Originalism is becoming a mainstay of constitutional interpretation in federal courts, reshaping doctrine from gun control to reproductive rights. But state courts are not required to go down that path. Indeed, features of judicial federalism, state constitutions, and state court practice provide state judges with the option of developing different interpretive courses.
A recently released litigator’s guide states: fight against originalism — My co-authors and I discuss various ways that lawyers can leverage these unique features of state courts to challenge the originalist claims they face in litigation. Sampling continues.
Asserting the constitutional independence of the states
One of the most powerful tools available to state courts is the rebuttal of lockstepping with federal precedent. Based on the principle of judicial federalism, the U.S. Constitution sets floors, not ceilings, for individual rights, and state constitutions may provide additional or broader protections. And state courts are not required to follow federal courts’ interpretive approaches, such as originalism, when interpreting similar state constitutional provisions.
Arguments against lockstepping may resonate with state judges because they speak directly to the importance of the judiciary’s role in preserving state constitutional history, state-specific precedent, and local constitutional traditions.
In practice, such an argument proceeds in two steps. First, litigants will ask the court to depart from federal precedent based on existing secession rules. These rules may explicitly permit courts to consider policy concerns and practical consequences that an originalist analysis would normally reject. Second, litigants will argue for a non-original approach based on state law to account for the fact that even if they refuse to align, courts still must choose how to interpret state constitutions.
Many states have formal or informal principles governing when courts should depart from federal constitutional interpretation. Additionally, some countries have long practiced state-specific constitutional interpretation, even in the absence of explicit exit rules. More recently, some have questioned previous decisions that led to unfair lockstepping. Taken together, these traditions provide fertile ground for the argument that federal originalism should not determine state constitutional outcomes.
Even in the absence of direct and precise precedent, litigants may invoke state-specific constitutional history or cultural commitments. For example, a Hawaii Supreme Court justice recently cited the state’s “spirit of aloha” to justify a departure from a U.S. Supreme Court ruling. New York State Rifle & Pistol Association v. Bruenviolated national firearm regulations.
Finally, many state constitutions and amendments are relatively new, which can undermine the lockstepping argument. Many state constitutions are much newer than the federal constitution, and many provisions have no meaningful equivalent in the federal constitution. New provisions are also added periodically through amendments. As the justices are well aware, linking these provisions to jurisprudence developed around centuries-old federal codes can be analytically inconsistent.
Constitutional interpretation of supremacy and nation-first principle
Some states are doctrinally committed to state constitutional supremacy, requiring courts to determine state constitutional claims before addressing federal claims. These supremacy rules often come with the promise that state constitutional issues will be decided primarily on the basis of state precedent, relying only on federal precedent to the extent the court finds it persuasive. These principles strengthen the basis for state courts to interpret the Constitution independently of the federal Constitution. And courts are more likely to analyze the text, history, and values of state constitutions from their own perspective, rather than following the federal’s own unique analysis. In dominant jurisdictions, litigants can combine state-first arguments with anti-lockstepping principles to encourage courts to adopt a non-originalist approach.
Originalism is not the default for state constitutions.
In theory, even if a court rejects lockstepping, litigants could still face the argument that originalism should prevail as the default method of interpretation because, for example, lockstepping was used in one or more prior cases.
Litigants can respond by showing that originalism is not the established and universal way of interpreting the Constitution in their state. Some justices, such as Justice Rebecca Durrett of the Wisconsin Supreme Court, have even pointed out that “the choice of an earlier court to interpret something like textualism does not constrain later courts from using the same methodology.”
A nation-specific critique of originalism as a method
fight against originalism It details a number of criticisms of originalism as a method. Some are available only in state court or in state constitutional claims.
For example, proponents of originalism often argue that judges lack democratic accountability and must be severely constrained, and that originalism provides that constraint. However, 38 states use elections as part of their system for selecting high court judges. Most also impose reappointment requirements, and all state supreme courts except Rhode Island impose some form of term limits or retirement age. This liability structure complicates the need for state courts to assert drug originality.
Similarly, the relative ease of amending state constitutions reduces the appeal of originalism. When the public disagrees with a state court’s interpretation of the constitution, amendments are often a viable option. This reduces the need for strict constraints on judicial interpretation.
Finally, originalist evidence is often tenuous or unreliable in state contexts. The historical record may be tenuous, incomplete, or non-existent regarding important provisions, making originalism not only normatively contestable but practically unworkable.
Taken together, these doctrinal and institutional characteristics make state courts an important and often more hospitable venue for challenging originalist claims.
If you would like to learn more about all the strategies available to address originalism in litigation across the country, be sure to visit the following websites: fight against originalism.
Chihiro Isozaki is a consultant in the Democracy Program at the Brennan Center for Justice.
Recommended reading: Chihiro Isozaki State law gives litigants additional tools to combat originalismSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (February 24, 2026), https://statecourtreport.org/our-work/analysis-opinion/state-law-gives-litigators-extra-tools-counter-originalism
