Unconstitutional But Not Unconstitutional Enough

Abstract

When one imagines a judge deciding whether a statute violates the constitution, the natural question that comes to mind is whether the statute violates the constitutional doctrine raised. And that is precisely what the U.S. Supreme Court considers. But—as this Article demonstrates in an original fifty-state survey—this approach is far from universal. In forty states and the District of Columbia, courts instead require that a party arguing that a legislative enactment violates the U.S. Constitution prove not only that the enactment is unconstitutional, but also that it is unconstitutional beyond a reasonable doubt. 

Shining a light on a practice that has received little attention in legal academia, this Article argues that state courts' use of the beyond-a-reasonable-doubt standard is wrong as a matter of both policy and doctrine. Using a Colorado appellate case as a case study, this Article demonstrates how the standard can be outcome-determinative. The Article then argues that under the reverse-Erie doctrine, which dictates when state actors must apply federal law, state courts' continued use of the beyond-a-reasonable-doubt standard violates the Supremacy Clause. State courts play a critical—and often unchecked—role in adjudicating federal constitutional claims. When state courts apply the wrong constitutional law, as occurs with state courts' use of the beyond-a-reasonable-doubt standard, unconstitutional statutes remain on the books and individual constitutional rights remain unprotected.

Keywords: Constitutional Rights, U.S. Constitution, State Courts, Federalism, Erie Doctrine, Reverse-Erie