A Practical Guide to Using State History to Overcome Federal Precedent

If you are a lawyer who practices in state court and are not an originalist, this article is for you — though, I should note, it’s not an anti-originalist column. Instead, it’s practical advice to those who don’t usually “think like an originalist.”

Many lawyers haven’t learned how to think like originalists when it comes to state constitutions and are therefore likely to waive state constitutional issues, letting themselves and their clients down in the process. With the following advice, I hope to point lawyers in the right direction and address an epidemic of state constitutional waiver.

“Originalism” is a method of constitutional interpretation that requires judges to follow the meaning of the Constitution at the time it was written. Here, though, I use the term “originalism” colloquially — and decidedly more broadly. It functions as shorthand for an approach to lawyering in which attorneys look to a variety of historical sources to help understand what language and circumstances might have meant at the time of adoption, especially in their state constitutions, as a tool to argue against precedent.

How to Take Another Free Throw

State constitutional enthusiasts have for decades encouraged lawyers to bring state constitutional arguments in addition to federal constitutional arguments. As U.S. Court of Appeals Judge Jeffrey Sutton puts it, why take only one free throw when you can take two?

To a large degree this has worked. Today’s lawyers, especially criminal defense lawyers, do often make parallel federal and state constitutional claims or defenses. But, invoking the state constitution is not enough. Just because a party argues the state constitution should be interpreted differently from the U.S. Constitution doesn’t mean judges will bite — you need a reason beyond, “it would be good for my client.”

Surprisingly, counsel frequently fail to provide one. A case I reported on for State Court Report last year is typical. The court noted: “Although petitioners bring their claims under the Equal Protection Clause and Article I, Section 1 of the Wisconsin Constitution, they do not provide an independent argument under the Wisconsin Constitution.” There was no separate briefing about the state constitution’s text, history, or even policy. Thus, the claim was waived. Finding similar attorney failures is not difficult.

These waivers are especially common when the text of the state and federal constitutions are the same, such as the near-identical text that the Fourth Amendment and its many analogues share. But it often is true of differently worded provisions, like Wisconsin’s “equal protection clause,” as well.

Learning to Unlove Precedent

Usually the reason for a waiver is understandable: Precedent. State constitutionalism was so neglected for so long that all state court systems have built precedent interpreting various provisions of their state constitutions the same way the federal courts have interpreted similar—or even not that similar—provisions of the federal constitution.

Now, it’s a bold move to argue precedent is simply wrong, and lawyers are understandably reticent to do it. When litigating state constitutions, lawyers often slice the cheese pretty thin, conceding it was fine that the interpretation of the state constitution followed federal precedent, up until the specific issue involving their client. The most principled argument is that the federal courts got their own precedent wrong about that particular issue. But from the perspective of state judges accustomed to following federal precedent, why jump off the train now?

To convince a judge that federal precedent — and perhaps some state precedent — is simply wrong, try thinking like an originalist.

Precedent Changes More than Meaning

At its core, originalism is an affirmation of the “fixation thesis,” the proposition that the meaning of constitutional text does not change after it is adopted. If “due process of law” meant one thing in 1791 then an application of the Fifth Amendment in 2025 would depend on the 1791 meaning even if the English language has changed in the intervening 234 years. In contrast, the meaning of those same words in the Georgia Constitution, ratified in 1982, would depend on the meaning of the English language in 1982. (For “readopted” language there’s a whole separate debate.)

In practice, however, the fixation thesis doesn’t do as much as you might think. While we speak and write a bit differently than Americans did in 1791, or 1868, or 1982, the language isn’t that different. If Doctor Who took you back to 1787, you could have a conversation with George Washington and probably not lose that much in translation.

A bigger problem is that sometimes precedent was wrong about meaning from the outset. This is most of what originalist debates are actually about! For example, hardly anyone argues with a straight face that in 1787 — or in 2025! — the meaning of “regulate Commerce . . . among the several States” actually includes forbidding you from growing a plant on your own property for your own use, as the Supreme Court found in 2005. The question for judges today is whether to follow that linguistically incorrect precedent.

History Is Popular

With that background, let’s get back to making a state constitutional argument in the face of bad federal precedent. If you’re going to make that second free throw, you’re going to have to give a reason why the state provision should be interpreted differently from the federal one. You’ll likely need to ask the court to reconsider existing federal precedent and not apply it to the state constitution. A very handy method to address these points is to argue that federal precedent diverges from the original meaning of the state constitution.

