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30 Val. U. L. Rev. 475 (1995-1996)
The States-as-Laboratories Metaphor in State Constitutional Law

handle is hein.journals/valur30 and id is 505 raw text is: THE STATES-AS-LABORATORIES METAPHOR IN STATE CONSTITUTIONAL LAW JAMES A. GARDNER* I. INTRODUCTION No contemporary discussion of state constitutional law, it seems, is considered complete without some invocation of the metaphor of states-as- laboratories. We are constantly invited by judges and scholars alike to imagine state appellate judges as white-coated lab technicians, solemnly and disinterestedly conducting grave experiments involving constitutional liberties. At their best, metaphors help sharpen thinking by conjuring up vivid images to clarify difficult concepts. But the misuse of metaphors can just as easily impede sound analysis by serving up images that are attractive, but misleading. A metaphor that gets tossed around by as many different people in as many different circumstances as the states-as-laboratories metaphor surely deserves a skeptical reexamination. Accordingly, I want to use this opportunity to examine the metaphor of states as laboratories. In what sense is the metaphor apt? Is it merely descriptive? Or does it furnish some kind of justification for judicial action, and if so, of what sort? The metaphor first appeared in a 1932 dissenting opinion of Justice Brandeis: It is one of the happy incidents of the federal system, he wrote, 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.1 I begin in Part II by examining the context in which Justice Brandeis used the laboratory metaphor, and some of its limitations. Part III turns to some ways in which the image of scientific experimentation can be misleading when applied to constitutional and political analysis. Part IV then examines some recent invocations of the metaphor. I conclude that the metaphor is most often used, not entirely aptly but certainly harmlessly, to describe the federal system of government. Problems arise, however, when the metaphor is invoked not to describe, but to justify. I argue in Part IV that the metaphor has some limitedjustificatory power when invoked to support certain interpretations of the federal Constitution, but that its use to justify constructions of state constitutions by state courts is misleading and improper. . Professor of Law, Western New England College School of Law. Thanks to Gabriel Chin, Eric Gouvin and Jay Mootz for reviewing draft versions of this article. 1. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). 475

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