For decades, critics of judicial review have argued that it inhibits the “will of the people,” as expressed through laws and regulations enacted by democratically elected officials. Thus, they argue, judicial review should be used sparingly, or perhaps even not at all.1For arguments of this type from the left, see, for example, Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (2020); Mark Tushnet, Taking the Constitution away from the Courts (1999); Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Calif. L. Rev. 1703, 1734–38 (2021); Larry D. Kramer, The Supreme Court, 2000 Term—Foreword: We the Court, 115 Harv. L. Rev. 4 (2001); Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006); and Nikolas Bowie, Assistant Professor of L., Harvard L. Sch., Testimony Before the Presidential Commission on the Supreme Court of the United States: The Contemporary Debate Over Supreme Court Reform: Origins and Perspectives (June 30, 2021) (transcript available at https://perma.cc/DC9A-M5NE). For a similar argument by a famous conservative jurist, see generally Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline (1996). These are just a few examples from a much larger literature. Similarly, some originalists argue that courts should strictly follow the original meaning of the Constitution because it was enacted by a democratic political process, which again expresses the will of the people while judicial activism does not.2See, e.g., Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999).
Both arguments implicitly assume that the political freedom of the people is best expressed through ballot box voting. We elect government officials and thereby decide what government policies we wish to live under. Under that view, judicial review must therefore be kept within strict bounds, if not eliminated entirely, to avoid infringing on democratic self-government. In this Article, I challenge that assumption and instead suggest that our political freedom is often best expressed through foot voting, rather than ballot box voting. Recognizing the power of foot voting, in turn, strengthens the case for strong judicial review in a range of areas.
People can vote with their feet through international migration, by choosing what jurisdiction to live in within a federal system, and by making decisions in the private sector, such as living in a private planned community. These three types of foot voting are rarely considered in a single integrated framework.3For a discussion on an attempt to remedy this gap in the literature, see Ilya Somin, Free to Move: Foot Voting, Migration, and Political Freedom 45—90 (2020) [hereinafter Somin, Free to Move]. But they have important commonalities, including empowering people to make political choices in ways that are often superior to conventional ballot box voting. Judicial review can help empower foot voters in a range of different ways.
Instead of a singular collective will of the people, foot voting enables individual members of the public to pursue a wide range of policy preferences.4For a related, but distinct idea, see Randy E. Barnett, We the People: Each and Every One, 123 Yale L.J. 2576 (2014). Barnett emphasizes the need to disaggregate the concept of “We the People” in order to provide more choice to individuals, see id. at 2591–99 but does not propose foot voting as a possible solution to this problem. As a result, it allows far more people to live under policies that they prefer and reduces the disadvantages faced by those with minority preferences.
In Part I of this Article, I summarize the advantages of foot voting over ballot box voting as a mode of political choice. In particular, foot voting enables individuals to make increasingly well-informed decisions that are more likely to have a decisive impact in determining the policies they live under. It also offers a wider range of choice to people with minority preferences. Part II provides a brief overview of the three types of foot voting. Part III explains how judicial review can help empower foot voting within a federal system by enforcing structural constitutional limits on the scope of federal government power.
In Part IV, I describe how judicial review can enhance foot voting in both the public and private sector by enforcing individual rights that make foot voting more feasible and effective. Finally, Part V discusses how judicial review can enhance foot voting through international migration.
The issues covered in this Article are by no means an exhaustive list of situations where judicial review can potentially facilitate foot voting. But they do represent important examples that later analyses can build on.
I do not claim foot voting should be the only goal of judicial review or even the most important. Nor do I, at least in this Article, argue that judicial intervention to protect foot voting is required by such theories of interpretation as originalism and living constitutionalism. However, foot voting is an important factor in assessing judicial review, one that is often ignored in debates over the subject. Moreover, taking account of foot voting undercuts several traditional criticisms of judicial review as undemocratic and contrary to the will of the people. To the contrary, judicial review that enhances foot voting can actually empower people to a greater extent than deference to the political process.
