On Tyranny, 2023
Remember when we were talking about how blue states could be laboratories of democracy, a concept first developed by brilliant Supreme Court Justice Louis Brandeis in a dissenting opinion in the 1932 case New State Ice Co. v Liebmann, where he argued that states should have the power to enact their own laws and policies without interference from the federal government. Brandeis wrote that “To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. 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. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But, in the exercise of this high power, we must be ever on our guard lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.” He believed that this decentralized approach would allow for innovation and experimentation, with successful policies eventually being adopted by other states or at the federal level.
The concept of laboratories of democracy allows for greater flexibility and responsiveness to local needs and preferences, and can lead to more effective and efficient governance. Among the best-known examples:
Before the passage of the Affordable Care Act at the federal level in 2010, several states had already experimented with their own healthcare reform initiatives, including Massachusetts, which implemented a comprehensive health reform law in 2006 that served as a model for Obamacare’s individual mandate and health insurance exchanges.
Several states have implemented their own environmental regulations and policies, such as renewable energy standards and carbon pricing schemes. For example, California has implemented a cap-and-trade program to reduce greenhouse gas emissions, while Hawaii has set a goal of using 100% renewable energy by 2045.
Before the Supreme Court legalized marriage equality nationwide (2015), several states had already legalized it at the state level. Massachusetts became the first state to legalize same-sex marriage in 2004, followed by several other states including California, Connecticut, Iowa, and Vermont.
In the wake of mass shootings and gun violence, several states have implemented their own gun control measures, including California which has some of the strictest gun laws in the country (background checks for all gun sales and a ban on assault weapons). Other states, such as Colorado and Connecticut, have also passed gun control measures in response to mass shootings.
Several states have legalized, to one extent or another, marijuana, despite the fact that it is still illegal under federal law. Colorado and Washington were the first states to legalize recreational marijuana in 2012, followed by several other states including California, Oregon, and Massachusetts.
Since 2009, Republicans and conservative Democrats have prevented the pathetic federal minimum wage from rising with inflation and greater productivity, triggering a massive and societally dangerous increase in inequality, so several states and cities have implemented their own minimum wage increases. For example, California, Massachusetts, New York, Washington, Connecticut, Oregon, New Jersey and Illinois have all passed laws to gradually raise the minimum wage to a living wage. Cities like Seattle ($16.69 ), San Francisco ($16.32), Minneapolis ($15.50), Santa Fe ($15.50), NYC ($15.00), L.A. ($15.00), Chicago ($15.00), San Diego ($15.00) and others have gone even further.
Conservatives, of course, are not taking this lying down. Republicans and their conservative allies among Democrats are working to overturn these laws— their extremist Supreme Court putting the muscle behind their reactionary agenda. The overturning of Roe v Wade is the most obvious example, but far from the only one. On Friday, Ed Kilgore shared some thoughts on how power changes the GOP when local governments veer from strict conservative orthodoxies. He wrote that “As recently as 2015, Bloomberg columnist Francis Wilkinson was able to say, without fear of contradiction, ‘If you are a Republican, decentralization of power is a cornerstone of your party and political philosophy. After all, Republican demonization of Washington and the federal government stems in part from a belief that government is too large and power too centralized.’ More recently, Republicans have made it clear that they favor exactly as much decentralization as is necessary to force their policy preferences on the maximum number of people. Most notably, after decades of complaining about judicial tyranny over abortion policy, Republicans are racing to impose state-legislative tyranny over those same policies— when they aren’t calling for federal abortion bans to preempt blue-state governments. But state-level Republicans are moving aggressively to end local control of law enforcement where it might contradict their own law-and-order policies, as CNN’s Ronald Brownstein observes:
From Florida and Mississippi to Georgia, Texas and Missouri, an array of red states are taking aggressive new steps to seize authority over local prosecutors, city policing policies, or both. These range from Georgia legislation that would establish a new statewide commission to discipline or remove local prosecutors, to a Texas bill allowing the state to take control of prosecuting election fraud cases, to moves by Florida Republican Gov. Ron DeSantis and Missouri Republican Attorney General Andrew Bailey to dismiss from office elected county prosecutors who are Democrats, and a Mississippi bill that would allow a state takeover of policing in the capital city of Jackson.
Republicans believe in local government— by Republicans— not by Democrats living in cities filled with people of color who, they feel, “cannot be trusted with decisions to determine or enforce penalties for criminal offenses. It doesn’t seem to matter that, generally speaking, the local prosecutors Republican state officials are trying to remove or usurp have been democratically elected or that the police officers deemed insufficiently repressive reported to democratically elected mayors or county commissions.” And the Republican Party-sanctioned tyranny goes beyond just law and order policies to “everything from minimum wage and family leave laws to environmental regulations, mask requirements during the COVID-19 pandemic, and even recycling policies for plastic bags… [D]ecentralization only works for Republicans when it works for the interests they represent— including businesses chafing under local regulations and conservative suburbanites upset about alleged crime spikes in the cities near them… Basically, for today’s GOP, the ends justifies the means, so don’t expect respect for any level of government that skews ‘wrong’ on conservative priorities.”
One more thing. The laboratories of democracy idea can also be turned on its head into a laboratory of fascism. This month, while Minnesota’s mainstream governor, Tim Walz, was signing a bill to provide free breakfasts and lunches to all school children (as California, Colorado and Maine have already done), Arkansas’ reactionary MAGA governor was signing a bill rolling back protections on child labor. Republican legislators in South Carolina, Texas, Kentucky, and Arkansas have introduced bills to permit the state government to execute women who get abortions. Alabama Republicans are lining up behind a copycat bill written by fascist Rep Ernest Yarbrough.
Other states that have been veering towards fascism have been implementing different approaches to degrading public education, primarily promoting charter schools, religious schools, school vouchers and anti-teacher union policies. Florida, of course, is the example everyone is thinking about right now, but right wing legislatures and governors in Louisiana, Indiana, Wisconsin (2011), Michigan (2016), Arizona (2017) and Tennessee have all moved aggressively to undermine public education (causing, in some cases, a backlash against Republicans in swing states like Michigan, Wisconsin and even Arizona, where Republicans lost statewide elections and lost control of legislative chambers).
One of the greatest examples of a laboratory of democracy experiment catching on took place in a state that, disgracefully, just passed the first law outlawing the abortion pill, backward Wyoming. But Wyoming wasn't always the fascist hellhole it has become. In 1869, Wyoming’s territorial legislature passed a law granting women the right to vote. It was signed into law by anti-Confederate Gov. John Campbell on December 10. and women started voting and serving on juries the following year.