Perhaps Unexpectedly, State Constitutions Sometimes Offer Narrower Rights than the U.S. Constitution

A recent Ohio Supreme Court decision highlights that reality is more complicated than most state constitutional law fans might like to admit: From the founding to today, state constitutions have occasionally been less protective of certain personal liberties. Yet scholars more often focus on another truth, which is that state constitutions can provide broader protections than their federal counterpart. “One of the most widely accepted notions in American constitutional law is that the federal Constitution and interpretations of the federal Constitution by the Supreme Court of the United States set a ‘floor’ for personal liberties,” a 2008 law review article declared.

That sentiment was defied in last month’s State v. Morris, in which the Ohio Supreme Court held that the state constitutional right to counsel was narrower than the federal right. Isaiah Morris, the man at the center of the case, was arrested in 2022 for involvement in several shootings. Before formal indictment or arraignment, a lower court explained the charges against him and appointed counsel. Later that same day, police read Morris his Miranda rights and interviewed him without his lawyer present. Partway through questioning, Morris arguably requested a lawyer, though that point was disputed throughout the litigation. Questioning continued without a lawyer present, and Morris confessed to stealing a phone after attempting to sell the victim marijuana.

A trial court suppressed the confession under Article I, Section 10 of the Ohio Constitution, which maintains that “in any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel.” It held that this provision went further than the Sixth Amendment to the U.S. Constitution, which applies “in all criminal prosecutions.” The U.S. Supreme Court has interpreted the Sixth Amendment to guarantee defendants access to a lawyer even if they cannot afford one and incorporated the Sixth Amendment against the states. However, it has also held that police may ask a defendant to waive the right to counsel even after the Sixth Amendment attaches. By contrast, the Ohio trial court held that the state constitution prohibited police interrogation of a defendant without their lawyer present, even where the defendant waived their right to counsel. An appellate court affirmed.

The Ohio Supreme Court reversed, holding that Article I, Section 10 was narrower than the Sixth Amendment. The court focused on textual differences: The Sixth Amendment protected a right to counsel throughout “criminal prosecutions,” the court pointed out, while Section 10 only protected a right to counsel during and in preparation for trial. The court explained that Ohioans who ratified Section 10 in 1851 must have understood the trial phase of a case to be distinct from its interrogation phase. Since the right to counsel only applied to the trial phase, police could not have violated it during their interrogation. That is, the Ohio Constitution’s right to counsel fell below the federal floor. (The court briefly also held that the Sixth Amendment had not been violated in this case).

This may be alarming, but it is not unusual in American constitutional history. Even at the founding, state constitutions were less protective than the U.S. Constitution in some ways. For example, the U.S. Constitution forbade the federal government from establishing an official religion and prohibited religious tests for holding office. However, early state constitutions officially established variants of Christianity as the state religion and prevented atheists, and perhaps more surprisingly, pastors from serving in office. Because the U.S. Constitution’s Bill of Rights was understood not to apply to the states before the Civil War, people impacted by those provisions had no federal recourse against state actors.

Even today, some state constitutions remain less protective than the U.S. Constitution in certain areas. As a matter of explicit text, Colorado, Louisiana, and Wyoming protect the right to trial by jury only in criminal cases, unlike the U.S. Constitution, which protects the right in civil cases as well.

Gun rights are another example. The U.S. Supreme Court, in New York State Rifle & Pistol Association v. Bruen, required that contemporary gun restrictions be consistent with America’s history and tradition of gun regulation to survive constitutional scrutiny. However, the Hawaii Supreme Court rejected Bruen as a framework to interpret Hawaii’s right to arms and, in State v. Wilson, found that the state’s analogue to the Second Amendment did not protect an individual right to keep and bear arms. A few years earlier, the Colorado Supreme Court rejected a previous federal framework to understand the state constitution’s analogue to the Second Amendment and used an explicit balancing analysis that the U.S. Supreme Court’s precedent precluded, which gave Colorado more leeway to regulate high-capacity magazines than it might under federal law. Courts are currently struggling with how the U.S. Supreme Court’s Second Amendment jurisprudence relates to regulations of high-capacity magazines.

Knowing that state constitutions may offer less protection of a right than the U.S. Constitution, wise lawyers will remember to bring both state and federal constitutional challenges in state court. U.S. Sixth Circuit Court of Appeals Judge Jeffrey Sutton opened his book 51 Imperfect Solutions with a basketball analogy. A player fouled while driving to the basket would be foolish not to take both free throws, Sutton wrote, just as lawyers should raise state constitutional claims alongside their federal constitutional claims. The converse is also true: Lawyers who want the best chance of winning a case should not neglect federal rights when they raise state claims. State constitutions will likely continue to offer less protection of certain rights.

At their core, American constitutions attempt to, among many other things, define liberty. That has proven challenging throughout our history. As Abraham Lincoln said during the Civil War, “We all declare for liberty; but in using the same word we do not all mean the same thing.” Given its originalist philosophy, the majority of the U.S. Supreme Court focuses on how (it thinks) Americans in the 18th century understood liberty when interpreting constitutional rights. But as they drafted state constitutions in the 19th, 20th, and 21st centuries, Americans have repeatedly chosen to define liberty differently than they did at the founding. Many times, this has meant raising “liberty” above the federal floor to recognize a right to education or to a healthy environment. American constitutional law is an ongoing dialogue about how to define liberty as much as it is a set of black-letter law rules. Some state constitutional drafters and interpreters participating in that conversation will choose to prioritize certain rights less than U.S. Supreme Court justices do.

Marcus Gadson is an associate professor of law at the University of North Carolina — Chapel Hill.

Suggested Citation: Marcus Gadson, Perhaps Unexpectedly, State Constitutions Sometimes Offer Narrower Rights than the U.S. Constitution, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 26, 2026), https://statecourtreport.org/our-work/analysis-opinion/perhaps-unexpectedly-state-constitutions-sometimes-offer-narrower-rights