I. Advantages of Foot Voting Over Ballot Box Voting
Most people believe ballot box voting is the ultimate expression of political freedom. When we vote in elections, we get to decide what government policies we will live under. But ballot box voting has two serious weaknesses: Individual voters have almost no chance of affecting the outcome of an election, and for that very reason they have little incentive to make well-informed decisions. These problems can be mitigated by empowering more people to “vote with their feet.”
People can vote with their feet through international migration, by choosing what jurisdiction to live in within a federal system, and by making decisions in the private sector, such as living in a private planned community. These three types of foot voting are often considered in isolation from each other. But they have many commonalities, including as mechanisms for exercising political choice.
The odds an individual vote will make a meaningful difference are miniscule: about one in sixty million in an American presidential election, for example (though somewhat higher for those who live in “swing” states, and lower for residents of others).5Andrew Gelman, Nate Silver & Aaron Edlin, What Is the Probability that Your Vote Will Make a Difference?, 50 Econ. Inquiry 321, 323–25 (2012). For more detailed discussion of this and alternative methods of estimating the odds that a vote might be decisive, see Ilya Somin, Democracy and Political Ignorance: Why Smaller Government is Smarter 75–79 (2d ed. 2016) [hereinafter Somin, Democracy and Political Ignorance]. Effective freedom requires the ability to make a decisive choice. A person does not have meaningful religious freedom if she has only a one in sixty million chance of being able to determine which religion she wishes to practice. Similarly, a one in sixty million chance of deciding what views you are allowed to express is not meaningful freedom of speech.
What is true of freedom of speech and religion also applies to political freedom. A person with only an infinitesimal chance of affecting what kind of government policies he or she is subjected to has little, if any, genuine choice.
The insignificance of individual votes to outcomes weakens ballot box voting as a mechanism of political choice from the standpoint of multiple different theories of political freedom, including consent theory, nondomination theory, negative liberty, and positive liberty. I address each in greater detail in my book Free to Move.6Somin, Free to Move, supra note 3, at 20–30. Under virtually any theory of political freedom, it is difficult to show that people have meaningful freedom of choice when their decisions have so little chance of making a difference.
The near-powerlessness of individual voters also incentivizes them to make little or no effort to become informed about political issues. Surveys consistently show that voters are often ignorant even about basic aspects of the American political system and government policy. For example, only about one-third of the American public can even name the three branches of government: executive, legislative, and judicial.7Somin, Democracy and Political Ignorance, supra note 5, at 20. Political ignorance is both widespread and extremely difficult to overcome.8For an overview of the evidence, see id. at 17—27.
Perhaps even worse, voters also have incentives to be “rationally irrational”—to do a poor job of evaluating the political information they do have.9See Bryan Caplan, The Myth of the Rational Voter: Why Democracies Choose Bad Policies 114–15 (2007); Somin, Democracy and Political Ignorance, supra note 5, at 92-104. Because there is so little chance that any given vote will make a difference to the outcome, voters have little incentive to evaluate political information objectively and without bias. Instead, they have every reason to indulge biases and act as “political fans” cheering on their preferred party or candidates—overvaluing information that confirms their pre-existing views and discounting anything that cuts the other way.10For an overview of relevant evidence, see Somin, Democracy and Political Ignorance, supra note 5, at 92–97. Such “motivated reasoning” is both widespread and common on both sides of the political spectrum.11Id. at 95–96. For recent evidence on this point, see Peter H. Ditto, Brittany S. Liu, Cory J. Clark, Sean P. Wojcik, Eric E. Chen, Rebecca H. Grady, Jared B. Celniker & Joanne F. Zinger, At Least Bias is Bipartisan: A Meta-Analytic Comparison of Partisan Bias in Liberals and Conservatives, 14 Persps. on Psychol. Sci. 273 (2019); and Brian Guay & Christopher D. Johnson, Ideological Asymmetries and the Determinants of Politically Motivated Reasoning, Am. J. Pol. Sci. (forthcoming).
