Evaluating the Constitutionality of Legislative Enactments

When one imagines a judge deciding whether a statute violates the U.S. 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 Professor Katie Steefel demonstrates in her article “Unconstitutional But Not Unconstitutional Enough,” forthcoming the Cornell Law Review—this approach is far from universal. 

In her article, Professor Steefel presents research showing that is forty states and the District of Columbia, there is case law stating 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. The beyond-a-reasonable-doubt standard―the standard a jury applies to determine whether someone is guilty of a crime―is the highest in the judicial system. Under the beyond-a-reasonable-doubt standard, a judge who is convinced that a statute is unconstitutional but is not convinced of its unconstitutionality beyond a reasonable doubt would be required to uphold the unconstitutional statute. Her forthcoming article in the Cornell Law Review argues that state courts’ use of the beyond-a-reasonable-doubt standard is wrong as a matter of both policy and doctrine. 

“During my years of experience practicing in Colorado state court (both as a former appellate public defender and former law clerk at the Colorado Supreme Court), I encountered on dozens of occasions the beyond-the-reasonable-doubt standard that I discuss in this article. It provides a policy and doctrinal framework for litigants and courts to critically consider the continued use of the beyond-a-reasonable-doubt standard when evaluating the constitutionality of legislative enactments,” says Steefel.

Using a Colorado appellate case as a case study, Steefel demonstrates how the standard can be outcome-determinative. She then argues that under the reverse-Erie doctrine, which dictates when state courts 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. Steefel states that “Constitutional questions are litigated every day in state courts, and it’s important to pay attention to how those questions are being decided.” 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. 

Steefel reflects that, while the U.S. Supreme Court and the federal courts get a lot of attention, “for many people, their experience with courts is through the state court system. For example, most criminal prosecutions occur in state courts. Constitutional questions are routinely litigated in criminal cases and the deprivation of someone’s liberty is often at stake.” Steefel hopes that her article will draw light to this overlooked but consequential standard of review, and that courts nationwide will consider whether change is warranted.

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