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. State-based 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.”

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