The Extra Hurdle in State Courts to Prove a Statute Violates the U.S. Constitution

In 2021, a Colorado Court of Appeals judge found a statute under which a criminal defendant was convicted to be unconstitutionally vague but concluded that he was bound to affirm the convictions because the statute was not unconstitutionally vague “beyond a reasonable doubt.” In other words, the judge determined that the defendant’s two felony convictions should be upheld on direct appeal even though the statute under which the defendant was convicted violated the U.S. Constitution.

The beyond-a-reasonable-doubt standard — most well-known as the standard a jury or fact finder applies to determine the evidentiary question of whether someone is guilty of a crime — is the highest standard in the judicial system. When the U.S. Supreme Court determines whether a statute violates the U.S. Constitution, it decides whether the statute violates the constitutional doctrine raised in the case without applying the additional beyond-a-reasonable-doubt standard. Yet, forty states and the District of Columbia instead require that a party arguing that a legislative enactment violates the U.S. Constitution prove not only that the enactment is unconstitutional, but also that it is unconstitutional beyond a reasonable doubt.

The beyond-a-reasonable-doubt standard is a clear example of what Judge Richard Posner calls constitutional restraint, which is a reluctance to declare a statute or act unconstitutional. The standard dates back to the 19th century but has long been abandoned by the U.S. Supreme Court, which departed from the standard in its 1927 case Blodgett v. Holden. The Court did not explicitly state it was leaving behind the heightened standard of proof. But without applying the beyond-a-reasonable-doubt standard, the Court held a tax statute was arbitrary and violated the plaintiff’s right to due process.

My article, forthcoming in the Cornell Law Review, explains how state courts’ use of the beyond-a-reasonable-doubt standard violates the Supremacy Clause and that its persistence presents serious problems of doctrine and policy.

State courts play an essential role in adjudicating federal claims. When they do so, they must apply substantive federal law. State law is preempted if it interferes with federal law, and when states either apply the wrong federal substantive law or apply a state procedure that unnecessarily burdens a federal right, it violates the Supremacy Clause.

When state courts apply the beyond-a-reasonable-doubt standard, they apply the wrong substantive federal law. The standard often appears in state court appellate opinions in two ways: It is either recited in the standard-of-review section (and then the substantive constitutional test is stated later without reference to the beyond-a-reasonable-doubt standard) or merged into the articulation of the substantive test or the ultimate conclusion. Both recitations distort the substantive law at issue in any given case.

A recent opinion from the Connecticut Supreme Court provides a stark example. For a defendant to prove that a statute is unconstitutionally vague, he must “demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement,” the court said in State v. Ares, quoting its own recent precedent.

That is not the constitutional test the U.S. Supreme Court applies when determining whether a statute is unconstitutionally vague. In Sessions v. Dimaya, the U.S. Supreme Court defined the void-for-vagueness doctrine without any reference to a presumption or burden, stating the doctrine “guarantees that ordinary people have ‘fair notice’ of the conduct a statute proscribe” and “guards against arbitrary or discriminatory law enforcement by insisting that a statute provide standards to govern the actions of police officers, prosecutors, juries, and judges.” The Connecticut court’s merging of the beyond-a-reasonable-doubt standard into the substantive test, then, resulted in an incorrect application of the underlying federal law.

State courts’ use of the beyond-a-reasonable-doubt standard to decide whether an act violates the U.S. Constitution also implicates major policy concerns. First, the standard requires courts to uphold unconstitutional statutes. If a judge is convinced more likely than not — but not beyond a reasonable doubt — that a statute violates the U.S. Constitution, the judge must nonetheless uphold the statute.

Second, the standard provides improper extreme deference to legislatures, who may not thoroughly evaluate the constitutionality of each piece of legislation they pass. Perhaps most obviously, many legislators are not lawyers, and constitutional doctrines are often incredibly complicated. Or legislators may be intensely focused on the “policy” of the enactment over potential concerns regarding the enactment’s constitutionality. They may even pass legislation they know might be unconstitutional but is politically popular. Extreme deference to legislators regarding legal questions pertaining to the constitutionality of their legislation ignores many political realities.

State courts often have the last word in cases, even cases raising questions of federal constitutional law. The U.S. Supreme Court takes very few state court cases. From 2005 to 2019, the percentage of cases before the U.S. Supreme Court arising from state courts oscillated between 7 and 20 percent. This is an extremely small sliver of the total cases filed in state court: Between 2012 and 2022, 98.5 percent of U.S. cases were filed in state court, as compared to 1.5 percent filed in federal court. To put those percentages in context, in the 2019 term, just 11 cases before the U.S. Supreme Court arose from state courts. That same year, in 38 states — the states that publish data about caseloads — the total number of cases filed in state trial courts reached 71,314,758.

Federal constitutional issues are routinely litigated in state courts. Indeed, many criminal cases provide avenues to challenge legislative enactments as unconstitutional, and defendants in state court prosecutions must litigate their cases in state courts. When state courts apply the wrong law when adjudicating federal constitutional claims, it undermines how our concurrent judicial systems operate. Litigants in state courts deserve the same protections from the U.S. Constitution as litigants in federal courts.

Katherine Steefel is an Assistant Professor of the Practice of Law at the University of Denver’s Sturm College of Law.

Suggested Citation: Katherine Steefel, The Extra Hurdle in State Courts to Prove a Statute Violates the U.S. Constitution, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 15, 2025), https://statecourtreport.org/our-work/analysis-opinion/extra-hurdle-state-courts-prove-statute-violates-us-constitution