Medical ethics require doctors to get the “informed consent” of patients before treatment.12See, e.g., AMA Council on Ethical and Judicial Affairs, AMA Code of Medical Ethics’ Opinions on Informing Patients, AMA J. Ethics (July 2012), https://perma.cc/9XFF-32SM. Government policies also carry serious risks. Like medical operations, they too are often literally matters of life and death. Yet, widespread public ignorance and irrationality in evaluation of political information ensures that elections rarely secure anything approaching informed consent of the governed. Elected governments are like doctors over whom you have almost no control, mandating treatments you know little about.
An additional shortcoming of ballot box voting is that it systematically shortchanges people with minority preferences. To the extent that voting is a majoritarian institution, those in the minority for any long period of time are condemned to life under policies they do not approve of. As legal scholar Heather Gerken has emphasized, this problem can be partly mitigated by federal systems, in which minorities at the national level can, in some situations, be majorities in a given subnational jurisdiction, such as a state or local government.13See Heather K. Gerken, Dissenting by Deciding, 57 Stan. L. Rev. 1745 (2005); Heather K. Gerken, The Supreme Court 2009 Term—Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 7–10, 28–33 (2010) [hereinafter Gerken, Federalism All the Way Down]; Heather K. Gerken, A New Progressive Federalism, Democracy, Spring 2012 [hereinafter Gerken, A New Progressive Federalism], https://perma.cc/Y9KN-W8X8. But such a framework still shortchanges those who happen to reside in a subnational jurisdiction where they are not in the majority, including many who also are not part of the dominant political coalition at the national level.
Things are very different when people “vote with their feet.” Choosing what jurisdiction to live in is a decision you have real control over. That reality in turn creates strong incentives to seek out relevant information. The same applies to private-sector decisions and choices about international migration. Most people probably devote more time and effort to deciding what television set or smartphone to buy than to deciding who to vote for in any election. The reason is not that the television set is more important than who governs the country but that the decision about the television has real effects.
Furthermore, foot voting creates opportunities for those who have the misfortune of being in the minority at both the national and subnational level. No longer are they condemned to indefinite minority status. They can vote with their feet for new jurisdictions that fit their preferences better. Of course, it may be that no jurisdiction perfectly matches one’s preferred policies. But foot voting at least enables many to find a closer match than they would have otherwise. That is especially true when there are numerous, different options available.14See Somin, Free to Move, supra note 3, at 45—63, 80—90; infra Part II..
In a society as large and diverse as the United States, there often is no single integrated will of the people on many issues. Rather, there are a wide range of different views and preferences, many of which may not align neatly on a conventional right vs. left or Democratic vs. Republican axis.15For discussion of how foot voters’ preferences often cut across such distinctions, see Somin, Free to Move, supra note 3, at 146—48. Foot voting better enables the people to act on their political preferences without having to either come to a consensus or imposing the views of one group on others.
Of course, this goal cannot be perfectly achieved. Many, perhaps even most, people may never find a political jurisdiction or private-sector arrangement that fits their desires perfectly. But wide-ranging foot voting opportunities can approximate this ideal much better than ballot box voting, especially when the latter imposes a one-size-fits-all policy established by the federal government.16For more detailed discussion of this comparison, see id. at 15—63.
Some argue that the political freedom of potential foot-voting migrants conflicts with that of ballot box voting current residents of a given area. This position can be defended on the grounds that current residents have a right to exclude migrants belonging to different cultural or ethnic groups from the one that is the “true” owner of the region in question that governments generally have a right to exclude migrants on the same basis as the owner of a private house can exclude trespassers or members of a private club can exclude potential new members.17For the former theory, see, for example, Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 31—63 (1983); David Miller, Immigration: The Case for Limits, in Contemporary Debates in Applied Ethics 363, 363—75 (Andrew I. Cohen & Christopher Heath Wellman eds., 2d ed. 2014); David Miller, Strangers in Our Midst: The Political Philosophy of Immigration 60—68 (2016); and Michael Walzer, Exclusion, Injustice, and the Democratic State, Dissent, Winter 1993, at 55, 55–64. For the latter, see Christopher Heath Wellman, Freedom of Movement and the Rights to Enter and Exit, in Migration in Political Theory: The Ethics of Movement and Membership 80, 83, 87 (Sarah Fine & Lea Ypi eds., 2016). See also Christopher Heath Wellman, Immigration and Freedom of Association, 119 Ethics 109 (2008).
