The State Constitution Strikes Back
Introduction
When Americans think of constitutional rights, a single document comes to mind: the United States Constitution. But each state has a constitution of its own.
State constitutions were written in a different time and place and often contain distinct language, giving state courts the power to interpret their constitutions independently of the national supreme court.¹
Yet for much of modern American history, state courts have deferred to federal constitutional interpretation and followed the same principles as the U.S. Supreme Court. This practice, called lockstep interpretation, means that if a state’s constitution contains a provision similar to one in the federal Constitution, that state court will apply the same interpretation as the United States Supreme Court rather than evaluating the text of its own constitution.²
That approach has been practical and, in some ways, intuitive, but it is undergoing a reassessment. One particularly prominent debate asks whether a state constitution should be interpreted according to what the U.S. Supreme Court decrees the federal Constitution to mean or whether a state court should be free to interpret its own document to provide greater rights to its citizens.
Two Constitutions, Two Governments
The American government is federal. The federal Constitution creates a national government, and the state constitutions create governments at the state level, each possessing its own powers under the federal Constitution.
That division is significant because the federal Constitution generally creates a floor; states are not allowed to have less protection than the federal Constitution provides, but may go above and beyond it. The United States Supreme Court explained this principle in PruneYard Shopping Center v. Robins , when it stated that although the protections provided by the federal Constitution “are applicable to the states,” states “may impose greater restrictions on their own governments than does the national Constitution.”³
In other words, if there is a provision in the federal Constitution protecting one class of speech, a state constitution might be able to protect a broader category of speech than the federal Constitution does. The federal Constitution sets a floor; state constitutions set a ceiling, and the two are not necessarily the same.
That means that, for a given right, a person’s rights may depend in part on where she lives.
The Rise of Lockstep Interpretation
At the same time, however, state courts have often looked to the federal decisions for guidance. Lockstep interpretation has practical advantages. Federal constitutional law is highly developed, and state courts may simply apply the tests and standards the
U.S. Supreme Court has used when deciding a similar question. Uniformity also has value, if the language of the state and federal constitutions are nearly identical, it may seem unwieldy to apply two different interpretations. But advocates for independent state constitutional interpretation argue that this approach ignores the realities of state constitutions.
A state constitution is not a copy of the federal document. As Harvard Law Review ‘s 2026 Developments in the Law article explains, “each state constitution was drafted for a different sovereign and at a different time,” which means that “automatically importing” a federal interpretation “may be inconsistent with the text and history of a particular state constitution.”⁴
The Pennsylvania Rebellion
Perhaps the most prominent recent example of a state court rejecting lockstep interpretation comes from Pennsylvania.
In Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services , the Pennsylvania Supreme Court was asked to consider whether restrictions on public funding for abortion services were consistent with the equality provisions of the Pennsylvania Constitution.⁵
The case arrived in the middle of a national showdown over abortion rights. In Dobbs v. Jackson Women’s Health Organization , the U.S. Supreme Court had recently held that the federal Constitution did not confer a right to abortion.
Dobbs could have ended the discussion in Pennsylvania. Instead, the Pennsylvania Supreme Court declined to follow the United States Supreme Court’s lead. It stated that in interpreting the Pennsylvania Constitution it “must look to the text, history, and traditions of our own Constitution.”⁶
The decision underscored the basic point that, while federal constitutional law creates a floor, state constitutions often go above and beyond. While the United States Supreme Court decides what the federal Constitution says, a state court is free to interpret its own state constitution to create greater rights for its citizens.
Hawaii Follows
Pennsylvania is far from the only state to reject lockstep interpretation. In 2025, the Supreme Court of Hawaii considered a challenge to a property deed that contained a restriction on its use, limiting the property to “Church purposes only.”⁷
Rather than applying the federal Establishment Clause directly, the court examined the history of the Hawaii Constitution and the intentions of its drafters.⁸
The court reasoned that the drafting of the Hawaii Constitution and the United States Constitution took place in “fundamentally different circumstances . . . during profoundly different periods of history.”⁹
As a result, it held that it “must determine what the Hawaii Constitution means, and that it is not for us to follow the decisions of the United States Supreme Court concerning the meaning of the federal constitution.”¹⁰
Like the Pennsylvania case, this decision affirms that state courts are capable of engaging in meaningful constitutional analysis, rather than simply replicating the work of the United States Supreme Court.
Ohio Draws Its Own Line
Ohio has recently joined the list of states that have distanced themselves from lockstep interpretation.
The Ohio Supreme Court criticized its own past practice of following federal precedent without sufficient regard for the text, purpose, and history of the Ohio Constitution. It then proceeded to declare that “Ohio judges are not required to walk in lockstep with the United States Supreme Court.”¹¹
This was not an isolated opinion, it represented a broad theory of state judicial supremacy. A state supreme court is not a federal appeals court; On questions of state constitutional law, it is the ultimate authority.
Why More Protection Can Be Constitutional
Some people find the very idea of independent state constitutional interpretation to be a confusing one. Isn’t the entire point of having a federal Constitution that all Americans are subject to the same laws, including the Bill of Rights?
