State Law Gives Litigators Extra Tools to Counter Originalism

Originalism is an increasingly dominant mode of constitutional interpretation in federal courts, reshaping doctrines ranging from gun regulation to reproductive rights. But state courts are not bound to follow that path. Indeed, distinctive features of judicial federalism, state constitutional law, and state court practice offer state judges options for charting a different interpretive course.

In our recently released guide for litigators — Countering Originalism — my co-authors and I describe a range of ways lawyers can mobilize these unique features of state courts to challenge the originalist arguments they face in their cases. A sampling follows.

The Case for State Constitutional Independence

One of the most powerful tools available in state court is the argument against lockstepping with federal precedent. Under principles of judicial federalism, the U.S. Constitution sets a floor, not a ceiling, for individual rights, and state constitutions may provide additional or more expansive protections. And, state courts are not required to follow federal courts’ interpretive approaches — like originalism — when construing analogous state constitutional provisions.

Anti-lockstepping arguments can resonate with state judges because they speak directly to the significance of state constitutional history, state-specific precedent, and the judiciary’s role in safeguarding local constitutional traditions.

In practice, an argument like this would proceed in two steps. First, litigants would urge courts to depart from federal precedent under existing state departure rules. These rules may expressly permit courts to consider policy concerns or practical consequences that originalist analysis typically rejects. Second, litigants would advocate for a non-originalist approach grounded in state law to account for the fact that a court must still choose how to interpret its state constitution even if it declines to lockstep.

Many states have formal or informal doctrines governing when their courts should deviate from federal constitutional interpretations. Others have developed a long-standing practice of independent state constitutional interpretation even in the absence of explicit departure rules. Some have also recently questioned earlier decisions of theirs that engaged in unreasoned lockstepping. Together, these traditions provide fertile ground for arguments that federal originalism should not dictate state constitutional outcomes.

Even in the absence of directly on-point precedent, litigants may invoke distinctive state constitutional histories or cultural commitments. For example, a Hawaii Supreme Court justice recently cited the state’s “spirit of Aloha” to justify departing from the U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v.Bruen, which compromised firearms regulation around the country.

Finally, the relative newness of many state constitutions and amendments can undermine arguments for lockstepping. Many state constitutions are far younger than the federal Constitution, and many provisions have no meaningful federal analogue. New provisions are also added regularly through amendment. As judges may well recognize, tethering these provisions to jurisprudence developed around centuries-old federal texts can be analytically incoherent.

Primacy and State-First Constitutional Interpretation

In some states, doctrinal commitments to state constitutional primacy require courts to decide state constitutional claims before addressing federal ones. These primacy rules are often accompanied by commitments to decide state constitutional questions primarily using state precedent, turning to federal precedent only to the extent that the court finds it persuasive. These doctrines strengthen the case for state courts to interpret their constitutions independent of the federal Constitution. And they increase the likelihood that courts will analyze state constitutional text, history, and values on their own terms — rather than defaulting to federal originalist analysis. In primacy jurisdictions, litigants can combine state-first arguments with anti-lockstepping principles to urge courts to adopt non-originalist approaches.

Originalism Is Not the Default in State Constitutional Law

Even where courts reject lockstepping in theory, litigants may still face arguments that originalism should govern as a default interpretive method — for example, because it was used in one or more prior cases.

Litigants can respond by showing that originalism is not the settled or universal method of constitutional interpretation in their state. Some judges, like Wisconsin Supreme Court Justice Rebecca Dallet, have even noted that “an earlier court’s choice of an interpretive methodology like originalism does not bind later courts to use that same methodology.”

State-Specific Critiques of Originalism as a Method

Countering Originalism details many critiques of originalism as a method. Some are available only in state courts or for claims involving state constitutions.

For example, proponents of originalism often contend that judges must be tightly constrained because they lack democratic accountability and that originalism provides that constraint. But 38 states use elections as part of their system for selecting high court judges. Most also impose reappointment requirements and, with only the exception of Rhode Island, all state supreme courts impose some form of term limit or retirement age. These accountability mechanisms complicate claims that state courts need the medicine originalism claims to offer.

Similarly, the relative ease of amending state constitutions weakens originalism’s appeal. If the public disagrees with a state court’s constitutional interpretation, amendment is often a realistic option. That reduces the need for rigid constraints on judicial interpretation.

Finally, originalist evidence is frequently thin or unreliable in the state context. Historical records may be sparse, incomplete, or nonexistent for key provisions, making originalism not only normatively contestable but practically unworkable.

Taken together, these doctrinal and institutional features make state courts a critical — and often more hospitable — venue for challenging originalist arguments.

To learn more about the full array of strategies available to respond to originalism in litigation around the country, be sure to consult Countering Originalism.

Chihiro Isozaki is a counsel in the Democracy Program at the Brennan Center for Justice.

Suggested Citations: Chihiro Isozaki, State Law Gives Litigators Extra Tools to Counter Originalism, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 24, 2026), https://statecourtreport.org/our-work/analysis-opinion/state-law-gives-litigators-extra-tools-counter-originalism