I do not attempt to go over these arguments here; I have responded to them in detail in previous publications.18See generally Somin, Free to Move, supra note 3, at 91–120; Ilya Somin, Migration and Self-Determination, 18 Geo. J.L. & Pub. Pol’y 805 (2020). Among other things, I point out that many such theories devolve into rationalizations for ethnic and racial discrimination, that they are at odds with the history of actual state formation, and that, if taken seriously, they have deeply illiberal implications for the scope of government power over both natives and immigrants.19See Somin, Free to Move, supra note 3, at 92—109.
Similarly, foot voting is constrained by such difficulties as moving costs and potential “races to the bottom.” These are, in some situations, genuine problems. I do not attempt to address them in detail here, but have done so in previous work, where I outline ways to reduce moving costs, as well as reasons to believe that races to the bottom and other standard downsides to foot voting are not as common and severe as often thought.20See id. at 48–63, 72–73.
II. Three Types of Foot Voting
There are three major types of foot voting: interjurisdictional choice in federal systems, foot voting in the private sector, and international migration. Each makes important contributions to political freedom and human welfare.
A. Foot Voting Under Federalism
Foot voting in a federal system is what most people think of when they hear the phrase “voting with your feet.” People can choose what state or local government to live under based on government policies such as taxation, education, law enforcement, and economic regulation. In the United States, there are fifty states and some 89,000 local governments to choose from.21Id. at 45. This offers the obvious advantage of creating numerous options for foot voters, without them having to move to a different country.
As Charles Tiebout explained in a classic 1956 article on mobility and jurisdictional choice, foot voting can provide a wide range of options to potential movers even if jurisdictions make no special effort to compete.22Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Polit. Econ. 416, 423–24 (1956). Jurisdictions that, at least initially, cater solely to the preferences of current residents, can nonetheless provide valuable opportunities to foot voters too. The policies that appeal to the former can also attract at least some of the latter. And if the preferences of current residents differ across jurisdictions in ways that are reflected in public policy, that can also create a variety of options for foot voters.
Throughout American history, foot voting between states and localities has done much to enhance freedom of choice and human welfare.23See Somin, Free to Move, supra note 3, at 46–48, for a discussion on foot voting in American history. The same has occurred in many other countries with multiple jurisdictions. Internal foot voting has often been a particularly massive boon for the poor and disadvantaged minorities.
American history dramatically illustrates how foot voting within federal systems can help enhance political freedom. The most famous example of successful foot voting in American history is, of course, westward migration to the frontier in the nineteenth century. During this period, millions moved west to settle the vast territories acquired in the 1803 Louisiana Purchase, the Mexican War of 1846–47, and other land acquisitions. Westward settlement provided expanded opportunity for millions of people, many of them poor by the standards of the time.24Id. at 47. For an overview, see generally Ray Allen Billington & Martin Ridge, Westward Expansion: A History of the American Frontier (6th ed., abr. 2001).
But the United States also has an extensive history of other forms of internal foot voting, most notably that by ethnic and religious minorities seeking more tolerant jurisdictions. The best-known case is, of course, the migration of African Americans from the South to other parts of the country from the late nineteenth century through the middle of the twentieth.
Between 1880 and 1920, over one million southern-born African Americans migrated North or West.25Somin, Free to Move, supra note 3, at 47; accord Daniel M. Johnson & Rex R. Campbell, Black Migration in America: A Social Demographic History 74—75 (George C. Myers ed. 1981). By 1920, such migrants accounted for some ten percent of the total black population of the United States, which then stood at 10.4 million.26Somin, Free to Move, supra note 3, at 47; Johnson & Campbell, supra note 25, at 77. There was an even larger black migration from South to North in the years immediately following World War II.27Somin, Free to Move, supra note 3, at 47; Johnson & Campbell, supra note 25, at 114–23. A 1917 publication of the National Association for the Advancement of Colored People (“NAACP”) explained that the migration north was “the most effective protest against Southern lynching, lawlessness, and general deviltry.”28Somin, Free to Move, supra note 3, at 47 (quoting Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 164 (2004)).
