Tags: Coronavirus | Donald Trump | Supreme Court | brandeis | trump | liebmann | california

States Are Laboratories of Democracy, But Must Also Define It

louis d brandeis school of law on the campus of the university of louisville in kentucky
Louis D. Brandeis School of Law on the campus of the University of Louisville on October 29, 2013 in Louisville, Kentucky. (Photo by Andy Lyons/Getty Images)

By Saturday, 02 May 2020 03:53 PM Current | Bio | Archive

Our Founders realized that the best way to form a long, lasting Union was to give the power for self-governance and determination to the states.

Thus, the federal government is paramount only with regard to its enumerated powers as set forth in the Constitution and as legislated by Congress within that authority.

Our individual states and territories have the commonality of a federal association with the uniqueness of separate and distinct state identifications.

Different and unique states comprise the United States.

That is our greatest strength. What is good for California is not necessarily good for Kentucky and vice versa.

The ability for states to run their own affairs including economies, healthcare, education, social services, business, etc. at the state and local levels makes them more accountable to the people they serve.

With the recent and ongoing challenges of the current pandemic we are seeing more clearly than ever before the need for states and local governments to best respond and care for their constituents — as they see fit.

President Trump knows full well that holding and binding all states and territories to federal standards of response is untenable — and unconstitutional.

Now more than ever it's important to honor the Constitution in a national crisis rather than abandon it.

Associate Justice of the Supreme Court Louis Brandeis was the first to popularize the phrase that states "are the laboratories of democracy."

Why did he make that declaration?

Justice Brandeis in the 1932 case of New State Ice Co v. Liebmann, 285 U.S. 262, found that "a 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."

This is exactly what we are witnessing today, by seeing firsthand the way the president has deferred to the states and territories to care for their own populations; with the federal government ready, willing, and able to add its support as necessary, and do so within the bounds of their authority and responsibility.

Some governors, mayors, and other elected officials have pushed back on their duty and responsibilities to their constituents. They claim in one breath that it's the federal government's obligation to set forth "national policies," policies binding on all states and territories and in the next demanding "home rule" to determine their own destinies free from federal edict or oversight.

Justice Brandeis and the president agree that our states, because of their diversity, are the best place for novel solutions to complex problems. One state finds a better way of doing something for their own population that can serve as a model for dealing with similar challenges experienced by other states.

Dividing and conquering can be a smart strategy.

It's better to have 50 states working separately and together at a time of crisis as opposed to sitting back waiting for "one size fits all" solutions dictated from a federal government that is surely not tailored to the individuality of the states comprising our Union.


We are seeing states like New York, New Jersey, and Connecticut banding together to form alliances to regionally deal with the challenges of coronavirus.

This is a good thing. It is also smart governance.

The president has given great latitude and deference to states and local governments.

As a result we are seeing a much better response.

The federal government has responded to the needs of states and local governments as a compliment to them versus as being a burden on them.

Our government works best when it works as intended.

It's too easy to pass the buck or avoid responsibility.

Thus, President Trump is living up to his oath as president to "preserve, protect, and defend the Constitution of the United States," especially so when he rightfully expects states to run their own affairs.

There is only so much the federal government can and should do for states in normal times and during a time of emergency. A duty owed to all is a duty owed to no one person.

This finding is also known as, "The Public Duty Doctrine."

It is a doctrine defining the duty that governments have to the public. (See Eklund v. Trost, 151 P. 3d 870, and Skiles v. Rawlins, 468 F. Supp. 2d 1311). 

There cannot be a police officer and/or fireman in every home to prevent a crime or a fire.

Government has a duty to the public at large, not necessarily to each individual person for the purpose of shielding them from harm or to be held liable for harm to them.

The same can be said for the federal government’s duty to all 50 states and territories.

There is only so much the federal government can and should do, and be responsible for.

Now is the time for all states and territories to come to the aid of their constituents.

They need to try to solve their own problems in their own ways.

And, in doing so they will become the laboratory of democracy Justice Brandeis described. Not only will they be helping their own, but they will be helping the nation as well get through this time of crisis and be better for it.

Bradley Blakeman was a member of President George W. Bush's senior White House staff from 2001 to 2004. He is also a frequent contributor to Fox News and Fox Business Channel. He currently is a Principal with the 1600group.com a consulting company. Read Bradley Blakeman's Reports — More Here.

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They need to try to solve their own problems in their own ways. And, in doing so they will become the laboratory of democracy Justice Brandeis described.
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Saturday, 02 May 2020 03:53 PM
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