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10 Ga. L. Rev. 533 (1975-1976)
Of Laboratories and Liberties: State Court Protection of Political and Civil Rights

handle is hein.journals/geolr10 and id is 535 raw text is: NOTES
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.'
When Justice Brandeis penned the above words more than four decades
ago, he was referring to the efforts of state legislatures to deal with the
problems of the industrial revolution.2 Today the words capture the spirit
of a new kind of state experimentation reflected not in the statute books,
but in the pages of state appellate court opinions. Taking up the activist3
I New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
2 Justice Brandeis was among the frequent dissenters during the Allgeyer-Lochner-Adair-
Coppage era when the Supreme Court regularly used the due process clauses of the fifth and
fourteenth amendments to invalidate social and economic legislation. See Coppage v. Kan-
sas, 236 U.S. 1 (1915) (statute banning yellow dog employment contracts held violative of
due process clause); Adair v. United States, 208 U.S. 161 (1908) (statute banning yellow
dog contracts on interstate railroads held violative of due process clause); Lochner v. New
York, 198 U.S. 45 (1905) (statute regulating maximum hours of working time of bakery
employees held violative of due process clause); Allgeyer v. Louisiana, 165 U.S. 578 (1897)
(insurance-regulating statute held violative of the due process clause). Judicial activism of
this type has since been discredited. Lincoln Federal Labor Union v. Northwestern Iron &
Metal Co., 335 U.S. 525, 536 (1949). See.generally McCloskey, Economic Due Process and
the Supreme Court: An Exhumation and Reburial, 1962 Sup. CT. REv. 34.
1 Judicial activism describes an approach to the business of judging. It imports a willing-
ness to give active review to decisions and conduct of the legislative and executive branches
of the government. The theoretical antithesis of judici&l activism is judicial restraint, a more
deferential approach to actions taken by other departments of government. See Manistee
Bank & Trust Co. v. McGowan, 394 Mich. 655, 666-67, 232 N.W.2d 636, 640 (1975); A.
BICKEL, THE LEAST DANGEROUS BRANCH (1962); Shaman, The Rule of Reasonableness in
Constitutional Adjudication: Toward the End of Irresponsible Judicial Review and the
Establishment of a Viable Theory of the Equal Protection Clause, 2 HASTINGS CONsT. L.Q.
153 (1975).
Activism is a substantively neutral concept in the sense that it may describe decisions
striking down conservative or liberal, progressive or regressive legislation. In the
years preceding the New Deal era, the Supreme Court invalidated numerous social and
economic statutes as violative of the due process guarantee; but that brand of activism is now
discredited. See note 2 supra.
The activism studied in this Note is civil liberties activism in which noneconomic legisla-
tion is invalidated in the name of individual rights. The doctrinal distinction between modern
civil liberties activism and the old substantive due process decisions in the area of economic
regulation may not be as precise as some would have it, but for purposes of this Note the
distinction is recognized, if only in order to limit the scope of the activism examined here.
Many state courts, however, have not accepted this distinction and continue to invalidate

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