African American migration to the North is just one of many examples of oppressed minority groups using foot voting to better their lot. Other cases include the movement of the Mormons to Utah, fleeing persecution in the eastern states, and—in more modern times—the movement of gays and lesbians to cities and states with more tolerant policies.29Somin, Free to Move, supra note 3, at 47; see also Stephen Clark, Progressive Federalism? A Gay Liberationist Perspective, 66 Alb. L. Rev. 719, 719–21 (2003).
Much internal migration is driven by economic factors, such as the search for job opportunities and affordable housing. But economic migration is also often a form of political foot voting. State and local government policies on such issues as zoning, labor market regulation, and taxation have a major impact on the economic factors that incentivize internal migration.30See Somin, Free to Move, supra note 3, at 39–41.
Foot voting under federalism can work even better when state and local governments have incentives to compete for residents by offering lower taxes, cheaper housing, and better public services.31See infra Part III. But even in its absence, interjurisdictional diversity combined with freedom of movement can do much to enhance political freedom and increase opportunity.
B. Foot Voting in the Private Sector
Foot voting in the private sector is a less familiar idea than foot voting in federal systems. Nonetheless, it is an important phenomenon. Private organizations of various types offer a wide variety of services traditionally associated with regional and local governments. The most significant examples are private planned communities, such as condominiums and homeowners associations, which provide services such as environmental amenities, garbage disposal, education, and security.
As of 2019, approximately 73.9 million people live in private communities in the United States.32Cmty. Ass’ns Inst., 2019–2020 U.S. National and State Statistical Review For Community Association Data 1 (2020),https://perma.cc/F8QT-E4VM. This is up from 62 million in 2010. Id.; see also Edward Peter Stringham, Private Governance: Creating Order in Economic and Social Life 131 (2015). That amounts to some twenty-seven percent of the U.S. population.33Cmty Ass’ns Inst., supra note 32, at 1. The number of people living in private communities has risen from a mere 2.1 million in 1970 to 29.6 million in 1990, to the 2019 total of 73.9 million.34Id. That figure significantly undermines oft-heard claims that private communities are just a tool for the very wealthy to wall themselves off from the rest of society.
As a source of foot voting opportunities, private communities have important advantages over traditional state and local governments. One of the most important is lower moving costs: A given area can fit many more private communities than political jurisdictions. As a result, it is often possible to move from one to another without giving up jobs, family connections, or other opportunities. Another benefit of private communities is that the services they provide are often of better quality than those offered by the state.35For discussion and citations to relevant studies, see Somin, Free to Move, supra note 3, at 81–82.
What is true of private communities also applies to various other forms of private provision of what are traditionally considered government services. These include private school choice, private security services, and many others. Private-sector foot voting cannot fully replace government services. But much can still be done to expand its scope.36For discussion of foot voting, as well as the associated benefits and costs, see id. at 64–73.
Like foot voting between jurisdictions in a federal system, private sector foot voting is a form of political choice, as well as narrowly “economic” decision-making. The key point here is that foot voting often enables people to choose new providers for services that are conventionally produced by regional or local governments, including education, security, environmental amenities, and others.37See id.
C. Foot Voting Through International Migration
The most controversial type of foot voting is international migration. But it is also the one with the greatest benefits. The potential gains are truly enormous, far surpassing the already large advantages of domestic foot voting. The reason is that the differences in quality of government between nations are much larger than those between jurisdictions within any single country. The differences between even the best and worst governed American states are surely small compared to the difference between the United States and countries like Cuba or Zimbabwe.
Economists estimate that free migration throughout the world would roughly double world’s gross domestic product (“GDP”), with massive increases in wealth for both migrants and natives, who benefit from the increased production and innovation.38See Michael A. Clemens, Economics and Emigration: Trillion-Dollar Bills on the Sidewalk?, 25 J. Econ. Persps. 83, 84–85 (2011); see also Somin, Free to Move, supra note 3, at 67–69 (discussing this estimate in detail and addressing potential criticisms of it). The reason is that there are so many millions of people trapped in societies where—no matter how talented and hardworking they might be—oppressive and corrupt government policies make it virtually impossible for them to ever escape poverty.39See Somin, Free to Move, supra note 3, at 65, 68. Such people become vastly more productive if given the chance to live and work in a freer society with greater opportunities.40See id. at 66–69 (summarizing relevant evidence). This difference in opportunities created by divergent government policies creates massive gains from foot voting.