Using historical arguments in state court is common and not all that controversial — they’re just not generally called “originalist.” State courts are proud of their own constitutions and their adoption history. Sometimes how they talk about that history isn’t entirely straightforward, though. State courts often have multifactor tests about whether they’ll break with parallel federal precedent that includes consideration of a state’s specific history but also all kinds of other factors such as the “workability” of precedent, whether federal precedent adequately protects rights, and so on.

But frankly, these tests usually come down to two things: policy and state-specific history. Which is another way of saying policy and original meaning. Practitioners should consult their state’s specific test before anything else. (For reference, here are Pennsylvania’s and Minnesota’s.) All of these tests have at their core whether the state constitution is special in some way and whether federal precedent has veered off course.

Convincing a court that federal precedent conflicts with a state constitution’s meaning can be done a couple of ways.

First, try arguing that the federal precedent is wrong about the original meaning of both the federal and state constitutions. State courts can’t overturn federal court decisions, of course. But they can say federal courts were wrong. For example, the U.S. Supreme Court has said that if a renter doesn’t want a city housing inspector in their home, the government can get a warrant even if it lacks individualized probable cause. In response, there are good arguments that the meaning of “probable cause” in 1791 (or in 2025) requires individualized evidence. A lawyer can argue that the U.S. Supreme Court is simply wrong but that the state court can reject that precedent and be right about the same language in the state constitution. Depending on the state, this could also require asking the state court to overturn its own, also wrong, precedent.

Second, you can argue that even if the federal precedent is right about the original meaning of the federal Constitution, the original meaning of the state constitution is different. In an Eighth Amendment case, for example, it might be conceded that a certain punishment was not “cruel and unusual” in 1791 or 1868 but was when the state constitutional equivalent was adopted, say Montana’s in 1972.

Whichever route you take, you’ll need to focus on the meaning of the relevant language, such as “probable cause,” at the time of the state constitution’s adoption, whether that’s 1820 (Maine) or 1963 (Michigan). But if the meaning of the language hasn’t changed much — other than the case law — then you can supplement it with the language’s meaning today. “The meaning hasn’t even changed,” you might say. “It’s just those federal courts who are out of line!”

How to Originalize

Doing this isn’t diabolically difficult — it’s just outside a lot of lawyers’ comfort zones. (Hence the waiver epidemic.) Making originalist arguments requires focusing on the language from when the state constitution was adopted. Many of the sources, such as case law, statutes, or hornbooks, will be the same; they’ll just come from that time. But some sources will be less familiar. Crucially, you can look at the record of the state’s constitutional convention — it’s available for many states — and see if the delegates debated the provision in question. And when “plain meaning” is at issue (that is, the language isn’t a term of art), non-legal sources using the relevant language from that time, such as newspapers or books, will also be relevant. Again, you don’t even need to argue that the meaning of the language at issue has changed since the relevant constitution was adopted. You just need to first argue that the federal courts since then got the meaning wrong; second, provide the better answer; and (the hard part) then convince the state court it should not follow (or at least distinguish) relevant federal precedent.

In 2025 many of these resources are easily accessible. Some are on Google Books, Archive.org, and similar services for free. Databases such as HeinOnline or Newspapers.com have even more materials, often helpfully organized. (Libraries often have free access.) Dig into these tools and make your best argument.

Any failure to do so isn’t because the “waiving” lawyers are ideologically opposed to originalism or aren’t smart enough to take a look at history. It’s simply that they haven’t learned how. Lawyers are so used to researching case law and looking at statutes that arguing the meaning of a word from 100 or 200 years ago may not come naturally; especially with a deadline pending. That could be remedied a bit if law schools taught “how to do originalism” more. It also could be as simple as counsel spending some time looking at “originalist briefs” in similar cases.

Using these methods doesn’t guarantee a winning originalist argument on every issue. These are likely hard cases anyway. But at least you’ll have an argument, unlike the lawyers who waived their state constitutional arguments in the cases discussed above.

Finally, if you’re having trouble doing all this, feel free to reach out to me! Part of my job is to evangelize the Good News of state constitutional independence. I’d be happy to point your originalist argument in the right direction, even if you’re a committed non-originalist.

Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice and the author of the book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.

Suggested Citation: Anthony Sanders, A Practical Guide to Using State History to Overcome Federal Precedent, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 7, 2025), https://statecourtreport.org/our-work/analysis-opinion/practical-guide-using-state-history-overcome-federal-precedent