Lockstepping’s critics have increasingly found their voice in the courts. State constitutions are unique documents, with their own histories, texts, and procedures.1 But often, state courts import federal interpretations of the U.S. Constitution when interpreting similar provisions in state constitutions, a phenomenon known as “‘lockstep’ interpretation.”2 State courts have turned to federal law when interpreting state constitutional provisions related to search and seizure, due process, right to counsel, and more.3 And this lockstepping, long prevalent, has persisted despite vehement critique.4 But some state courts are shaking off this complacency, voicing a strong repudiation of lockstepping.
Lockstepping’s strongest critics call the practice “lazy”5 and an abdication of judicial responsibility and state sovereignty.6 Methodologically, lockstepping is unsound. Interpretations of the U.S. Constitution do not “‘fix’ the meaning of . . . state constitution[s].”7 “The U.S. Supreme Court has unequivocally endorsed the notion that state constitutions, as interpreted by state courts, may secure rights ‘more expansive than those conferred by the Federal Constitution.’”8 State constitutional provisions were “written and adopted by different people at a different time for a different sovereign” than their federal comparators.9 These provisions were implemented for unique purposes.10 To apply federal interpretations to state constitutions is to accept a fiction that erases the unique history and intent behind state constitutional protections.11 State judges acting in federal lockstep are failing to act on their distinct positionalities.12
And practically, lockstepping shrinks rights. When state constitutions are interpreted independently, that means parties have two layers of rights protection: the U.S. Constitution and their state constitution.13 But lockstepping collapses state constitutions under one federal meaning.14 “[L]aboratories of democracy” are lost.15 Avenues to state-based rights disappear,16 and federal rights doctrine is no longer challenged to expand by innovative state jurisprudence.17 “[A]bove ninety-five percent of cases that are filed in this country are filed in state courts.”18 Eroding state courts’ authority and rendering their opinions superfluous in the face of federal doctrine has the potential to eviscerate rights protections.
Classic lockstepping criticisms like these have made their way into recent state supreme court decisions in Pennsylvania, Hawaii, and Ohio. In its 2024 decision, Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services,19 the Supreme Court of Pennsylvania delivered an assertive rebuke of lockstepping.20 Plaintiffs challenged state limits that restricted public insurance coverage of abortion.21 Under Pennsylvania law, state funds could not be used for an abortion, except to save the life of the mother or if the pregnancy was the result of rape or incest.22 Plaintiffs argued that these restrictions violated the equality guarantees in the Pennsylvania Constitution.23 But Allegheny came down after Dobbs v. Jackson Women’s Health Organization,24 in which the Supreme Court held that abortion restrictions do not violate the U.S. Constitution’s Equal Protection Clause.25 Plus, the Supreme Court of Pennsylvania had already upheld limits on public funding for abortion in 1985,26 relying largely on federal case law.27 If Pennsylvania courts were to continue their long history of lockstepping,28 Allegheny should have mirrored Dobbs and found the state’s abortion restrictions constitutional.29
Instead, the Pennsylvania Supreme Court asserted its authority — and obligation — to thoroughly and independently interpret its state constitution: “A conclusion that our Constitution’s equal protection provisions are to be read in lockstep with the federal Equal Protection Clause runs the risk of rendering our own constitutional text, history, traditions, and jurisprudence ‘a mere row of shadows.’”30 The Pennsylvania Supreme Court cited academic critiques of lockstepping31 and attacked its own earlier lockstepping methodology, claiming that its previous pro-lockstepping decision ignored the text and history of the Pennsylvania Constitution, thus “skipp[ing] over” critical analytical steps.32 The Allegheny court concluded that a lockstepping approach “suffers from incomplete reasoning and a disregard of our unique constitutional provisions in favor of blind (and incomplete) adherence to federal principles of Equal Protection.”33
Joining Pennsylvania, the Supreme Court of Hawaii has recently rejected lockstepping. In a 2025 decision, the court declined to interpret the Hawaiian Establishment Clause in lockstep with the federal equivalent.34 Plaintiffs challenged the state’s refusal to remove a deed restriction that limited property to “Church purposes only.”35 The Hawaiian court considered history and the framers’ intent to find that the deed restriction violated Hawaii’s Establishment Clause.36 After employing this independent analysis, the court explicitly rejected a lockstep methodology.37 The Supreme Court of Hawaii reaffirmed its independent authority, stating: “[W]e must decide the best course for our state under the Hawai’i Constitution.”38 “It would be discordant” to find federal interpretations controlling, given that the Hawaiian Constitution and U.S. Constitution were adopted almost 200 years apart.39
And there is Ohio. Considering a past opinion that followed a lockstep methodology, the Supreme Court of Ohio called the decision “ill-considered.”40 It criticized the earlier opinion for failing to consider differences in text, purpose, and history between the Ohio Constitution and the U.S. Constitution.41 Earlier lockstepping case law “didn’t provide any analysis to support its conclusion that our state Constitution’s open courts guarantee provides no greater (or different) rights than the federal Constitution.”42 It was time for Ohio to reaffirm its independent interpretive authority: “[W]e are not bound to walk in lockstep with the federal courts when it comes to our interpretation of the Ohio Constitution.”43
These decisions are loud. Pennsylvania, Hawaii, Ohio, and other state courts44 are not just rejecting lockstepping, but they are doing so explicitly and with force. State courts have resisted lockstepping before.45 In a 1970s movement commonly referred to as New Judicial Federalism, state court judges were encouraged to rely on state constitutions to identify rights guarantees.46 While the wave of New Judicial Federalism certainly increased interest in state constitutional law,47 and there were discrete areas of rights innovation in the states,48 many empirical studies showed only limited change.49 State courts generally retained their appetite for lockstepping.50 But the conviction expressed in decisions like those surveyed here illustrates that this sentiment may be changing. At least some states have had enough of the lockstepping charade. As Pennsylvania Supreme Court Justice Wecht explained in a 2025 concurrence, it is:
