The Many Versions of State Constitutional Lockstepping

Rather than engage in an independent analysis of a state constitutional provision’s text, context, and history, state courts often default to applying the same rules and standards of review as the U.S. Supreme Court uses to interpret and apply similar federal constitutional provisions. Courts and commentators often criticize this practice, known as lockstepping, in general terms. But identifying the different ways courts lockstep makes for more precise criticism (and the occasional acknowledgment of where parallel interpretations are warranted).

In a forthcoming law review article, I identify variations in how courts incorporate federal constitutional doctrine into state constitutional law. Scholars of state constitutional law have already identified several versions of lockstep interpretation, including “unreflective” lockstepping, in which state courts automatically apply federal doctrine without even contemplating the state constitution, and “methodological” lockstepping, in which state courts apply federal methods of interpretation and adjudication — think tiers of scrutiny and clause-bound interpretation — to ill-suited state constitutional contexts. While these species of lockstep interpretation are worth considering independently, there are others that courts and commentators should also take into account.

For example, some courts engage in “atextual lockstepping,” in which they interpret state constitutional provisions in a manner identical to federal courts’ interpretation of the U.S. Constitution, even though the provisions in the state constitution are worded differently. For example, Article 1, Section 13 of the Texas Constitution prohibits “cruel or unusual punishment,” yet Texas’s Court of Criminal Appeals — the highest court in the state for criminal matters — interprets this provision in lockstep with the U.S. Supreme Court’s treatment of the Eighth Amendment’s prohibition of “cruel and unusual punishment.”

Other state courts employ what I call “lazy lockstepping.” Courts engaging in this method of interpretation acknowledge that their state constitution may apply to the case before them, yet interpret the state constitution in lockstep with federal doctrine after citing a case or two that approves of this lockstep approach. As it turns out, tracing these case citations back often reveals that the original decision to interpret the state constitution in lockstep with federal constitutional law was based on nothing more than an unsupported assertion. In other cases, tracing the precedents back reveals that the lockstep determination originates in a statement made about an entirely different state constitutional provision. Courts’ tendency to lazily rely on a citation or two and call it a day perpetuates a lockstep doctrine that is, at its origin, baseless.

Another form of state constitutional interpretation is “mandatory lockstepping.” Some state constitutions themselves require state courts to interpret provisions, even differently worded provisions, in lockstep with federal constitutional doctrine. For example, Article I, Section 12 of Florida’s constitution prohibits unreasonable searches and seizures, and includes distinct text prohibiting the “unreasonable interception of private communications by any means.” Despite this state-specific language, the provision goes on to require that the right be “construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.”

Finally, some courts employ a practice that I term “sticky lockstepping.” This refers to a variation in which state courts continue to protect individual rights under the state constitution in accordance with past federal precedent, despite the U.S. Supreme Court rolling back or eliminating this protection. For example, state courts that recognized a state constitutional due process right to abortion that mirrored the U.S. Supreme Court’s reasoning in Roe v. Wade might maintain this state-level protection even after the elimination of that right at the federal level.

Distinguishing between forms of lockstep interpretation may strengthen arguments against the practice. Rather than critiquing lockstep interpretation in the abstract, critics can layer arguments — identifying multiple levels of failure that occur when courts engage in ill-considered lockstep interpretation. For example, a state court that interprets a prohibition on “cruel or unusual punishment” in the same way the U.S. Supreme Court interprets the Eighth Amendment may be critiqued for engaging in atextual lockstep interpretation. But the same court may also be vulnerable to criticism for unreflective or lazy lockstepping if it applies this interpretation without considering the state constitution’s separate protection, or if it does so based on an offhand citation to case law that traces back to a baseless proclamation several decades prior. When rules are grounded in multiple forms of lockstep interpretation, they may be particularly vulnerable to criticism.

Additionally, recognizing the varieties of lockstep interpretation demonstrates that not all uniformity in constitutional interpretation is a negative thing. State courts may engage in “reflective” lockstepping, carefully consider whether to adopt federal doctrine when interpreting their own constitutional provisions, and conclude that the U.S. Supreme Court’s approach is a good fit for the state constitution’s text, history, and purposes. As the Court continues to pare back individual rights, sticky lockstepping may provide enhanced individual rights protection by remaining in lockstep with older, more protective federal constitutional doctrine. While many instances of state constitutional lockstepping ignore unique textual, structural, and historical features of state constitutions, not all instances of lockstep interpretation deserve condemnation.

Michael Smith is an associate professor of law at the University of Oklahoma College of Law.

Suggested Citation: Michael Smith, The Many Versions of State Constitutional Lockstepping, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (June 10, 2026), https://statecourtreport.org/our-work/analysis-opinion/many-versions-state-constitutional-lockstepping