaign that threatens to result in the " restriction of constitutional rights"(Peck 2001a, 677). Putative tort reformers, plaintiffs dvocates say, want nothing less than the elevation of the designs of todays transient legislature over the words and intent of those who framed each states organic law', when courts today strike down tort reform gislation, they are thus upholding and even "reviving'"the traditional principles of American constitutional law(Peck 2001b, 26). Indeed, some on the plaintiffs side have even argued that state constitutional decisions striking down tort reform legislation are evidence of the ways in which the capture of state legislatures by defense interests has made courts the guardians of majoritarian will(Abel 1999). Yet what virtually everyone pparently agrees on is that the introduction of state constitutionalism American tort law is a relatively novel phenomenon. Even those who style themselves centrists see state constitutionalism as a newly important development in American tort law. Commenting on the most recent effort to reform the nations tort laws- an effort that began with the first medical malpractice crisis in the mid-1970s- one such observer has called the disputes over whether such reforms are constitutional a"battle, with roots over twenty-five years deep"'(Werber 2001, 1047). Few suspect that such constitutional questions go deep into the history of American law But this widespread impression of novelty constitutionalization of American tort law is wrong. American tort law and e law of American state constitutions have developed hand-in-glove over the past one hundred and twenty five years. Indeed, virtually from the beginnings of the field that we today label"tort law, American lawyers have been arguing about the constitutional limits of legislated tort reform Tort law as a field emerged roughly from the 1850s into the 1880s(Witt 2004). And from the 1870s onward, state constitutions powerfully influenced the development of the law of torts. Moreover, tort law and state
[2004] State Constitutions and American Tort Law – Witt 3 2001, 692). They exhibit the kinds of “Lochner Era” theories of the judicial role that were elsewhere “repudiated in 1937,” and the result is described fantastically as “perhaps the most severe crisis of legitimacy of law and legal institutions that we have faced since Dred Scott” (Priest 2001, 683; Presser 2001, 649). On the plaintiffs’ side, the American Trial Lawyers’ Association has initiated a constitutional litigation program designed to fend off a new tort reform campaign that threatens to result in the “restriction of constitutional rights” (Peck 2001a, 677). Putative tort reformers, plaintiffs’ advocates say, want “nothing less than the elevation of the designs of today’s transient legislature over the words and intent of those who framed each state’s organic law”; when courts today strike down tort reform legislation, they are thus upholding and even “reviving” the traditional principles of American constitutional law (Peck 2001b, 26). Indeed, some on the plaintiffs’ side have even argued that state constitutional decisions striking down tort reform legislation are evidence of the ways in which the capture of state legislatures by defense interests has made courts the guardians of majoritarian will (Abel 1999). Yet what virtually everyone apparently agrees on is that the introduction of state constitutionalism to American tort law is a relatively novel phenomenon. Even those who style themselves centrists see state constitutionalism as a newly important development in American tort law. Commenting on the most recent effort to reform the nation’s tort laws – an effort that began with the first medical malpractice crisis in the mid-1970s – one such observer has called the disputes over whether such reforms are constitutional a “battle, with roots over twenty-five years deep” (Werber 2001, 1047). Few suspect that such constitutional questions go deep into the history of American law. But this widespread impression of novelty in the constitutionalization of American tort law is wrong. American tort law and the law of American state constitutions have developed hand-in-glove over the past one hundred and twenty five years. Indeed, virtually from the beginnings of the field that we today label “tort law,” American lawyers have been arguing about the constitutional limits of legislated tort reform. Tort law as a field emerged roughly from the 1850s into the 1880s (Witt 2004). And from the 1870s onward, state constitutions powerfully influenced the development of the law of torts. Moreover, tort law and state
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 law
4 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
「2004 State Constitutions and American Tort Law-Witt regularly bemoan the paucity of attention paid to their field by the profession more generally(e. g, Williams 1999; Hershkoff 1993). Indeed though the earliest state constitutions predate the widely revered federal constitution by more than twenty years, they remained largely ignored by lawyers and lay-people alike for much of the last century Yet state constitutions are critically important documents in our system of governance. The Supremacy Clause of the U.S. Constitution provides that federal law is supreme even a mere federal regulation trumps state law, even state constitutional law. But the U.s. Constitution. as political scientist Donald Lutz has noted, is an"incomplete text"(Lutz 1988). It enumerates certain areas of authority for the federal government, but outside those areas it takes for granted that power will be left in the hands of the states. In turn, the governments of those states are constituted y state constitutions, which(so long as they create a"republican form of government"and otherwise comply with federal law, including the federal constitution) have wide discretion to establish the systems of governance within the state as the constitution-makers see fit. State constitutions. in Lutz's formulation, complete " the text of American constitutionalism State constitutions not only complete American constitutionalism they sometimes threaten to overwhelm it. For the most remarkable distinctions between the practice of state constitutions in the United States and the practice of the federal constitution are the length and detail of many state constitutions and the regularity with which state constitutions are revised. amended. and even redrafted. State constitutions cover an enormously wide range of topics, from freedom of speech and the death penalty to"ski trails and highway routes, public holidays and motor vehicle revenues"(Tarr 1998, 2). In length, they average three-times the length of the federal constitution. The fifty state constitutions currently in force average about 120 amendments each, for a total of more than 5,900 amendments adopted out of some 9, 500 proposed amendments(Tarr 1998, 24). And yet in a sense the historical constitutions of the states dwarf even this. Americans have held over 230 constitutional conventions. They have S Const. art. 6 US. Const.art.4,§4
[2004] State Constitutions and American Tort Law – Witt 5 1 U.S. Const. art. 6. 2 U.S. Const. art. 4, § 4. regularly bemoan the paucity of attention paid to their field by the profession more generally (e.g., Williams 1999; Hershkoff 1993). Indeed, though the earliest state constitutions predate the widely revered federal constitution by more than twenty years, they remained largely ignored by lawyers and lay-people alike for much of the last century. Yet state constitutions are critically important documents in our system of governance. The Supremacy Clause of the U.S. Constitution provides that federal law is supreme – even a mere federal regulation trumps state law, even state constitutional law.1 But the U.S. Constitution, as political scientist Donald Lutz has noted, is an “incomplete text” (Lutz 1988). It enumerates certain areas of authority for the federal government, but outside those areas it takes for granted that power will be left in the hands of the states. In turn, the governments of those states are constituted by state constitutions, which (so long as they create a “republican form of government”2 and otherwise comply with federal law, including the federal constitution) have wide discretion to establish the systems of governance within the state as the constitution-makers see fit. State constitutions, in Lutz’s formulation, “complete” the text of American constitutionalism. State constitutions not only complete American constitutionalism, they sometimes threaten to overwhelm it. For the most remarkable distinctions between the practice of state constitutions in the United States and the practice of the federal constitution are the length and detail of many state constitutions and the regularity with which state constitutions are revised, amended, and even redrafted. State constitutions cover an enormously wide range of topics, from freedom of speech and the death penalty to “ski trails and highway routes, public holidays and motor vehicle revenues” (Tarr 1998, 2). In length, they average three-times the length of the federal constitution. The fifty state constitutions currently in force average about 120 amendments each, for a total of more than 5,900 amendments adopted out of some 9,500 proposed amendments (Tarr 1998, 24). And yet in a sense the historical constitutions of the states dwarf even this. Americans have held over 230 constitutional conventions. They have