Robust State Constitutionalism Can Protect Rights and Resist Authoritarianism
We need a movement to fully unlock the potential for resistance by states
As the U.S. Supreme Court rolls back long-standing constitutional protections, advocates are increasingly looking to state courts and constitutions to protect civil rights and liberties.
The shift toward state constitutions as sources of expanded rights crosses ideological lines and issues, from abortion to criminal sentencing to property rights. It reflects a basic, often overlooked, truth about our system of government: States can provide more expansive protections for individual rights and liberties than the federal Constitution.
Bringing a state constitutional claim, then, is like taking “second shot” when “you can’t win under the federal Constitution,” as federal Judge Jeffrey Sutton put it in November at a symposium organized by the Brennan Center for Justice and the Northwestern Law Review.
What’s more, state court decisions that rest on an “adequate and independent state ground”—rulings that are not dependent on federal law interpretation—are generally insulated from U.S. Supreme Court review. In other words, when state courts interpret and apply federal law, their decisions can be appealed to federal court. But “[a] state court’s view on issues of state law is, of course, binding on the federal courts,” Justice Sandra Day O’Connor wrote in 1984. That includes interpretations of state constitutions that offer broader rights than those available under the federal counterpart.
As a result of this constitutional federalism, state courts, drawing on their respective state constitutions, are increasingly emerging as an avenue for advocates who care about securing protections for individual rights and democracy, independent of anything the Supreme Court might do.
A Response to Federal Retrenchment
On April 22, 2021, the U.S. Supreme Court signaled it was done extending limitations on excessive juvenile sentencing when it declared in Jones v. Mississippi that a judge could sentence a child to life without parole without first finding the child was incapable for rehabilitation. Brett Jones—barely 15 years old when sentenced to die in prison for killing his grandfather during an argument—was a client of the MacArthur Justice Center, where I worked as an appellate attorney. My then-colleague, David Shapiro, argued Jones’s case before the Court.
In the decade or so before Jones, the Court had issued several decisions limiting excessive sentences for minors. In 2016’s Montgomery v. Louisiana, the Supreme Court ruled that life without parole was constitutionally available for only “the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility”—or an incapacity to change. But Montgomery and related cases left open an important question, Shapiro explained in a Harvard Law Review article: “If only permanently incorrigible juveniles can be sentenced to life without parole, then how can a sentencing judge lawfully impose such a sentence without actually deciding if the juvenile before the court is permanently incorrigible?”
However, by the time Shapiro stood before the Court to argue for a “modest extension” of Montgomery, requiring a finding of permanent incorrigibility before handing down a life-without-parole sentence to a juvenile, Justices Anthony Kennedy and Ruth Bader Ginsburg, who had consistently favored expanded sentencing protections for children, were both gone. The Jones loss signaled that the Eighth Amendment’s bar on cruel and unusual punishments did not include meaningful protections for children facing the harshest possible prison sentences.
But in response to this defeat, a new strategy flourished: turning to state courts and making state constitutional arguments to protect rights, even if the Supreme Court refused to do so under the federal Constitution.
Shapiro and our colleague Monet Gonnerman published their reflections on Jones in an essay entitled, “To the States.” Sure enough, since Jones, multiple state high courts have announced that their state constitutions provide broader sentencing protections for children. Most significantly, in 2024’s Commonwealth v. Mattis, Massachusetts’s high court barred all life without parole sentences for anyone under 21—without exception. Iowa, Michigan, New Jersey, and Washington’s supreme courts, among others, have also expanded sentencing protections for minors beyond the federal floor.
A Movement Supercharged
At around the same time as the Jones decision, the Brennan Center launched State Court Report, a non-partisan publication focused on news and commentary about state courts and constitutions. The Brennan Center has also filed friend-of-the-court briefs encouraging state constitutional interpretations independent of federal case law; brought together judges, scholars, and practitioners at symposia to discuss the role and importance of state constitutions; and conducted research about spending in judicial elections, legislative assaults on state courts, and diversity on state judiciaries. Organizations like the American Civil Liberties Union and the Institute for Justice have shifted focus to state supreme courts, and new organizations have popped up to focus exclusively on state courts and constitutions.
The emerging movement around state courts and constitutions gained speed after the U.S. Supreme Court in 2022’s Dobbs v. Jackson Women’s Health Organization declared there was no federal constitutional right to abortion, overturning decades of precedent. The decision also raised questions about the future of other rights rooted in substantive due process, such as contraception and same-sex marriage.
Dobbs triggered an explosion of state constitutional litigation around reproductive rights. To date, 12 state supreme courts have recognized at least some constitutional protections for abortion. At the same time, supreme courts in five states have held there is no right to an abortion in their constitutions. Some courts have raised the specter of “fetal personhood”—a doctrine that would not just allow but likely require prohibition of abortion, further curtailing reproductive freedom in the name of fetal protections. This demonstrates that robust state constitutional protections don’t necessarily favor those on any particular side of an issue.
