Voting with your feet is no substitute for constitutional rights.

• Author: Laycock, Douglas
• Position: Twenty-Seventh Annual National Federalist Society Student Symposium

1. THE DOWNSIDE OF VOTING WITH YOUR FEET

   The organizers of this Symposium (1) gave each panel a brief summary of the panel's intended topic. I want to take a part of that summary as the subject of my commentary: "It is a benefit of Federalism that people can vote with their feet and migrate to communities that share their values as well as enable their liberty. But does pervasive judicial review threaten to destroy local identity by homogenizing community norms?" (2) There follows some more in that vein, some illustrative examples, and finally the provocative question whether the Constitution really requires a separation of God and football. (3) I will return to God and football, but I principally want to address this idea of voting with your feet. The idea is common in the federalism literature, (4) but it has always troubled me. (5)

   The idea especially troubles me when voting with your feet is offered as an argument for less vigorous enforcement of constitutional rights. (6) At least some of the commentators who have written articles praising the right to vote with your feet have also shared my view that this right is insufficient to protect other constitutional rights. Thus, Richard Epstein argues that federalism is indispensable because it protects the right to vote with your feet, but that the protection is not enough. "[T]he institution of federalism, without the rigorous enforcement of substantive individual rights, will not be equal to the formidable task before it." (7)

   There are times when voting with your feet is an acceptable second-best solution, and it is a good thing that we are always free to leave a jurisdiction if we have to. (8) But voting with your feet is often a last resort in response to illegitimate treatment. The task is to distinguish those cases in which a person leaves the jurisdiction in response to illegitimate pressures from those cases in which a person leaves the jurisdiction in response to legitimate policy disagreements. That question reduces to a debate over which rights to constitutionalize and over the appropriate scope of each constitutional right. We have great debates about those questions. Americans disagree about which rights to interpret narrowly and which to interpret broadly. But we will do best if we debate these questions on their merits. Unless one takes Professor Lino Graglia's view that enforcing constitutional rights through judicial review is a bad idea, (9) the debate over the appropriate scope of rights cannot be resolved by references to voting with your feet.

   "Voting with your feet" is a sugarcoated way to describe what happens when dissenters are driven out of the community. Runaway slaves were voting with their feet. (10) Darfurians fleeing to Chad are voting with their feet. (11) Ethnic cleansing is a way of encouraging people to vote with their feet. I assume that the people who wrote our panel description did not have in mind any of these examples. But the difference between these examples and what our organizers were likely thinking about does not turn on the definition of voting with your feet. The relevant differences are in the rights being violated and in the magnitude of the deprivations that led people to vote with their feet. To distinguish between acceptable and unacceptable pressure to vote with your feet, we have to consider specific rights and the range of possible deprivations.

   Federalism is a prominent feature of our Constitution. (12) Federalism means that there will be differences from state to state. (13) Within states, we rely heavily on local government, and that reliance means that there will be differences from town to town or between rural and urban areas. (14)

   But countervailing ideas are also prominent in our Constitution. We teach our children that we are "one Nation ... indivisible," (15) and the idea of indivisibility also appears in the Supreme Court's interpretation of the Constitution. (16) An American is free to go anywhere in this country as a visitor or as a new permanent resident. (17) More immediately to the point, a person born in the United States is a citizen of the state where he resides. (18) And he may reside in any state he chooses. When I moved from Texas to Michigan, Michigan could not reject me. Potential employers had a choice; no one had to hire me. But the state did not have a choice. Michigan had to accept me as a citizen, and it could not discriminate against me because I was new to the state. (19)

   Even before I established residence in Michigan, when I was just visiting and exploring opportunities, Michigan could not discriminate against me. During my visits, Michigan owed me all the privileges and immunities of a citizen of Michigan. (20) That guarantee is more nuanced than it appears and requires some interpretation, but it is nevertheless a sweeping guarantee of interstate equality. (21)

   Once in Michigan, I obviously cannot insist that the state do everything to my liking, so that I will feel no pressure to leave. I have no more rights than any other citizen in Michigan, which is why on most issues, we vote. (22) On some issues, we create and enforce individual rights, (23) and the argument is about which issues should be the subject of individual rights and which issues should be left up to votes. (24)

   The individual rights that we have created are important, and some of their applications are controversial, but they are not especially numerous. (25) It is absurd to suggest that judicial review is as pervasive as the panel description implied. (26) Every state has thousands of statutes; even small towns have hundreds. Most of these statutes have never been challenged, and most of them would be upheld without serious argument if they were. Vast areas of social, economic, and regulatory policy are left to the political process with little or no serious judicial review.

   Individual rights are concentrated in a few areas that tend to be unusually important to individuals--speech, religion, fair procedure, equality of treatment, and the core of property ownership. (27) These rights give each individual an essential, if limited, sphere of autonomous control over his life. Most of these rights are also important to the functioning of a democratic government. (28) Ownership of guns, (29) to take a currently controversial example, fits in at least the first of these categories; it is undoubtedly a right that is intensely important to many Americans, however abhorrent it may be to many other Americans. With respect to these individual rights, the Constitution carries the strategy of decentralization beyond federalism. It decentralizes choice beyond states or localities and down to individuals.

   By protecting individuals with respect to the things that they are likely to feel most strongly about, we reduce the occasions on which they have to vote with their feet. That is a good thing. Voting with your feet is expensive. (30) People move in this country for many reasons--for education, for jobs, for family, for climate--and they should not have these choices limited simply because some towns are hostile or discriminatory towards their religion, political views, race, speech, sexual orientation, or lack of citizenship. There are many reasons why people choose a place of residence, and it can be costly, both to individuals and to society, to subordinate all those reasons to the question whether some jurisdiction will respect the basic rights that people care about most. Requiring people to move to preserve their basic rights can separate families. It can require people to leave jobs. It is an obstacle to trade. Forcing people to choose their residence on grounds of political acceptability is bad for the economy, if nothing else.

   But this is what is implicitly required when the option to vote with your feet is offered as a reason not to enforce constitutional rights. The argument is that we do not have to enforce rights judicially, because if people think a right that is really important to them is being violated, they can just leave. The argument assumes that people can, or should, focus on just one reason for choosing a place of residence and subordinate all other reasons to that one reason. It is that argument that I reject.

   Enforceable federal rights take basic questions of fair treatment out of the decision about where to live so that people can act on all of their many other reasons for deciding where to live. Federal constitutional rights protect individuals from pressure to move in search of fair treatment. Constitutional rights enforceable everywhere are essential to the right to travel and to live throughout the country (31) and are therefore essential to national unity. Abolitionists and Republicans could not safely travel in the South in the 1850s. (32) They could vote with their feet and stay out of the South, (33) and most of them did, but that was not a good thing.

   Constitutional rights, including the controversial ones, are equally essential to mobility today. Professor Alan Brownstein, who is an observant Jew teaching at the University of California at Davis School of Law, has said that the school prayer decisions made it possible for families like his to leave the Jewish community in Brooklyn and move anywhere they wanted, including to relatively small and relatively rural communities like Davis. (34) And the examples could be multiplied. A generation of African-Americans left the South before the civil rights movement in search of equal treatment in the North and West. (35) It is good that they were free to do that, but they should never have had to do that.

   The vote-with-your-feet ideology undermines national unity in another way as well: It encourages Americans...