I. 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. …