As the 2016 elections draw near, prospective Republican candidates for president have been invariably coming under heavy fire from the media. Presidential prospects have been asked their opinions on a number of important topics, among them if they agree with the theory of evolution as believed by non-scientists in the media and Democrats (but I repeat myself); if they told a mean joke 40 years ago about a fellow schoolmate, thereby inflicting a micro-aggression that sent the victim’s life into a spiral of despair and agony; or if they believe in exceptions to abortion in cases such as rape or incest (it’s funny how those who believe in abortion are never asked to defend the rule; Republicans are instead always asked to defend the exceptions).
When Republicans attempt to explain their politics without the media’s filter, the results are usually not much better. While endeavoring to explain their stance on federalism, an increasing number of Republicans describe their approach as letting states function as “laboratories of democracy.”
Mitt Romney liberally employed this phrase in 2012, hoping to deflect criticism of the seeming inconsistency regarding why he established a government-run health-care system as governor of Massachusetts but campaigned on repealing Obamacare. Sen.Ted Cruz and former Florida Gov. Jeb Bush, both recent converts to the “laboratories” approach to federalism, told audiences at the Conservative Political Action Conference this spring that states should be able to decide whether they want to legalize marijuana within their borders. As Cruz explained to Sean Hannity, “I actually think this is a great embodiment of what Supreme Court Justice Louis Brandeis called ‘the laboratories of democracy.’ If the citizens of Colorado decide they want to go down that road, that’s their prerogative. I personally don’t agree with it, but that’s their right.”
Note to Conservatives: Brandeis Is Trouble
As Cruz noted, Brandeis originally coined the “laboratories of democracy” phrase. But why this didn’t instantly ring loud alarm bells for Cruz is an open question. Brandeis, who was appointed to the Supreme Court by Woodrow Wilson in 1916 and served until 1939, was an ardent Progressive and rejected the constitutionalism of the American founders. He disdained any ideas of unchanging, permanent truths and instead, following John Dewey’s theory of experimentalism, posited that the scientific method should be the central idea that animates public policy.
Dewey’s conception of experimentalism looked at things in terms of their usefulness for human life; controlled experiments could yield what he termed “warranted assertions,” which provide useful data to solve concrete problems but do not constitute absolute knowledge. As a result, the formerly self-evident truth that all men are created equal was not available to human knowledge and, according to Dewey, really never had been.
Brandeis’s politics, of which his jurisprudence was a subset, is best described as follows: “The reformer’s role was to guide the forces of social experimentation and thus to direct change along the lines of evolution rather than revolution.” Because Brandeis believed in slow processes of evolutionary change rather than the quick, violent change of revolution, he subscribed to the social Darwinism of the Left, of which Lester Frank Ward was an early proponent.
Leftist social Darwinists differed from their brethren on the Right in that they contended government must drive social and economic progress. Right social Darwinists such as William Graham Sumner reasoned that, taking a laissez faire approach, the forces of evolution would work without government interference; in other words, using a phrase often attributed to Charles Darwin but actually coined by Herbert Spencer, the survival of the fittest would work itself out through an uncompromising process dictated by nature. This is the intellectual and philosophical foundations through which one should view Brandeis’s often invoked but rarely scrutinized phrase.
States Should Experiment On the Populace
Brandeis’s states as laboratories expression is from his dissent in New State Ice Co. v. Liebmann (1932), a case involving the constitutionality of an Oklahoma statute that required those wanting to manufacture, sell, or commercially distribute ice to obtain a license from the state’s Corporation Commission. The case was decided 7-2 in favor of Liebmann, who attempted to sell ice within the Oklahoma City limits without a license. The Court argued that the statute in question infringed upon Liebmann’s economic liberty and therefore his right to due process under the Fourteenth Amendment.
In dissent, Brandeis argued that new economic conditions, which the Founders had not anticipated, necessitated that “[t]here must be power in the States and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs.” Although one could argue that Brandeis here limits experimentation only to social and economic needs, recall that in the next year Franklin Roosevelt and his brain trust, which included advisors Adolph Berle and Rexford Tugwell (the latter argued for a nationally planned economy and abolishing private business), used those means to transform the American regime. As FDR argued in the Commonwealth Club Address, statesmanship in the industrial age meant redefining “rights in terms of a changing and growing social order.”
Thus Brandeis took for granted the government’s role in using science to help emancipate man from the social and economic ills he formerly could not escape. As he argued, “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.” As G. Alan Tarr has noted, although Brandeis’s formula seems to side with the liberty of individuals to act using their various unequal talents and skills, “over the longer term, the tendency would be toward policy uniformity, as states emulated the successful policies of sister states.”
Brandeis’s ultimate goal was repudiating the diversity among the states as the result of state experimentation, which the federal government would then likely adopt and enforce nationwide. National planning by experts in the bureaucracy who would rely on the scientific method divorced from natural law or natural rights, in his thinking, displaced consent of the governed. It goes without saying that this completely repudiates what Republicans and conservatives should stand for.
One not need accept the foregoing entirely when invoking Brandei’s dictum. But constantly appealing to his famous phrase distorts how we think about federalism and the ground of federalism. Republicans and conservatives should scrap it and stick with something more amenable to the principles and practices of the founders.