Academic journal article Political Research Quarterly

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

Academic journal article Political Research Quarterly

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

Article excerpt

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 necessary 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 celebrates formal recognition of a measured degree of autonomy for subnational political divisions. With this autonomy may come different understandings of the rights to be recognized, 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 problems 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 dissidents 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 established before its passage.2 Nonetheless, with respect to apparently emerging or contested rights-our examples here are abortion, end-of-life decision making, and samesex marriage, all three deeply important to the life chances of individuals and difficult to enjoy without protection in the state of residence-mobility is recognized imperfectly at best in the contemporary United States. …

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