A recent Ohio Supreme Court decision highlights that the reality is more complex than most supporters of the state constitution would like to admit. That is, from the time of their creation to the present day, state constitutions have sometimes been less protective of certain individual liberties. However, scholars often focus on another truth. That is, state constitutions can provide broader protections than the federal constitution. “One of the most widely accepted concepts in the U.S. Constitution is that the federal Constitution and its interpretation by the U.S. Supreme Court set the ‘floor’ for individual liberty,” a 2008 law review article declared.
That sentiment was reversed in last month’s article State vs. Morristhe Ohio Supreme Court held that the state’s constitutional right to counsel is narrower than the federal right. Isaiah Morris, the man at the center of the case, was arrested in 2022 for his involvement in multiple shootings. Prior to formal indictment or arraignment, a lower court explained the charges against him and appointed an attorney. Later the same day, police read Morris his text. miranda and interviewed him without a lawyer present. During cross-examination, Morris did ask for an attorney, a point that was disputed throughout the case. During the interrogation without a lawyer present, Morris confessed to stealing the victim’s cell phone after trying to sell her marijuana.
The trial court blocked the confession based on Article 1, Section 10 of the Ohio Constitution. The same article asserts that “In any trial and in any court, the accused shall be permitted to appear in person with an attorney and defend himself.” The court held that this provision goes further than the Sixth Amendment, which applies “to all criminal prosecutions.” The U.S. Supreme Court has interpreted the Sixth Amendment, which guarantees defendants access to an attorney even if they cannot afford one, to include the Sixth Amendment against states. However, it also held that even after the Sixth Amendment applies, police can still require defendants to waive their right to counsel. In contrast, an Ohio trial court held that the state constitution prohibits police from interrogating a defendant without an attorney present, even if the defendant waives his or her right to an attorney. The Court of Appeal agreed.
The Ohio Supreme Court reversed, holding that Article I, Section 10 is narrower than the Sixth Amendment. The court focused on the difference in wording. The court noted that while the Sixth Amendment protects the right to counsel throughout a “criminal prosecution,” the Tenth Amendment protects the right to counsel only during trial and preparation for trial. The court explained that the people of Ohio, who ratified Article 10 in 1851, must have understood that there was a distinction between the trial and interrogation stages of a case. Because the right to counsel applies only to the trial stage, police could not violate it during interrogations. In other words, the Ohio Constitution’s right to legal counsel has fallen below that of Congress. (The court also temporarily held that the Sixth Amendment was not violated in this case).
This may be alarming, but it is not unusual in American constitutional history. Even at their founding, state constitutions were in some ways less protective than the United States Constitution. For example, the U.S. Constitution prohibited the federal government from establishing a state religion and prohibited religious exams for public office. But early state constitutions formally established a variant of Christianity as the state religion and prohibited atheists, and perhaps more surprisingly, pastors, from holding public office. Because the U.S. Constitution’s Bill of Rights was understood not to apply to the antebellum states, those affected by these provisions could not bring federal action against state actors.
Even today, some state constitutions remain less protective than the United States Constitution in certain areas. By explicit language, Colorado, Louisiana, and Wyoming protect the right to a jury trial only in criminal cases, unlike the U.S. Constitution, which also protects the right in civil cases.
Gun rights is another example. The United States Supreme Court New York State Rifle & Pistol Association v. Bruendemanded that modern gun regulations be consistent with America’s history and tradition of gun control in order to survive constitutional review. However, the Hawaii Supreme Court rejected bridge As a framework for interpreting Hawaii’s right to arms, State vs. Wilsonfound that the equivalent of the Second Amendment does not protect an individual’s right to keep and bear arms. Several years ago, the Colorado Supreme Court rejected the previous federal framework for understanding the Second Amendment equivalent of state constitutions and adopted an explicit balancing analysis not possible under U.S. Supreme Court precedent, giving Colorado more latitude to regulate large-capacity magazines than it could under federal law. Courts are currently grappling with how the U.S. Supreme Court’s Second Amendment precedent relates to regulating large-capacity magazines.
Knowing that state constitutions may provide less protection for rights than the U.S. Constitution, smart lawyers will remember to challenge both the state and federal constitutions in state court. Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit opens the book. 51 Incomplete solution Using a basketball analogy. Sutton wrote that it would be foolish for a player who was fouled on the way to the basket not to take both free throws, and that lawyers should also raise state constitutional claims alongside federal constitutional claims. The reverse is also true. Lawyers who want the best chance of winning a case should not ignore federal rights when bringing state claims. State constitutions will continue to weaken protections for certain rights.
At its core, the American Constitution seeks to define, among other things, freedom. It has proven difficult throughout our history. As Abraham Lincoln said during the Civil War, “We all proclaim our freedom, but the exercise of that freedom… words We are not all saying the same thing. ” Given the philosophy of originalism, the majority of the U.S. Supreme Court focuses on how 18th-century Americans understood freedom when interpreting constitutional rights. But in drafting state constitutions in the 19th, 20th, and 21st centuries, Americans have repeatedly chosen different definitions of freedom than they had at the time of the nation’s founding. In many cases, this has meant elevating “freedoms” that recognize the right to education and a healthy environment above Congress. The American Constitution is both a set of black-letter legal rules and an ongoing dialogue about how to define freedom. Some of the framers and interpreters of state constitutions participating in that conversation may choose to prioritize certain rights over the justices of the U.S. Supreme Court.
Marcus Gadson is an associate professor of law at the University of North Carolina at Chapel Hill.
Recommended quote: Marcus Gadson Perhaps unexpectedly, state constitutions may provide narrower rights than the U.S. ConstitutionSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 26, 2026), https://statecourtreport.org/our-work/analysis-opinion/perhaps-unexpectedly-state-constitutions-something-offer-narrower-rights