The potential gains go far beyond the narrowly “economic.” They encompass vast increases in human freedom and well-being of all kinds. Consider such examples as refugees fleeing racial, ethnic, and religious oppression or women escaping patriarchal societies. For millions of people, the opportunity to vote with their feet through international migration is literally a matter of life and death. For many more, it can positively impact nearly everything that makes life worth living.
For the more than one-third of the world’s population (some 3 billion people) who live under authoritarian regimes,41Freedom House, Freedom in the World 2021, at 26 (2021), https://perma.cc/B6ZT-7KKA (deriving the proportion under authoritarian regimes from the percentage of the global population depicted as “not free” in the table of country scores). foot voting through international migration is likely their only hope of exercising political freedom of any kind. Things are often only modestly better for the nearly 3.3 billion people who live in societies that Freedom House classifies as “partly free,” meaning they have very weak democratic institutions.42Id.; Freedom House, Freedom in the World 2021 Methodology, at 3–16 (2021), https://perma.cc/5NNZ-TLCV. Most of the people in these two categories do not even have the extremely limited version of political freedom offered by ballot box voting.
III. Foot Voting and Judicial Enforcement of Structural Limits on Federal Power
The most obvious way in which constitutional systems can facilitate foot voting is by promoting federalism: the decentralization of political power to subnational governments. As a general rule, the more authority is devolved to lower levels of government, the more issues will be subject to foot-voting options at relatively lower moving costs.43See Somin, Free to Move, supra note 3, at 80–81. The key exceptions to the rule are local and regional policies that themselves inhibit mobility, an issue discussed in more detail later in this Article.44See infra Part IV.
The appropriate extent of decentralization of power depends on a variety of factors other than foot voting. But facilitating foot voting is an important consideration that should be given greater focus in debates over the allocation of power in federal systems. Other things equal, the value of facilitating foot voting counsels in favor of greater decentralization than might be preferred otherwise.45For more detailed discussion, see Somin, Democracy and Political Ignorance, supra note 5, at 176–78, 192–95.
There are several ways in which judicial review can facilitate foot voting by decentralizing power to state and local governments. Perhaps the most significant is limiting the scope of federal regulatory authority under the Commerce Clause of Article I of the Constitution, which gives Congress the power to regulate “Commerce . . . among the several [s]tates.”46U.S. Const. art. I, § 8, cl. 3.
The proper scope of federal power under the Commerce Clause is a source of longstanding debate, going all the way back to the time of the Founding and the Marshall Court.47See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (famous early Supreme Court ruling on this issue). But modern Supreme Court jurisprudence has expanded federal power in this sphere to absurd lengths, such as enabling Congress to ban the possession of marijuana that never crossed state lines, nor was sold in any market, even within a state.48Gonzales v. Raich, 545 U.S. 1, 15–22 (2005). I have criticized this ruling in detail in Ilya Somin, Gonzales v. Raich: Federalism as a Casualty of the War on Drugs, 15 Cornell J.L. & Pub. Pol’y 507 (2006). Reducing the vast scope of federal authority here would leave more issues under the control of states and localities, and therefore open to foot voting choices.
