In dissent, Brandeis argued that new economic conditions, which the Founders had not anticipated, necessitated that “[t]here must be power in the States and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs.” Although one could argue that Brandeis here limits experimentation only to social and economic needs, recall that in the next year Franklin Roosevelt and his brain trust, which included advisors Adolph Berle and Rexford Tugwell (the latter argued for a nationally planned economy and abolishing private business), used those means to transform the American regime. As FDR argued in the Commonwealth Club Address, statesmanship in the industrial age meant redefining “rights in terms of a changing and growing social order.”

Thus Brandeis took for granted the government’s role in using science to help emancipate man from the social and economic ills he formerly could not escape. As he argued, “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.” As G. Alan Tarr has noted, although Brandeis’s formula seems to side with the liberty of individuals to act using their various unequal talents and skills, “over the longer term, the tendency would be toward policy uniformity, as states emulated the successful policies of sister states.”

Brandeis’s ultimate goal was repudiating the diversity among the states as the result of state experimentation, which the federal government would then likely adopt and enforce nationwide.