Laboratories of democracy or the Balkanization of rights?
According to Justice Louis Brandeis, writing in a dissent to New State Ice Co. v. Liebmann, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country,” and the courts must exercise caution in stifling experimentation, even under the powers granted to the federal government to regulate and to guarantee due process.
The case itself dealt with a dispute between sellers of ice in Oklahoma regarding the requirement to have the appropriate license for such sales, but the broader point that concerned Brandeis—and that has come to be formulated in the saying that the states are the laboratories of democracy—was that each state must be free to try its own ideas, the benefit being found in the opportunity for observers to note the successes and failures that would be washed out by a single national policy issued from the central government.
This is in good association with the view of the framers of our federal constitution who believed that the states offered an essential check on unitary power—thus the Second Amendment, among other aspects of the Constitution and its amending Bill of Rights, a protection of the people’s right to be armed in case we in the states ever needed to defend freedom from its enemies, wherever they might be found. The anti-federalists were even more extreme in this notion, wanting the individual laboratories to preserve their ability to act without bothering to ask a central authority and certainly without having any meaningful obligation to it.
But we do not live in that world today. We have the same constitution, modified somewhat to expand the protection of some basic rights and to clarify the mechanisms of the federal government, and at least some remnant of the basic concept of individual rights stays in our legal thinking, but we no longer live in an almost entirely rural country with a population of not quite four million that was the United States in 1790. Nor do we inhabit Brandeis’s America of about 125 million residents, of whom 43.9 percent were rural. At present, more than 330 million of us call America home, four-fifths living in urban areas. The state where I live, Arkansas, has a bit more than three million residents, more than three quarters of the entire nation’s original total.
How does this matter? In terms of population numbers, counties are better in keeping with what the framers and Justice Brandeis had in mind for experimental laboratories in that their leadership is more accessible to the people upon whom the tests will be conducted and the consequences can be more quickly determined with less noise from the extraneous variables of large populations.
There is, however, a fundamental problem with seeing the states as defenders of liberty, the lack of imagination lying with the framers and their opponents, rather than with the progressive Brandeis.
Consider a program that I grew up with in 1970s and 80s North Carolina: The Andy Griffith Show. For me, as a number of similar shows may be for other people, this represented small-town America—or, as I have come to understand, a version of the same that was the ideal for many. It was a community without blacks, Latinos, Jews, or Muslims. Neither homosexuality nor any even slight deviation from gender norms ever occurred to any of the characters. The only person to drink alcohol compliantly locked himself in jail to sleep off his drunkenness, and Ernest T. Bass, the rock-throwing barbarian, could be managed with enough affability on the part of Sheriff Taylor. And everyone was Christian.
This was for me a case of life and art running in parallel, and both illustrate the flaw in this notion of the states as laboratories. In fact, local all too often equates to conformist, to repressive, to limiting. Inbreeding is as much a threat to ideas as to gene pools, and a small town’s philosophical, religious, and political family tree is ever at risk of having its branches twist in about itself.
This situation is even worse when we acknowledge the reality of the states at present, a reality in which, for example, you may have whatever gun you like or whatever abortion you prefer, but increasingly not both in the same state. This Balkanization of rights and the demand that we all follow the playbook of our local political team—The Massachusetts Donkeys or the Montana Elephants, say—are in direct opposition to the framers’ expectations. That, in itself, would not be so bad if we had a strong replacement for the role of institutional protector of liberty, but we are lacking that in too many ways.
As a long-time supporter of secular society, of abortion rights, of GSRM (Gender, Sexual, and Romantic Minority) rights, and for some twenty years now of gun rights, there was a time when I figured that I could rely on the Supreme Court to defend all of the above if no other level or branch of government would do so, but that time is gone. Gun rights, to be sure, are enjoying current favor from the high court, but what can be done to the Roe decision can in the future be done to Heller, McDonald, and Bruen. A state given permission to limit abortions to the first fifteen weeks of pregnancy—or to ban them altogether—inspires other states to pursue approval for banning semiautomatic firearms or for banning carry outside the home. For the many who will insist that gun rights are found in the Constitution, while abortion is not, I remind them that the Constitution in practical terms is what the courts interpret it to be and what the executive branch will enforce.
Brandeis’s caution regarding the idea of states as laboratories is as important as the idea of those laboratories. He points out that the court can strike down a state action if the justices find it to be “arbitrary, capricious, or unreasonable.” What we need is states—and counties and cities and so forth—that are willing to experiment under the gaze of the federal government that will act to defend individual rights, that will keep the experiment from destroying those dwellers of the small community who do not or cannot go along.
We get that happy arrangement only by participating at all these levels of society as voters, as protesters, as advocates—in other words, as citizens.