Laboratories of Experimentation [No. 86]
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Laboratories of Experimentation [No. 86]

Justice Brandeis talked about the virtues
of laboratories of experimentation. What he was referring to when he said that
in the early 1900’s was laboratories of policy making experimentation, so letting state legislatures
try one thing in one state, and another state legislature try another thing in another state,
let the results come in and decide which policy-making initiatives worked best. Well, in American history we have a lot of
instances of laboratories of experimentation. And from 1776 to 1787 you have a laboratory
of constitution writing. Over time you realize what works and what
doesn’t. So that, that experimentation period isn’t
just 1776 to 1787. It goes all the way forward to the present. The two ways to think about it in constitutional
law that I think are helpful, one, the states could be laboratories of drafting a constitution
with this guarantee or that guarantee, free speech, free exercise, um women’s right to
vote. That was another one that the states initiated
and the federal government eventually adopted and ratified. But another way in which they could be laboratories
of experimentation is they could experiment with the role of the state courts in interpreting
state constitutions. So today we have great debates about the proper
role of courts in construing constitutions. We have originalism, pragmatism, living constitutionalism. And, no one seems to finally be able to win
this debate. We have quite a diversity of viewpoints about
it. The states can perform the same function with
respect to that debate. So state courts, one state court might try
a very originalist approach to interpreting its constitution. Another state court may try a very pragmatist
approach to interpreting its constitution. And that can be very valuable, both as an
experiment for other states, and eventually it can be valuable for the U.S. Supreme Court
in deciding exactly how to construe the U.S. Constitution. So, to pull it all together, you can have
laboratories of experimentation in authoring constitutional provisions, and you can have
laboratories of experimentation in how to interpret those various guarantees.

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