Perhaps, but that view ignores that the Constitution itself is structured to allow for variation. The Constitution creates a national government, but stops short of preventing states from passing laws that are more protective of individual rights
Indeed, Justice Brennan wrote in his famous 1977 essay State Constitutions and the Protection of Individual Rights that state constitutions are “potential sources of greater rights protection” at exactly the time when such protection was needed, during the rise of the modern “New Judicial Federalism.”¹²
This view is similar to the way in which states are sometimes described as “laboratories of democracy.” If a state court interprets its constitution to create a broader right than the United States Supreme Court has recognized, that is not a problem. Another state may follow the same approach, and soon a pattern will emerge in which courts, legislators, and voters can evaluate different approaches to a given issue.
Meanwhile, federal constitutional law, like state constitutional law, can develop incrementally and respond to changing needs.
The Problem of Inconsistency
Independent interpretation of state constitutions has clear advantages, but it also has disadvantages. If state constitutions are interpreted independently, a given provision may have a different meaning in different states. Citizens may move from a state with generous protections to a state with fewer protections. Criminal defendants in one state may have stronger search-and-seizure rights than defendants in another state. Privacy rights may expand in one state while contracting in another, and so on.
Constitutional law is complicated enough as it is, and it does not need to become more complicated. Americans are already accustomed to the idea that the law varies from state to state in subtle and occasionally inconvenient ways. Different states have different tax codes, different criminal laws, different election laws, different education laws, and different civil rights laws. The question is whether rights guaranteed by state constitutions should be an exception to this pattern.
Proponents of lockstep interpretation argue that it should not be possible for someone to wake up in a different state and discover that her constitutional rights have changed in a major way. Proponents of state constitutional independence argue that state constitutions were designed to allow exactly that to happen. Neither argument is without merit.
The Risk of Federalism in Reverse
There is a final reason that lockstep interpretation is concerning: the effect it has on federal courts. If state courts simply adopt the interpretations of the U.S. Supreme Court when deciding similar issues under state constitutions, the United States Supreme Court’s opinions will have the effect of binding state courts as well.
This is problematic because the U.S. Supreme Court is the only court that actually has the power to bind state courts. Under lockstep interpretation, a single opinion from the U.S. Supreme Court could have the effect of preventing state courts from interpreting their own constitutions.
The Next Generation of Constitutional Law
Perhaps we are witnessing the birth of a new era in American law. The Harvard Law Review’s 2026 Developments in the Law article discusses the recent anti-lockstepping decisions in Pennsylvania, Hawaii, and Ohio, while also noting that “some courts continue to rely heavily on federal precedent.”¹³
We should be careful not to overstate this development, but it is accurate to say that when the United States Supreme Court changes its approach to a given area of constitutional law, state courts now have an alternative option, so long as they are willing to reevaluate the text, history, and structure of their own constitutions.
And this trend only has the ability to increase. The rise of something like “New Judicial Federalism” at the state level could have major implications for the future of American constitutional law.
It is possible that, for the first time in American history, the United States Supreme Court is no longer the final word on constitutional interpretation. State supreme courts may once again be ready to take on their proper role as the ultimate arbiters of state law, and the final word on the rights of its citizens.
Of course, the U.S. Supreme Court still retains its authority over federal questions. A state court considering a question of federal constitutional law would still have to defer to the United States Supreme Court’s interpretation of the federal Constitution.
But when a state court is asked to interpret its own constitution, the question is no longer “What did the U.S. Supreme Court say?”, it is “What does our own constitution say?”
Why It Matters
State constitutions are among the most underappreciated pillars of American law, despite the fact that they affect the daily lives of hundreds of millions of Americans.
They have the potential to provide more rights-protection than the federal Constitution does, but, as the recent developments in Pennsylvania, Hawaii, and Ohio illustrate, their value depends on whether state courts are willing to treat them as independent documents.
With any luck, the debate over lockstep interpretation will have lasting implications for the future of American constitutional law. The implications cut both ways: depending on the issue, citizens’ rights may expand or contract based on where they live.
Conclusion
Constitutions are serious matters; they touch on the most important issues facing a country at a given moment, issues like privacy, free speech, criminal procedure, due process, equality, and much more. And now Americans are realizing that there are two layers of constitutional law: the federal one, and the one underneath it, the state constitutions.
America does not have one constitution, it has fifty constitutions. And as a matter of law, that is precisely how it is supposed to be.
See Robert F. Williams & Lawrence Friedman, The Law of American State Constitutions 225–41 (2d ed. 2023).
Michael L. Smith, Species of State Constitutional Lockstepping, 71 Vill. L. Rev. (forthcoming 2026) (manuscript at 3–4).
PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980).
State Constitutional Law Developments in the Law: Introduction, 139 Harv. L. Rev. 1371, 1371–75 (2026).
Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, 309 A.3d 808 (Pa. 2024).
Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 348–49 (2022).
Allegheny Reproductive Health Center, 309 A.3d at 823–31.
State Constitutional Law Developments in the Law: Introduction, 139 Harv. L. Rev. at 1374–75 (2026).
Id.
Id.
Id. at 1375–76.
Id.
William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491–92 (1977).
State Constitutional Law Developments in the Law: Introduction, 139 Harv. L. Rev. at 1376–80 (2026).
Comments