State Constitutions: What’s the Point?

We the People” by Steven Nichols is licensed under CC BY-NC-SA 2.0.

Katie Basalla, Associate Member, University of Cincinnati Law Review

I. Introduction 

The United States Constitution[1] is the “Supreme Law of the Land” and may not be contradicted by state law.[2] Each state has its own constitution with its own set of rights, separate and apart from the Constitution. While states cannot infringe rights protected the Constitution, state courts are the ultimate interpreters of their own constitutions. When a plaintiff asserts a violation of his constitutional rights, the rights at issue could be contained in a state’s constitution, the Constitution, or both. Even with the supremacy of the Constitution, an individual state’s interpretation of its constitution may be more favorable than an equivalent right’s interpretation under federal law. Despite the fact that state constitutions may protect broader rights, the Constitution remains at the forefront of many discussions surrounding constitutional rights. 

In 1977, United States Supreme Court Justice William Brennan authored a law review article that focused on the interplay of state and constitutional law.[3] He focused on the power of state courts to construe their own state constitutional provisions more broadly than their federal counterparts, even when the provisions are phrased identically.[4] The article stressed that “state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution” and must go beyond the reach of the Constitution.[5] States were at risk of the power of federal law inhibiting the independent power of state law.[6] While his article could have been a turning point in how lawyers present constitutional issues, many states still do not treat their constitutions as separate, but equal sources of rights.[7]  

Same sex marriage is an example of state constitutional law preceding federal constitutional law. In 2015, the Supreme Court of the United States held that the right to marry was protected by the Constitution, making same-sex marriage a legal right throughout the country.[8] But the story did not start there. In 1972, the Supreme Court shut the door on hearing cases where states refused to recognize same-sex marriages for lack of a “substantial federal question.”[9] This did not stop states from legalizing same-sex marriage, however; it merely forced them to do so through their state constitutions.  By the time the Supreme Court heard a same-sex marriage case, 37 states had already established that their constitutions protected the right of same-sex couples to marry.[10]

States began to interpret the right to same-sex marriage from their own constitutions because the Supreme Court of the United States determined the Constitution did not govern the issue. However, state courts did not have to wait for this. They had the power to decide the issue of same-sex marriage rights under their own constitutions before the Supreme Court ever addressed the issue under the Constitution.[11]

On the other hand, in areas where the Supreme Court of the United States has heard a matter and made a ruling, states typically adhere to that ruling, despite their own constitutional language and history being distinct.[12] In Tinker v. Des Moines, the Supreme Court interpreted freedom of speech as applied to school children.[13] As Supreme Court precedent, this case has been widely cited when interpreting the First Amendment to the United States Constitution.[14] While all courts are bound by the Supreme Court’s interpretation of the First Amendment, state courts have also relied on Tinker when interpreting speech protections in their state constitutions.[15]

State courts have the authority to decide cases independently under their own constitutions.[16] Where state and federal constitutional guarantees overlap, state courts have the power to align their interpretations of state constitutional guarantees with the state’s judicial and political history within the bounds of the Constitution.[17] They do not need to rely on how the Supreme Court interpreted the federal counterpart. However, they often do.[18] This post will argue that there are two reasons state courts follow federal constitutional precedent when they could differ: (1) the failure of attorneys to bring claims under both documents and (2) when they do, judges evaluate both claims under federal law. 

II. Discussion 

Lawyers can and should be making both federal and state constitutional claims on behalf of their clients. The Supremacy Clause establishes that rights under the Constitution are the same in every state, but those rights are not coextensive with state constitutional rights. A party’s claim can fail under the Constitution but prevail under a state constitution. Many states have failed to heed Justice Brennan’s call to treat their foundational documents as separate but equally powerful sources of rights. The system of federalism in the United States exists to allow for the variations on a common set of values.[19] When state courts concede interpretive supremacy to federal courts, they elect not to engage in the project of American federalism.

States establishing rights beyond the protections provided by the Constitution may also influence federal rights. While state courts’ interpretations of constitutional law do not bind the Supreme Court, the timeline of the same-sex marriage narrative illustrates how a strong foundation at the state level can bolster the argument for a federal right. When the Court rendered its decision in favor of the existence of a right to marriage regardless of sex in Obergefell, it noted the changes in public attitudes towards same-sex marriage, especially focusing on the trend in state courts at the time.[20]

States’ constitutional interpretations played a role in the Supreme Court case deciding same-sex marriage. This happened because states interpreted the right from their own constitutions when the Supreme Court refused to hear the issue in 1972. States do not have to wait for federal courts to shut the door on rights before interpreting the rights themselves. State courts can and should consider state constitutional claims under a separate body of state law insofar as that body of law is consistent with the Constitution.   

III. Conclusion 

State and federal constitutional law are separate bodies with separate authority to decide cases. Advocates must consider whether their clients are best served by appealing to both when they have claims cognizable under both. Lawyers should be making both of these claims when presented with the opportunity.[21] State and federal constitutional law are not entirely independent, but the Constitution should be a floor on which states can build additional rights. 


[1] For purposes of this post, “Constitution” always means United States Constitution. 

[2] U.S. Const. art. VI, cl. 2. 

[3] William Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). 

[4] Id. at 5. 

[5] Id. at 2. 

[6] Id.

[7] See Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (The Supreme Court of Ohio interpreted the Ohio Establishment Clause by adopting the three-part Lemon test created by the Supreme Court of the United States).

[8] Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 

[9] Baker v. Nelson, 409 U.S. 810 (1972). 

[10] Julia Zorthian, These are the States Where SCOTUS Just Legalized Same-Sex Marriage, Time, (June 26, 2015), https://time.com/3937662/gay-marriage-supreme-court-states-legal/. “While 37 states had already fully legalized same-sex marriage, the Obergefell v. Hodges decision means the remaining 13 states will have to hand out marriage licenses to LGBT couples.” Id. 

[11] Michigan v. Long, 463 U.S. 1032 (1983). 

[12] Joseph Blocher, Reverse Incorporation of State Constitutional Law, 84 S. Cal. L. Rev. 323, 325 (2011). 

[13] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). 

[14] See, Defabio v. E. Hampton Union Free Sch. Dist., 623 F.3d 71 (2d Cir. 2010). 

[15] See, Solmitz v. Me. Sch. Admin. Dist., 495 A.2d 812 (Me. 1985) (evaluating a violation of freedom of speech under the first amendment of the United States Constitution and under article I, § 4 of the Maine Constitution, both under the Tinker standard).

[16] Michigan v. Long, 463 U.S. 1032 (1983). 

[17]See Ohio v. Robinette, 519 U.S. 33, 40 (1996) (Ginsburg, J., concurring) (focusing on the “unique vantage point” the state had when interpreting the Fourth Amendment).

[18] See Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (The Supreme Court of Ohio interpreted the Ohio Establishment Clause by adopting the three-part Lemon test created by the Supreme Court of the United States).

[19] Alison Grey Anderson, The Meaning of Federalism: Interpreting the Securities Act of 1934, 70 Va. L. Rev. 813, 854 (1984).

[20] Obergefell v. Hodges, 135 S. Ct. 2584, 2597 (2015). 

[21] Attorneys should evaluate claims under both and present their client the option; other considerations, such as cost, time, and likelihood of success can and do enter the equation. 

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