Laboratories of Democracy? Brandeis, Federalism, and Scientific Management

Although Louis Brandeis is rightly regarded as a champion offederalism, this article suggests that his famous depictionof the American states as "laboratories" of democracy in facthas little to do with federalism and in fad rests on an understandingof public policy inimical to federal diversity. More specifically,it argues that Brandeis's choice of metaphor largely reflectshis hope for scientifically based public policy, which in turnreflected the influence of Scientific Management upon his thought.The article concludes that abandoning Brandeis's metaphor wouldbe useful in rethinking the relations among states in the diffusionof innovations.     

The Past and Future of the New Judicial Federalism

This article argues that the new judicial federalism, the increasedreliance by state judges on state declarations of rights tosecure rights unavailable under the U.S. Constitution, representsnot a return to an earlier federalism but rather something new.Although the basis for a state civil liberties jurisprudencehad long existed, the "discovery’ of state constitutionalguarantees did not occur until the Warren Court pioneered anapproach to civil liberties that state courts could emulate.This "discovery" has led to only intermittent reliance on stateguarantees. Nonetheless, it is unlikely that state judges willreturn to the total deference to federal rulings in civil libertiescases that characterized preceding decades.     

Constitutional Theories and Constitutional Rights: Federalist Considerations

This article examines the contemporary controversy over constitutionalinterpretation and the differing understandings of constitutionalrights that underlie it. We first consider the character andbasis for interpretivism, that is, a jurisprudence that delineatesrights by reference to the intent of the founders and to theconstitutional text. Next, we review the non-interpretivistalternative, focusing on Ronald Dworkin's influential accountof constitutional rights. We conclude that despite its strengths,Dworkin's position does justice neither to the constitutionaltext nor to the connection between structure and rights in theUnited States Constitution. Finally, considering constitutionaltheory from the broader perspective of state constitutionalism,we conclude that its insights are limited to the U.S. Constitutionand offer some suggestions for a more adequate constitutionaltheory.