Part II Rights Guarantees under State Constitutions: the New Judicial Federalism, 7 Lockstepping State Constitutional Rights with Federal Constitutional Law

Abstract

This chapter discusses the practice — adopted by a number of state courts — of stating that state constitutional rights provisions will be interpreted identically to, or in “lockstep” with, similar or identical federal constitutional rights provision. State courts do this in a variety of ways, ranging from cases where they do not seem to acknowledge the possible difference between state and federal rights protections; to case-by-case adoption of federal constitutional interpretations; to “prospective lockstepping” where they announce that in the future the state and federal rights provisions will be interpreted identically or according to some other similar formulation. The chapter gives examples of these different approaches, as well as variations on them. It includes a specific focus on the wide range of state constitutional equality provisions, which, according to many state courts, are to be interpreted the same way as the federal Equal Protection Clause. These various forms of prospective lockstepping are criticized, on the grounds that they cannot actually represent “holdings” and are therefore not binding on future courts.