State constitutional litigation over abortion restrictions is ongoing in another dozen or so states. Additionally, as of 2024, citizens of 10 states have voted to add amendments to their state constitutions protecting abortion, including in Arizona, California, Maryland, Michigan, Missouri, Montana, Colorado, Nevada, New York, Ohio, and Vermont.
State constitutional abortion litigation invokes a range of diverse constitutional rights and provisions, including privacy, bodily integrity, equality, healthcare freedom, and even religious liberties. This array of theories underscores the creativity of advocates and the breadth of constitutional protections across the states. It has also exposed the dangers of lowering the federal floor: The country is now a patchwork of rights, with freedoms depending on geography and conflicts erupting about which states’ laws should apply to inter-state disputes related to abortion care.
Voting Rights, Ballot Measures, and Gerrymandering
Given the midterm elections this year, a substantial portion of upcoming state constitutional litigation is likely to center on democracy-related provisions. Almost every state constitution explicitly protects the right to vote. State courts are frequently called upon to apply these provisions to determine the constitutionality of laws governing when and how people cast ballots—especially in the run-up to an election.
About half the states allow for some form of direct democracy, or citizen-initiated referenda on proposed constitutional amendments and statutes. State courts play a significant role in determining whether proposed amendments will appear on a ballot, adjudicating disputes like whether signatures were properly collected or initiative language is misleading. In January, for example, the Montana Supreme Court rejected a proposed initiative for the 2026 ballot that would have added to the state constitution a provision combatting corporate political spending.
The U.S. Supreme Court’s 2019 decision in Rucho v. Common Cause, which held that the federal Constitution cannot be used to challenge partisan gerrymandering, shifted such claims to state courts, where voters say the maps run afoul of state provisions guaranteeing partisan fairness, contiguous districts, equal protection, and more. State courts have diverged on these claims, with some states striking down maps, others upholding them, and still others ruling that gerrymandering cannot be challenged under their constitutions.
Multiple gerrymandering suits are pending. Last year’s unprecedented wave of mid-decade redistricting, for example, triggered lawsuits in Missouri arguing that the state constitution prohibits mid-decade redistricting and that the resulting maps are unconstitutional.
Unique Rights
Much significant state constitutional development has centered on state clauses explicitly protecting rights not found in the federal Constitution. For example, every state constitution requires the creation and maintenance of public education. While fights over what entails an adequate public education have raged for decades, battles over whether the requirement that states provide a “common” or “free” education precludes the use of public funds to non-public schools are a new frontier. School choice advocates have won in some states, like West Virginia, but lost in others, like South Carolina.
Even state clauses mirroring the U.S. Constitution can be interpreted to protect unique rights. For example, the Georgia Supreme Court in 2023 struck down a law requiring lactation consultants to obtain occupational licenses, finding it violated the state’s due process guarantees. The decision gave Georgians the right “to pursue a lawful occupation of their choosing free from unreasonable government interference.” The U.S. Supreme Court, meanwhile, has long rejected arguments that the 14th Amendment’s due process clause protects economic liberty.
Uneven Progress and Ongoing Challenges
Despite this surge of activity, state constitutional rights remain unevenly developed and, in some areas, unrealized. The heavy criminal and civil caseloads of many state courts leave little possibility for in-depth constitutional analysis. As a result, many state courts continue to interpret their constitutions in lockstep with federal law, rarely diverging in substance or reasoning. These courts are both leaving rights on the table and outsourcing their role in deciding matters of state law.
Another barrier to state constitutional development is a lack of private causes of action for state constitutional violations. When a state actor violates someone’s federal constitutional rights, a federal statute known as Section 1983 lets the victim sue the perpetrator. “Section 1983 suits account for a significant part of the workload of federal courts,” Erwin Chemerinsky and Burt Neuborne recently wrote in The New York Times.
But most state legislatures have not passed laws authorizing private suits by people whose state constitutional rights have been violated by state or local officials. Similarly, people whose state and federal constitutional rights have been violated by federal officials—say, the families of Alexander Pretti or Renee Good, who were killed last month by an Immigration and Customs Enforcement agent—are generally unable to bring civil suits against violators, because Section 1983 concerns only violations by state and local officials (as Anya A. Bidwell and Marie Miller recently explained in The UnPopulist). Lawmakers in multiple states are trying to fill that gap by introducing state laws that provide a private cause of action against federal officials for violations of federal constitutional rights, referred to as “Converse 1983s.” There are strong arguments that using state law that way is constitutional.
In an age of federal civil rights retrenchment, the need to cultivate a robust state constitutionalism is urgent. The future of our rights and liberties may depend on how state courts, and the lawyers who practice before them, meet this moment.
© The UnPopulist, 2026
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