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CRIMINAL JUSTICE | SPRING 2025
“State courts cannot rest when they have af-
forded their citizens the full protections of
the federal Constitution. State constitutions,
too, are a font of individual liberties, their protec-
tions often extending beyond those required by the
Supreme Court’s interpretation of federal law. The
legal revolution which has brought federal law to the
fore must not be allowed to inhibit the independent
protective force of state law—for without it, the full
realization of our liberties cannot be guaranteed.” Wil-
liam J. Brennan Jr., State Constitutions and the Protec-
tion of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977).
Every state has a constitution. This begs the ques-
tion: Why aren’t more lawyers litigating constitutional
claims under their state constitutions?
Justice Brennan gave this potential answer: “I
suppose it was only natural that when during the
1960’s our rights and liberties were in the process of
becoming increasingly federalized, state courts saw
no reason to consider what protections, if any, were
secured by state constitutions.” Id. In perhaps more
relatable terms, think of blockbuster decisions of the
Warren Court such as Brown v. Board of Education,
Baker v. Carr, Miranda v. Arizona, Mapp v. Ohio, and
Gideon v. Wainwright. The US Supreme Court was on
a roll and state supreme courts (and state constitu-
tions) were left in the dust.
It wasn’t always this way. The 1776 Virginia Declara-
tion of Rights formed the basis for the Bill of Rights
that was made part of the US Constitution in 1791.
More than a century before Gideon v. Wainwright,
372 U.S. 225 (1963), the Wisconsin Supreme Court
held that the state constitution guaranteed accused
indigents the right to counsel. Carpenter v. Dane
Cnty., 9 Wis. 249 (1859). And 38 years before Mapp v.
HON. RICHARD GINKOWSKI is the municipal judge in
Pleasant Prairie, Wisconsin, past president of the Wisconsin
Municipal Judges Assn., and a member of the executive
committee of the National Conference of Specialized
Court Judges and the Criminal Justice editorial board.
He can be reached at dick.ginkowski@gmail.com.
Your State Has a
Constitution. Why
Not Use It?
BY HON. RICHARD GINKOWSKI
Published in Criminal Justice, Volume 40, Number 1, Spring 2025. © 2025 by
the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database orretrieval system
without the express written consent of the American Bar Association.
