Rather than independently analyzing the text, context, and history of state constitutions, state courts often default to applying the same rules and standards of review that the U.S. Supreme Court uses to interpret and apply similar federal constitutional provisions. Courts and commentators commonly criticize this practice, known as lockstepping. However, by identifying the different ways in which the courts are aligned, a more precise critique is possible (and an occasional recognition of cases in which parallel interpretations are warranted).
In a forthcoming Law Review article, I will point out variations in how courts incorporate federal constitutional principles into state constitutions. State constitutional scholars have already identified several versions of lockstep interpretation. These include “unreflective” lockstep, in which state courts automatically apply federal doctrine without even considering the state constitution, and “methodological” lockstep, in which state courts apply federal methods of interpretation and adjudication (considering scrutiny and a clause-bound hierarchy of interpretation) to inappropriate state constitutional contexts. These types of lockstep interpretations are worthy of independent consideration, but there are others that courts and commentators should consider.
For example, some courts engage in “non-textual lockstep,” interpreting provisions of state constitutions in the same way that federal courts interpret the U.S. Constitution, despite differences in the wording of those provisions. For example, Article 1, Section 13 of the Texas Constitution prohibits “cruel acts.” or However, the Texas Court of Criminal Appeals, the state’s highest court in criminal matters, has interpreted this provision in line with the U.S. Supreme Court’s treatment of the Eighth Amendment’s prohibition on “cruel punishment.” and It’s an unusual punishment. ”
Other state courts have adopted what I call “lazy lockstep.” Courts adopting this method of interpretation recognize that state constitutions may apply to the case at hand, but they interpret state constitutions in alignment with federal doctrine after citing a case or two that endorses this lockstep approach. After all, tracing back to these case law citations often reveals that the original decision to interpret state constitutions in line with federal constitutional law was nothing more than an unsubstantiated assertion. In other cases, a look back at case law reveals that lockstep decisions were made based on statements about completely different state constitutional provisions. Courts tend to lazily rely on one or two citations and call it a day, perpetuating a lockstep doctrine that is unfounded in its origins.
Another form of state constitutional interpretation is “mandatory lockstep.” Some state constitutions themselves require state courts to interpret provisions consistent with federal constitutional principles, even if they are worded differently. For example, Article 1, Section 12 of the Florida Constitution prohibits unreasonable searches and seizures and includes a clear provision prohibiting “unreasonable interception of private communications by any means.” Despite this state-specific language, the provision further requires that the right be “construed in accordance with the Fourth Amendment to the United States Constitution as interpreted by the Supreme Court of the United States.”
Finally, some courts employ a practice I call “sticky lockstepping.” This refers to a variation in which state courts continue to follow past federal precedent to protect individual rights under state constitutions, even though the U.S. Supreme Court has rolled back or eliminated this protection. For example, state courts have recognized state constitutional due process rights to abortion, mirroring the reasoning of the U.S. Supreme Court. Roe vs. Wade This state-level protection may remain even after that right is repealed at the federal level.
Distinguishing between forms of lockstep interpretation may strengthen the argument against this practice. Rather than attacking lockstep interpretations in the abstract, critics can use their arguments to identify multiple levels of failure that occur when courts use improperly considered lockstep interpretations. For example, a state court that interprets the prohibition on “cruel or unusual punishment” in the same way that the U.S. Supreme Court interprets the Eighth Amendment could be criticized for engaging in a lockstep interpretation that is not faithful to the original text. However, if the same courts apply this interpretation without considering specific state constitutional protections, or if they apply it based on random citations of case law dating back to unfounded declarations decades ago, they may also be susceptible to criticisms of unreflective or lazy lockstepping. Rules can be particularly vulnerable to criticism if they are based on multiple forms of lockstep interpretation.
Furthermore, recognizing the diversity of lockstep interpretations shows that not all uniformity in constitutional interpretation is a negative thing. State courts may engage in “reflexive” lockstepping, carefully considering whether to adopt federal principles when interpreting their own constitutional provisions, and concluding that the U.S. Supreme Court’s approach is well suited to the text, history, and purpose of state constitutions. As courts continue to curtail individual rights, sticky lockstepping could strengthen individual rights protections by aligning with older, more protective federal constitutional principles. Although many instances of lockstep interpretation of state constitutions ignore the unique text, structure, and historical characteristics of state constitutions, not all instances of lockstep interpretation are blameworthy.
Michael Smith is an associate professor at the University of Oklahoma School of Law.
Recommended quote: Michael Smith Different versions of lockstepping according to state constitutionsSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (June 10, 2026), https://statecourtreport.org/our-work/analysis-opinion/many-versions-state-constitutional-lockstepping
