Rights Variation within a Federalist System: Understanding the Importance of Mobility

• DOI: 10.1177/1065912909340893
• Published date: 01 March 2011
• Date: 01 March 2011
• Author: Leslie P. Francis,John G. Francis
• Subject Matter: Articles

Political Research Quarterly

64(1) 82 –93

© 2011 University of Utah

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DOI: 10.1177/1065912909340893

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Rights Variation within

a Federalist System: Understanding

the Importance of Mobility

John G. Francis1 and Leslie P. Francis1

Abstract

Cosmopolitanism at the international level—the recognition of an international human rights regime—has been much

defended of late. Little attention has been paid, however, to the federalist analogue: should there be insistence on a

national rights regime? Or should variation in the recognition of rights be tolerated at the subnational level, as a nec-

essary concession to moral disagreement, as an effort to contain problematic experiments, or as a way to generate

progress about rights? This article argues that subnational variation in the recognition of rights represents a second-best

solution to the problem of deep moral disagreement about rights. However, federalism provides a second-best solution

only on the condition that citizens are able to move from one subnational jurisdiction to another. To the extent that

citizens are able to move to rights regimes that are more favorable to them, intranational variation in the recognition

of rights may have advantages over international variation, where national borders may pose barriers to migration.

However, in the United States, despite the privileges and immunities of national citizenship, there remain impressive

legal barriers to such mobility in the case of contested rights. Given these barriers, federalism as it exists in the United

States today does not fully realize the advantages of a second-best solution to deep moral disagreements about rights.

Keywords

federalism, rights, second best, mobility

Federalist political unions and human rights regimes

frequently coexist but not always easily. Federalism cel-

ebrates formal recognition of a measured degree of auton-

omy for subnational political divisions. With this autonomy

may come different understandings of the rights to be rec-

ognized, who holds them, what they mean, and how they

should be implemented. Slavery was the most extreme

example in the United States, but with the Supreme Court

perhaps poised to overrule Roe v. Wade, commentators

both decry and celebrate the possibility that some states

might prohibit abortion entirely, others limit it somewhat,

and still others regard it principally as a difficult medical

decision to be worked out between women and their health

care providers.1 Such rights variation poses perennial prob-

lems for federalist arrangements: should the goal be to

move toward a common legal understanding of rights, on

the basis that a nation cannot be half slave and half free?

Or is the risk of universalization that hoped-for rights will

be universally unprotected, that the nation will be all slave

rather than all free?

This article examines mobility as a second-best strategy

in confronting variation in regimes of legal rights within

federalist systems. Federalism has many justifications,

including experimentation with different rights regimes;

these justifications, we argue, should be coupled with the

possibility of exit strategies for people who find themselves

in circumstances where rights that are important to them

cannot be enjoyed. Although change may occur when dis-

sidents remain and exercise voice from within, mobility

is important as a protection for individuals located in

regimes they do not share, as a way for federalism to allow

differing rights regimes to be tested and newer rights to

emerge, and as a potential bargaining tool for enduring

minorities. This evolution may be what is occurring with

respect to same-sex marriage in the United States today,

as some states adopt civil unions or marriage, and one,

California, remains as of this writing in flux about whether

Proposition 8 was a permissible constitutional amendment

as well as about the status of same-sex marriages

1University of Utah

Corresponding Author:

John G. Francis, Professor of Political Science, University of Utah; john.

francis@utah.edu. Leslie P. Francis, Professor of Philosophy and Alfred

C. Emery Professor of Law, University of Utah

E-mail: francisl@law.utah.edu.