Another important constitutional constraint that can facilitate foot voting is the limitation of fiscal transfers from central governments to regional and local ones. The greater the extent of such grants, the less subnational governments must rely on raising tax revenue from their own residents to meet their fiscal needs. That, in turn, diminishes subnational governments’ incentive to compete for migrants by adopting policies likely to attract them and to promote the economic development that attracts foot voters seeking jobs and opportunity. For these reasons, “hard budget constraints” that restrict central government transfers to regional and local authorities are extremely valuable tools for facilitating both foot voting and economic development.49On the importance of hard budget constraints for these purposes, see Geoffrey Brennan & James M. Buchanan, The Power to Tax: Analytical Foundations of a Fiscal Constitution 181–86 (1980); Clayton P. Gillette, Fiscal Federalism as a Constraint on States, 35 Harv. J.L. & Pub. Pol’y 101 (2012); Ilya Somin, Foot Voting, Federalism, and Political Freedom, in Nomos LV: Federalism and Subsidiarity 83, 103–06 (James E. Fleming & Jacob T. Levy eds., 2014); Barry R. Weingast, The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development, 11 J.L. Econ. & Org. 1 (1995); and Barry R. Weingast, Second Generation Fiscal Federalism: Implications of Fiscal Incentives, 65 J. Urb. Econ. 279 (2009).
Hard budget constraints do not necessarily require a complete ban on intergovernmental transfers. But they do necessitate the imposition of sufficiently tight restrictions on their extent that are relatively difficult to breach. Otherwise, subnational governments will have strong incentives to look to central governments to meet their revenue needs rather than take the more politically difficult option of raising tax rates or increasing their tax base by fostering development.50See, e.g., Jonathan Rodden, Hamilton’s Paradox: The Promise and Peril of Fiscal Federalism 75–117 (2006).
Hard budget constraints are also entirely compatible with using the central government to redistribute wealth to the poor. Such redistribution can be undertaken by transfers that give funds directly to the poor rather than using subnational governments as intermediaries. Doing so might even be more efficient, insofar as it might help reduce the risk of “capture” of the funds in question by local or regional interest groups.51For a discussion on some of the potential advantages of this approach, see Ilya Somin, Closing the Pandora’s Box of Federalism: The Case for Judicial Restriction of Federal Subsidies to State Governments, 90 Geo. L.J. 461, 477–80 (2002).
Current Supreme Court precedent gives Congress broad power to provide grants to state and local government for almost any purpose, interpreting the words “general welfare” in the Spending Clause of Article I of the Constitution to permit such grants.52See, e.g., South Dakota v. Dole, 483 U.S. 203, 210–12 (1987). Elsewhere, I have advocated for a narrower interpretation of “general welfare” that would preclude many such grants.53See Somin, supra note 51, at 489–94; Ilya Somin, Putting the ‘General’ Back in the General Welfare Clause, Nat’l Const. Ctr., http://perma.cc/G34J-AQ7J. Here, I note that imposing tighter constraints on federal grants to states and localities could do much to help facilitate foot voting.
While the Court has been reluctant to limit the subject matter of federal grants, it has imposed several limits on conditions that may be attached to them, most notably insisting that the conditions states must follow have to be clear,54E.g., Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“[I]f Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.”). and that they cannot be “coercive.”55See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 580–83 (2012) (opinion of Roberts, C.J.); Dole, 483 U.S. at 210–11. These restrictions impose only modest constraints on federal subsidization of states and localities. But they do nonetheless make it somewhat harder for the federal government to use grants to impose uniformity of policy on states. That, in turn, can help facilitate foot voting, by enhancing states’ ability to pursue policies at odds with those preferred by the federal government and divergent from those of other states.
IV. Judicial Protection of Individual Rights that Enhance Interjurisdictional Mobility
The most obvious individual right that can help facilitate foot voting is, of course, the right of freedom of movement. As early as 1867, the Supreme Court interpreted the Constitution as incorporating an implicit right of freedom of movement across state boundaries, even though it was nowhere explicitly stated.56See Crandall v. Nevada, 73 U.S. 35, 44–49 (1867).
After the enactment of the Fourteenth Amendment in 1868, the Court eventually interpreted its protections for liberty as forbidding state government efforts to restrict interstate movement. As the Court stated in Williams v. Fears,57179 U.S. 270 (1900). “[u]ndoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any [s]tate is a right secured by the Fourteenth Amendment.”58Id. at 274. As late as the 1940s, however, some states still attempted to block interstate migration.59See, e.g., Edwards v. California, 314 U.S. 160, 171, 177 (1941). Yet, in 1941, the Supreme Court struck down a California law making it a crime to bring into the state any “indigent” person who was not already a resident.60Id. at 171. The Court’s willingness to protect interstate movement has proven crucial for the viability of foot voting. If either the central government or regional ones can block migration, foot voting becomes more difficult, and in the extreme case, completely impossible.
