BRANDEIS'S VIEWS ON STATES' RIGHTS, AND ICE-MAKING, HAVE NEW RELEVANCE

Louis Brandeis wrote one of his most enduring opinions in a case about ice.
The facts of The New State Ice Company v. Liebmann, a dispute between the
state of Oklahoma and a renegade ice manufacturer, have long been
forgotten. But Brandeis's dissent contains one of the most famous
formulations in American law: that the states should be free to serve as
"laboratories" of democracy.

Brandeis was not battling about ice - he was fighting for progressive
government. New State Ice was decided in 1932, during the Great Depression.
Herbert Hoover, insisting prosperity was "just around the corner," was
resisting calls for action, and victims were looking to the states.
Brandeis's dissent was his way of saying states had the right, perhaps the
duty, to step in.

Brandeis's liberal argument for state power was quickly pushed aside, due
to historical happenstance. After Franklin Roosevelt was elected, the
federal government became the nation's engine for change. "States' rights"
then became a conservative rallying cry, notably in the civil rights era.
But with conservatives again controlling all three branches of the federal
government, liberals are turning to the states to accomplish things they
once would have pushed for in Washington - in areas like gay marriage and
corporate misbehavior. As they rethink state and federal authority, they
should look on Brandeis as a pioneer, and on his New State Ice dissent as
an intellectual template.

Louis Brandeis was born in Louisville in 1856, the son of a Czech-Jewish
grain merchant. After graduating first in his class at Harvard Law School,
he became a crusading lawyer in Boston, championing workers' rights and
opposing monopolies.

Brandeis believed, above all, that the law had to keep pace with society.
Defending an Oregon maximum-hour law, he submitted what became known as the
"Brandeis Brief," two pages of law and more than 100 pages of facts about
the harm from long workdays. It won the case, and revolutionized American
law by focusing courts on the real-world consequences of their rulings.

In 1916, Brandeis was named to the Supreme Court by Woodrow Wilson, a
startling addition to a tribunal known for placidly endorsing the status
quo. He fought, often in lonely dissent, for a more forward-looking
approach to the law. His dissents often anticipated later rulings, as in
the one in a 1928 case about privacy and wiretaps, whose view the court
adopted four decades later.

New State Ice concerned an ice maker who violated Oklahoma's Ice Act by
operating without state permission. Oklahoma believed ice -scarce then, and
critical to preserving food - was a public concern, like electricity or
railroads. The conservative court majority, skeptical of all economic
regulation, ruled that Mr. Liebmann had a right to make ice.

Brandeis dissented partly as a matter of judicial deference. He noted that
the Oklahoma Legislature believed unregulated ice-making would lead to
"unnecessary duplication of facilities," high prices and poor service. As
long as it was not acting arbitrarily, he argued, it should be able to
impose its rules, whether or not the court deemed them wise.

Brandeis went on to make two more innovative points. True to his
progressive values, he argued that government had an affirmative duty to
seek out new approaches to the problems that confront society. The
Depression, he wrote, had caused "an emergency more serious than war."
Since "economic and social sciences are largely uncharted seas," he argued,
the rational way to advance society was through "experimentation," the same
"process of trial and error" as in the physical sciences.

It was also evident to Brandeis that these experiments were best done at
the state level. Even when the federal government is locked in inaction, "a
single courageous state" can "if its citizens choose, serve as a
laboratory." It is "one of the happy incidents of the federal system," he
noted, that when a state embarks on "novel social and economic
experiments," it can do so "without risk to the rest of the country."

The federal government is showing Hoover-style inaction today on some of
the most critical social and economic issues of the day, and the states are
stepping forward. In corporate America, the New York attorney general,
Eliot Spitzer, has uncovered widespread malfeasance, which federal
regulators were unwilling or unable to uncover. While the federal
government has dug in its heels on gay rights, 14 states and the District
of Columbia prohibit discrimination against gays, and Massachusetts is
leading the way on gay marriage.

Conservatives, who long railed against federal power, understand how the
states' rights dynamic has changed. After Massachusetts' gay marriage
ruling, conservative activists demanded a federal marriage standard.
Republicans in Congress now regularly try to insert pre-emption provisions,
like the one in the new antispam e-mail law, that invalidate stronger state
protections.

Liberals, too, are making the switch. They are not only having policies
adopted in the states, they are starting to invoke states' rights. The day
of the gay marriage decision, Representative Barney Frank of Massachusetts
squared off with Kenneth Starr, the onetime Clinton independent counsel, on
ABC's "Nightline." After making the gay rights argument, Representative
Frank turned to federalism. What basis, he asked, was there for taking
marriage away from the states and having "the federal government forbid
Massachusetts from making its own decision?" Somewhere, Justice Brandeis
was smiling.