Under America’s federal system, “a single courageous state may, if its citizens choose, serve as a laboratory” and conduct “social and economic experiments without risk to the rest of the country.” Even though he was on the losing side, Brandeis’ opinion would be remembered for casting the states as “laboratories of democracy.”
Inherent in that view is the possibility some state experiments will go wrong; even wildly wrong, as many believe is happening today amid an intensifying culture war.
Red states are enacting measures restricting what can be taught in schools — with Florida’s “don’t say gay” law and Virginia’s executive order banning the teaching of critical race theory among them — and reducing access to voting in the wake of former President Donald Trump’s lies about widespread fraud in the 2020 election. And, last week, Oklahoma, Kentucky and Florida put in place new restrictions on abortion that appear to violate the landmark Supreme Court decision Roe v. Wade.
“In red states, it’s open season on women’s rights,” wrote Jill Filipovic. “Several Democratic-dominated states, on the other hand, are taking proactive steps to ensure abortion access. In Maryland, a new law means that trained medical professionals other than doctors will be able to legally perform abortions in the state.”Four years before the Oklahoma ice decision, Justice Brandeis invoked the right to privacy in another dissenting opinion with long-lasting implications. Wiretapping someone’s phone without a warrant violates the Fourth Amendment, Brandeis contended. The framers of the Constitution “conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”
The “right to be let alone” became the basis for the Supreme Court’s 1973 ruling in favor of abortion rights, which now is under assault.
In the Washington Post, Paul Waldman wrote “when the history of how American women lost their reproductive rights is…
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