Splitting the Atom of False Scientism in Constitutional Law

40 Pages Posted: 23 Apr 2024

See all articles by John M. Golden

John M. Golden

University of Texas at Austin - School of Law

Sanford Levinson

University of Texas Law School

Date Written: March 15, 2024

Abstract

Metaphor can enlighten, but it can also mislead. This Article critiques two metaphors that have become powerful emblems of United States federalism: the “split[ting] the atom of sovereignty” metaphor introduced by Justice Kennedy and the “states as laboratories of democracy” metaphor attributed to Justice Brandeis. These metaphors shape legal and policy debates to this day. And therein lies the rub. We contend that, by wrapping aspects of United States federalism in a false scientism, the metaphors provide misleadingly authoritative cover for the contingent messiness of our constitutional order. The United States’ system of “dual sovereignty” is a path-dependent product of history, not a universal, immanent truth. Moreover, the “splitting the atom” metaphor makes a hash of the concept of sovereignty itself. Likewise, although states provide distinctive domains for policy trials that can approximate “field experiments,” states are generally not “laboratories” in any meaningful sense. They are commonly not well isolated from one another. Further, state governments are often neither the prime movers for relevant experiments nor the best equipped to conduct informative trials. Statebased innovation can also stray from the “of democracy” assumptions of Justice Brandeis’s vision, possibly threatening liberal democracy itself. Consequently, uncritical repetition of the “splitting the atom” and “laboratories of democracy” metaphors frequently does more harm than good. We should curtail their use and to the extent we use them, follow Justice Holmes’s injunction (prior to becoming a Justice) to wash such concepts in “cynical acid.”

Keywords: metaphor, federalism, sovereignty, laboratories of democracy, Kennedy, Brandeis, New State Ice, Holmes, Blackstone, Herzog

JEL Classification: H11, K19

Suggested Citation

Golden, John M. and Levinson, Sanford V., Splitting the Atom of False Scientism in Constitutional Law (March 15, 2024). 66 Ariz. L. Rev. 1 (2024), U of Texas Law, Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4765528

John M. Golden (Contact Author)

University of Texas at Austin - School of Law ( email )

School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

Sanford V. Levinson

University of Texas Law School ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-471-3273 (Phone)

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