[a] mistaken assumption that our Constitution is nothing more than a dependent derivative of the federal Constitution, a weak, me-too sidekick that mindlessly trudges along in lockstep wherever the United States Supreme Court’s interpretation of the federal Constitution goes. It is high time that we insist that it is no such thing.51
Justice Wecht issued a clear message: Lockstepped interpretation is “erroneous.”52 State constitutions deserve to be given their full due.53
In a way, this could be a period of state constitutional rebirth. State constitutions have long languished as mere mirrors of federal law,54 but some judges have had enough. This revolution should not be overstated — some state courts still look to federal jurisprudence for guidance55 — but episodes of explicit lockstepping rejection appear notable against a historical trend of adherence to federal standards.56
Why exactly this shift is now happening remains unclear, as critiques of lockstepping have been longstanding.57 But the erosion of rights protections in federal constitutional jurisprudence is likely part of the story.58 As the Supreme Court increasingly rejects the protection of rights under the U.S. Constitution,59 attention has been driven toward bolstering protections in state constitutions.60 Advocates may see state constitutions as an additional layer of protection, and state courts might identify their role as necessary gap-fillers. A similar phenomenon contributed to the rise of New Judicial Federalism.61 When the Burger Court replaced the Warren Court, advocates turned to the states as a new avenue for rights protection.62 Whatever the cause, there is no doubt that interest in state constitutional law is on the rise.63
We may be entering a new antilockstepping era, where at least some state courts are forcefully rejecting federal lockstepping and charting their own paths forward. With this rising profile of independent state constitutional jurisprudence, understanding the unique features and histories of state constitutions is critically important.
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This Developments in the Law issue responds to the renewed independence of and attention to state constitutions. Each Chapter explores unanswered questions in state constitutional jurisprudence by synthesizing across states, identifying examples, summarizing history, and contrasting state constitutional law with federal law.
Chapter I, The “History and Tradition” of Substantive Due Process in State Constitutions,64 responds directly to shifts in federal jurisprudence. Acknowledging that substantive due process has become increasingly disfavored in federal case law, the Chapter argues that states have their own unique substantive due process traditions that may justify preserving the doctrine at the state level. Looking to historic analog cases involving vested rights, partial legislation, and arbitrary mandates, the Chapter identifies how state constitutional law has long interpreted “due process” to require more than just process. Due process has long imposed substantive limitations on the power of the state. Understanding this history and case law puts federal substantive due process doctrine in perspective, while also painting a compelling case against lockstepping in this context.
Chapter II, Enforcing State Constitutions Through Constitutional Torts,65provides a similar examination of state constitutions in the face of federal obstacles. The Chapter explains the erosion of constitutional torts at the federal level and identifies unique features of state constitutions that justify preserving constitutional torts at the state level. The Chapter proceeds by developing a taxonomy for understanding when courts should identify state constitutional torts, emphasizing considerations including existing remedial schemes, legislature intent, constitutionality, immunities, and positive rights.
Where Chapters I and II identify new opportunities to resist lockstepping, Chapter III serves as a warning. The Decline and Fall of the State Executive Council66 tracks the long-overlooked history of executive councils. At the Founding, those multimember bodies within the executive branch served as advisors, watchdogs, and power checks. Every state once had one, and no two councils were wholly alike. But over the years, Chapter III argues, states turned away from their mosaic institutions, instead marching in lockstep to remove their state executive councils to be more like the federal sovereign. Chapter III laments the loss of these institutions as internal checks on unitary executive power. It identifies the important roles executive councils played in state governments, the federal trends that led to their downfall, and the role of the modern state executive council in New Hampshire, its final true refuge. The Chapter concludes that reinvigorated executive councils might yet remedy the ills that plague modern executive branches at both the state and federal levels.
While Chapters I through III explore the lockstepping dynamics of states and the federal government, Chapter IV considers a different power dynamic: the relationship between states and localities. Home Rule Reinforcement: Constitutional Local Autonomy Guarantees67 explores constitutional clauses, known as local autonomy guarantees (LAGs), that build upon home rule’s prolocal reallocation of power by giving state judges interpretive instructions. The Chapter examines the historical origins of LAGs, provides the first-ever typology of these provisions, and evaluates the effectiveness of each type. Ultimately, the Chapter concludes that though LAGs have made real progress in solidifying the affirmative powers of localities, the rise of express preemption and continued judicial deference to state control has limited the impact of these clauses. In this current era of excited attention toward state constitutions as solutions to federal problems, Chapter IV reminds readers of the central role state constitutions play in local government.
These Chapters explore the understudied and often undervalued field of state constitutional law. By examining issues that make state constitutions unique, whether that be their history, texts, purposes, or problems, this Developments in the Law issue highlights the distinct nature of state constitutions. Critiquing a lockstepping approach in its own court, the Ohio Supreme Court explained, “By lockstepping, this court ignored the plain language of our state Constitution and its unique history and tradition and hooked our wagon to the United States Supreme Court, come what may.”68 Perhaps it’s time to unhook the wagon and explore what independent strength lies behind state constitutions.