State constitutions Summary

  • Last updated on November 11, 2022

Supreme statements of state law, these documents outline fundamental political processes, set out the relationships between various governing institutions, and define a set of state-specific rights protected from government incursion.

While the Supreme Court and the U.S. Constitution are sometimes thought of as the exclusive guarantors of legal rights, for many years, state constitutions provided citizens with their basic protections. Indeed, many of the rights secured by early state constitutions were ultimately included in the Bill of Rights, thus ensuring they could not be violated by the federal government.

Beginning in the twentieth century, however, the individual liberties in the Bill of Rights began to be applied by the Court to the states through the due process clause of the Fourteenth Amendment.Incorporation doctrine By the late 1960’s most of the rights protected in the federal Constitution were protected from encroachment by state government as well. As a consequence of this expanded reach of federal rights, the importance of state constitutional rights receded.

During the tenure of Chief Justices Warren E. Burger and William H. Rehnquist, the Court cut back on some of the liberties it had previously embraced, and citizens, politicians, and interest groups increasingly turned back to state constitutions for protection. State courts recognized a growing body of rights, including many that went beyond guarantees provided by the federal courts, giving rise to what some have called a new judicial federalism.

The Supreme Court monitors the judicial decisions of state courts, including decisions based on interpretations of state constitutions, through the independent and adequate state grounds doctrine. Under the doctrine, the Court refuses to examine a case decided by a state court if that case does not raise questions about federal law and as long as the state ruling is genuinely independent of federal law. In Michigan v. Long[case]Michigan v. Long[Michigan v. Long] (1983), the Court elaborated on the doctrine and gave itself greater discretion in deciding when it could examine state court decisions.

Although this doctrine ultimately allowed for more intrusion by the federal courts into the judicial affairs of the states, it also affirmed the independent authority of the state court system and authorized the states to uphold greater protections in their constitutions than those in the Constitution. Although the Constitution and the Supreme Court establish a mandatory minimum for protected rights, state constitutions can be interpreted to secure additional rights.

Protected Rights

Generally speaking, state constitutions contain both rights similar to those found in the U.S. Constitution and rights that are unique to the state. Although state judges frequently use federal doctrine to apply state constitutional rights resembling those in the U.S. Constitution, they have also interpreted these rights more independently. Indeed, in a number of areas including free speech, equal protection, and criminal rights, state courts have offered protections that exceed those found at the federal level.

State constitutions also delineate rights that are distinct from those found in the U.S. Constitution. State constitutions have provided for special rights associated with education, welfare, health care, the environment, and collective bargaining, among others. In addition, a number of state constitutions include explicit privacy amendments, a right delineated by the Supreme Court but not explicitly mentioned in the U.S. Constitution. State courts’ interpretations of these provisions have sometimes found them to guarantee greater protections than the federal right to privacy.

Although state judges are powerfully influenced by the jurisprudence of the Supreme Court, the unique nature of many state constitutional provisions and the unwillingness of the Court to provide rulings on numerous constitutional issues means that state constitutions demand specialized, state-based interpretation. In the absence of relevant guidance from federal judges, state courts have sometimes turned to cases and doctrine provided by judges in other states. This horizontal federalism is most often practiced between states with similar constitutions.

A number of scholars remain skeptical about the merits of the new judicial federalism, suggesting that state constitutions are often unwieldy and antiquated documents, more closely resembling ordinary legislation than fundamental charters of government. State constitutions, these critics maintain, are poor substitutes for the centralized, unified, and enduring system of law provided by the Supreme Court and U.S. Constitution.

Those applauding the reemergence of state constitutions as important sources of rights have argued that these documents have creatively and effectively bolstered liberties that have been undermined and ignored by the Court. In addition, state constitutions allow for greater popular expression, particularly since they are substantially easier to alter than the U.S. Constitution.

Whatever their merits and shortcomings, state constitutions continue to affect how state government is organized and conducted. This fact, combined with their historic and continuing contribution to protecting rights, especially those neglected by the federal courts, places state constitutions at the very core of the U.S. political system.

Further Reading
  • Brennan, William J. “The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights.” New York University Law Review 61 (October, 1986): 535-553.
  • Friesen, Jennifer. State Constitutional Law. Charlottesville, Va.: Michie, 1996.
  • Tarr, G. Alan. Understanding State Constitutions. Princeton, N.J.: Princeton University Press, 1998.
  • Tarr, G. Alan, and Mary Cornelia Porter. “State Constitutionalism and State Constitutional Law.” Publius, Journal of Federalism 17, no. 1 (Winter, 1987).

Allgeyer v. Louisiana

Bill of Rights

Due process, substantive

Federalism

Incorporation doctrine

Independent and adequate state grounds doctrine

Michigan v. Long

Privacy, right to

Warren, Earl

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