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Laboratories of Experimentation

How are the states laboratories of experimentation when it comes to Constitutional Law? Justice Brandeis famously talked about the virtues of states as laboratories of experimentation in the early 1900's on questions of public policy. Now, Judge Jeffrey Sutton argues that the states serve as laboratories of experimentation for federal law both in authoring constitutional provisions, and in how to interpret those various guarantees. https://youtube.com/watch?v=Lq6uEIuy768

Transcript

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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