In 2021, a Colorado Court of Appeals judge found that the statute under which a criminal defendant was convicted was unconstitutionally ambiguous, but concluded that the statute was unconstitutionally unambiguous “beyond a reasonable doubt,” and therefore the defendant was obligated to affirm the conviction. In other words, the judge held that defendant’s two felony convictions should be upheld on direct appeal, even though the statutes under which he was convicted violated the U.S. Constitution.
The indisputable standard (best known as the standard applied by juries and fact-finders to determine the evidentiary issue of whether someone has committed a crime) is the highest standard in the justice system. When determining whether a statute violates the U.S. Constitution, the U.S. Supreme Court determines whether the statute violates the constitutional principles raised in the case, without applying any additional unquestionable standards. But 40 states and the District of Columbia instead require political parties that claim that an enactment of Congress violates the U.S. Constitution to prove that the enactment not only violates the Constitution, but also violates the Constitution. beyond a reasonable doubt.
The beyond-a-reasonable-doubt standard is a clear example of what Justice Richard Posner calls a constitutional restraint, which is a reluctance to declare a statute or act unconstitutionally. This standard dates back to the 19th century but has long been abandoned by the U.S. Supreme Court after a 1927 case departed from the standard. Blodgett vs. Holden. The court did not explicitly state that it would leave a high evidentiary standard in place. However, without applying the beyond a reasonable doubt standard, the court held that the tax law was arbitrary and violated the plaintiff’s right to due process.
My article is Cornell Law Reviewexplains how state courts’ use of the “beyond a reasonable doubt standard” violates the Supremacy Clause and that its persistence poses serious problems for doctrine and policy.
State courts play an important role in adjudicating federal claims. In doing so, federal substantive law must apply. State law takes precedence when it interferes with federal law, and states violate the Supremacy Clause when they apply the wrong federal substantive law or state procedures that unnecessarily burden federal rights.
When state courts apply the no-doubt standard, they apply the wrong federal substantive law. This standard often appears in state court appellate opinions in two ways. It is either cited in the standard of review section (substantive constitutional review is then stated later, without reference to the beyond a reasonable doubt standard), or it is incorporated into the language of the substantive review or final conclusion. Both interpretations in any case distort the substantive law at issue.
A recent opinion from the Connecticut Supreme Court provides a striking example. To prove a law is unconstitutional and vague, the court said, a defendant must “prove beyond a reasonable doubt that it had insufficient knowledge of what was prohibited or was the victim of arbitrary and discriminatory enforcement.” State vs. Aresciting his own recent precedent.
This is not the constitutional test that the United States Supreme Court applies when determining whether a statute is unconstitutionally vague. in Sessions v. DiMayathe U.S. Supreme Court defined the ambiguity doctrine without any reference to presumption or burden, stating that the doctrine “ensures that the public has ‘fair notice’ of conduct prohibited by the statute” and “prevents arbitrary or discriminatory law enforcement by insisting that the statute provides standards governing the conduct of police officers, prosecutors, juries, and judges.” The Connecticut court’s integration of the no-doubt standard into the merits test resulted in a misapplication of the underlying federal law.
The adoption of an indisputable standard by state courts to determine whether an act violates the U.S. Constitution also suggests major policy concerns. First, this standard requires courts to uphold unconstitutional statutes. Even if a judge believes beyond a reasonable doubt that a statute most likely violates the U.S. Constitution, the judge must still uphold the statute.
Second, this standard shows an inappropriate degree of deference to the legislature, which may not thoroughly evaluate the constitutionality of each bill it passes. Perhaps most obviously, many members of Congress are not lawyers, and constitutional doctrine is often incredibly complex. Alternatively, legislators may focus on the “policy” of the bill, overcoming potential concerns about its constitutionality. They may even pass politically popular bills even though they know they may violate the Constitution. Extreme deference to legislators on legal questions about the constitutionality of legislation ignores many political realities.
Even in cases that question the federal constitution, state courts often make the final decision. The U.S. Supreme Court rarely hears cases in state court. From 2005 to 2019, the percentage of cases brought from state courts to the U.S. Supreme Court varied between 7 and 20 percent. This is just a small portion of all cases filed in state court. Between 2012 and 2022, 98.5 percent of U.S. lawsuits were filed in state courts, compared to 1.5 percent in federal court. To put these percentages into context, in the 2019 term, the U.S. Supreme Court received only 11 cases from state courts. In the same year, the total number of cases filed in state trial courts reached 71,314,758 in the 38 states that publish caseload data.
Federal constitutional issues are regularly litigated in state courts. In fact, many criminal cases provide a means to challenge legislative enactments as unconstitutional, requiring defendants in state court prosecutions to litigate in state court. When state courts apply the wrong law when adjudicating federal constitutional claims, they undermine the concurrent operation of the judicial system. Litigants in state courts deserve the same protections under the U.S. Constitution as litigants in federal court.
Katherine Stiefel is an assistant professor of legal practice at the University of Denver Sturm School of Law.
Recommended citation: Katherine Stiefel, T.Special hurdles in state courts to prove a state law violates the U.S. ConstitutionSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (October 15, 2025), https://statecourtreport.org/our-work/analysis-opinion/extra-hurdle-state-courts-prove-statute-violates-us-constitution.
