Cornell University

Article

Unconstitutional But Not Unconstitutional Enough

Katherine Steefel

Incoming Associate Professor of Law, University of Kansas School of Law (Fall 2026). 

I am grateful to Alan Chen, Kevin M. Clermont, Nancy Leong, Seth Packrone, Judge Roberto Ramírez, and the participants of the University of Denver Sturm College of Law 2025 Summer Scholarship Workshop for their helpful comments and feedback. This Article benefited from excellent research and citation support from Claire Johnson, Avery Landt, Aili Miyake, Lauren Rowell, and Jeremy Werner. Finally, I would like to thank the editors of the Cornell Law Review for their careful editing.

30 Jul 2026

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 this Article demonstrates in an original fifty-state survey—this approach is far from universal. In forty-four states and the District of Columbia, there is case law instead requiring that a party arguing 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 scholarship, this Article demonstrates through a case study how the beyond-a-reasonable-doubt standard of proof can be outcome determinative. In a Colorado appellate case, a judge found a statute under which the defendant was convicted to be unconstitutionally vague but not unconstitutionally vague beyond a reasonable doubt. Thus, the judge determined it was appropriate to uphold the defendant’s felony convictions.

This Article argues that state courts’ use of the beyond-a-reasonable-doubt standard of proof to determine whether a legislative enactment violates the U.S. Constitution is wrong as a matter of policy and doctrine. States apply the wrong substantive federal law when they apply a heightened standard of proof to federal constitutional claims. Under the reverse-Erie doctrine, which dictates when state courts must apply federal law, state courts’ application of the 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.

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