The U.S. Constitution acts as a minimum guarantee of certain rights upon which no law can impinge, but states are free to extend those rights further than the federal Constitution demands. When a state extends greater protections in the state constitution than the federal Constitution requires, what remedy is available for a violation of that state constitution (but not the federal Constitution)? Courts have the power to strike laws that violate a state's constitution, and if the law violates the federal Constitution it can be challenged through a 42 U.S.C. § 1983 action, but if the state constitution grants greater protections than the federal Constitution, is there a federal remedy available?

Seemingly, if there is no federal violation, there can be no federal remedy, and the courts can impose only state relief, possibly under the state tort claims act, and strike the law as a violation of the state constitution. To illustrate, the state of Washington enacted a statute authorizing a program of collecting DNA samples from convicted felons. While this law does not violate the U.S. Constitution's Fourth Amendment guarantee against unlawful searches (State v. Surge, 122 Wash. App. 448, 94 P.3d 345 (2004)), the state's constitution provides for greater protection than the federal. State v. Jones, 45 P.3d 1062 (Wash. 2002). In this example, Washington courts have not yet ruled on the validity of the law under the state constitution. However, the mechanism for challenging the validity of such a statute is a challenge under the state constitution and, depending upon state law, a tort claim. If there is no violation of federal law or constitutional provision, there is no federal remedy.