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

DOI10.1177/1065912909340893
Published date01 March 2011
Date01 March 2011
Subject MatterArticles
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.

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