State Court Takeaways from Dobbs
State courts should reassert their role as primary guarantors of liberty.
In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court returned control over reproductive health autonomy to the states. That decision gives state courts an opportunity to reclaim their proper role as primary guarantors of individual liberty for their citizens.
Most state high courts make their liberty doctrines match federal law, a phenomenon known as “lockstepping.” California, for example, calls its version of lockstepping “cogent reasons,” requiring its state courts to adopt federal law when interpreting California constitutional provisions absent strong reasons to depart. Like other lockstepping rules, California’s standard presumes federal decisions are correct and defaults the state constitution’s guarantees to generally providing no additional protection above the federal constitutional floor.
By tying the Dobbs abortion ruling to federalism principles of state constitutional power over individual liberty, the high court opened the door for state courts to revisit their lockstepping rules and refocus on exploring their state constitutional liberty provisions independently of federal law. State courts should seize this opportunity to reconsider their problematic lockstep rules, which wrongly assume that federal court decisions are the authority on state constitutions, invert history, and prevent federalism from serving its core liberty-protecting function.
If a state constitutional provision was not borrowed from the federal Constitution, if a legal issue is unsettled, or if state precedent already diverges from federal doctrine, then state courts should reach for state law first. There is no structural reason why courts should analyze federal and state constitutional provisions in lockstep. On the contrary, the fundamental liberty-protecting aim of our federal government structure compels state courts to interpret their state constitutions independently. Looking solely to the federal high court is the opposite of James Madison’s insight that we best protect liberty by dividing power.
Lockstepping is also inconsistent with the law’s historical development. Adopting federal doctrine for parallel state and federal constitutional provisions might make sense if the federal provision came first. But the original 13 state constitutions predated the 1789 federal charter; indeed, the federal Constitution borrowed much from them. The federal Bill of Rights did not yet apply to the states when California adopted its first constitution in 1849. Instead, the drafters of California’s 1849 constitution borrowed from other state constitutions. And many state constitutional provisions have no federal analogues. Thus, as Rutgers Law Professor Robert Williams often asks, why would one think a federal court is the best source of interpretation for a state constitution?
A self-imposed mandate to follow federal law like California’s cogent reasons standard can require state courts to ignore clear commands from their own state constitutions. For example, California’s constitution contains a textual right to privacy that was expressly intended to protect citizens against the government collecting a person’s most private, sensitive information. The federal Constitution has no textual analogue. Yet in a 2018 decision in People v. Buza, the California Supreme Court felt bound to follow federal law and to disregard California’s constitutional privacy provision in upholding a law that required DNA collection from felony arrestees.
Lockstepping also effectively charges the U.S. Supreme Court alone with regulating rights for all 50 states. This puts liberty at risk and is the wrong approach for several reasons. There are fundamental differences between textual state constitutional rights and the federal Constitution’s protections, which are often diluted by the “federalism discount,” where the U.S. Supreme Court ratchets down federal protections to leave room for state variation. Having just one source of liberty also permits capture by political interest groups — it is far easier to influence the membership of 1 court than 51 courts.
Focusing rights protection on the federal high court is bad for federalism: a state’s role is to guard its citizens against abuses by the central government, and an independent state constitution is critical to that role. State courts that reflexively read their state constitutional guarantees as saying nothing more than the federal charter fail in their federalism function and instead make this an effectively one-law nation.
Conversely, state courts that apply an independent state-law analysis can expand rights protection. The California Supreme Court showed this in People v. Aranda when it rejected a federal double jeopardy rule that courts need not accept a partial verdict. Instead, the court applied an independent California constitutional analysis. So validating the state constitution increased liberty protections for Californians by making a state constitutional right more protective than the federal analogue.
We emphasize that independent state law is neither a liberal nor a conservative value. Concentrating authority over liberty’s scope in one national source has gone badly for both liberals and conservatives. From the liberal perspective, other than a stint during the Warren Court era and a few high-profile victories in recent years, looking to federal courts for liberty expansions has been disastrous. For most of its history, the high court has been solidly conservative, and its nature as an institution tends conservative.
Yet conservatives should remain focused on their federalism roots: the principle of limited and defined government aligns with a preference for state courts charting an independent course. As Madison wrote, by dividing power between state and national governments “a double security arises to the rights of the people.” By signaling states to unhitch their state constitutions from federal control, Dobbs encourages a return to Madison’s liberty-defending principle.
Some will complain that this reordering of liberty sources will further divide the nation. But we have always been divided into camps: loyal colonialists versus revolutionaries, Federalists and Anti-Federalists, free states against slave states, liberal versus conservative. Factions arose early and persist, validating Madison’s call for strong federal and state governments as necessary to mitigate the risks of governments large and small. Failing to value state constitutional rights removes one path to protecting liberty, thus destroying the liberty-protecting benefit of dual sovereignty. Views on which liberties to value will differ among the states, but this diversity and debate is a benefit, not a bug.
The ultimate liberty is the right to be left alone, and Dobbs established a clear mandate for state courts to define that right under their state constitutions. This is an opportunity for states to abandon their flawed lockstep doctrines, reassert themselves as the primary guarantors of individual liberty, and restore the state–federal balance of power in this area of the law. Justice Louis Brandeis described the states as laboratories of democracy, Justice William J. Brennan Jr. endorsed the independent protective force of state constitutions, and Dobbs reminds us to embrace those insights.
Brandon V. Stracener is an attorney in private practice and a senior research fellow at the California Constitution Center.
David A. Carrillo is the executive director of the California Constitution Center at Berkeley Law. Brandon V. Stracener is an attorney in private practice and a senior research fellow at the California Constitution Center.
New York State’s high court has yet to define the scope of the right to shelter, which comes from a Depression-era amendment to the state constitution.
A footnote in a recent opinion could signal a new method for analyzing state constitutional claims.