The Myth of the Laboratories of Democracy

67 Pages Posted: 11 Aug 2021 Last revised: 21 Oct 2021

See all articles by Charles Tyler

Charles Tyler

George Washington University - Law School

Heather Gerken

Yale University - Law School

Date Written: August 9, 2021

Abstract

A classic constitutional parable teaches that our federal system of government allows the American states to function as “laboratories of democracy.” This tale has been passed down from generation to generation, often to justify constitutional protections for state autonomy from the federal government. But scholars have failed to explain how state governments man-age to overcome numerous impediments to experimentation, including re-source scarcity, free-rider problems, and misaligned incentives.

This Article maintains that the laboratories account is missing a proper appreciation for the coordinated networks of third-party organizations (such as interest groups, activists, and funders) that often fuel policy innovation. These groups are the real laboratories of democracy today, as they perform the lion’s share of tasks necessary to enact new policies; they create incentives that motivate elected officials to support their preferred policies; and they mobilize the power of the federal government to change the land-scape against which state experimentation occurs. If our federal system of government seeks to encourage policy experimentation, this insight has several implications for legal doctrine. At a high level of generality, courts should endeavor to create ground rules for regulating competition between political networks, rather than continuing futile efforts to protect state autonomy. The Article concludes by sketching the outlines of this approach in several areas of legal doctrine, including federal preemption of state law, conditional spending, and the anticommandeering principle.

Suggested Citation

Tyler, Charles and Gerken, Heather, The Myth of the Laboratories of Democracy (August 9, 2021). GWU Legal Studies Research Paper No. 2021-46, GWU Law School Public Law Research Paper No. 2021-46, Available at SSRN: https://ssrn.com/abstract=3902092 or http://dx.doi.org/10.2139/ssrn.3902092

Charles Tyler (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Heather Gerken

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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