Foot voting is also obviously enhanced by constitutional restrictions on laws that forbid some members of the population from residing in particular areas, such as racial residential segregation laws. Buchanan v. Warley,61245 U.S. 60 (1917). the 1917 decision in which the Supreme Court struck down such restrictions, was, among other things, a notable triumph for foot voting.62Id. at 78–82. On Buchanan and its significance, see, for example, David E. Bernstein & Ilya Somin, Judicial Power and Civil Rights Reconsidered, 114 Yale L.J. 591, 626–39 (2004); and David E. Bernstein, Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective, 51 Vand. L. Rev. 797, 858–72 (1998). If people belonging to particular races, ethnicities, or other social groups are forbidden to settle in a given area, that obviously restricts their foot voting options, as well as being unjust for other reasons.
For fairly obvious reasons, judicial protection of mobility rights can empower foot voting in both the private and the public sector. The ability to migrate to a given region enables would-be foot voters to take advantage of both that jurisdiction’s government policies and private foot voting opportunities, such as private planned communities.
More controversial is the status of constitutional rules forbidding regional and local governments from restricting the provision of welfare benefits to recently arrived migrants from other parts of the country.63See Saenz v. Roe, 526 U.S. 489, 492, 504–11 (1999) (forbidding the establishment of a one-year period during which migrants are entitled only to as much in welfare payments as they would have received in their previous home state); Shapiro v. Thompson, 394 U.S. 618, 621–22, 627–29, 633 (1969) (forbidding a one-year exclusion from welfare for such migrants). On one hand, exclusion from welfare benefits can potentially deter migrants from entering a jurisdiction, thereby impeding mobility.64See Shapiro, 394 U.S. at 627–28. On the other, such exclusion is a potentially useful “keyhole solution” for a possible negative side effect of migration: the pressure it can put on the welfare system.65See Somin, Free to Move, supra note 3, at 121–50. While subnational governments generally do not have the legal authority to exclude internal migrants entirely, they can adopt various policies that might deter them indirectly, in order to avoid becoming “welfare magnets.”66See, e.g., Paul E. Peterson & Mark C. Rom, Welfare Magnets: A New Case for a National Standard (1990).
The just resolution of this issue turns in large part on the extent to which we believe jurisdictions are morally required to redistribute to people outside their territory.67See Somin, Free to Move, supra note 3, at 64–79, 121–50. But it is also worth noting that, to the extent limiting welfare benefits for migrants makes migration more politically feasible, it could be in the interest of migrants themselves. One of the biggest benefits of free migration—both domestically and internationally—is the opportunities it creates for migrants to increase their productivity and find more lucrative employment, thereby greatly reducing the need for them to subsist off welfare benefits in the first place.68See id. at 45–79.
A. Protecting Individual Rights that Indirectly Facilitate Foot Voting
There is much that judicial review can potentially do to enhance foot voting by protecting individual rights that have only an indirect connection to mobility. Like judicial protection of mobility rights, these interventions can protect foot voting in both the public and private sectors. In this Section, I can only give a limited overview, with emphasis on several key examples where stronger judicial protection of individual rights can potentially make a major difference.
Some individual rights included in the Constitution, and already given strong protection by courts, have clear relevance to foot voting. For example, freedoms of speech and press—of the sort protected by the First Amendment69U.S. Const. amend. I.—help to create a free flow of information, which in turn is of great value to potential foot voters in choosing between jurisdictions.
Freedom of religion also has great value in enhancing foot voting. For obvious reasons, people may not be able to migrate to jurisdictions where their religious beliefs are subject to persecution by the state. In addition, religious institutions often provide valuable private sector foot voting opportunities, such as religious schools and social services.70For example, private religious schools offer educational options of particular value to the poor and disadvantaged. See generally William G. Howell & Paul E. Peterson, The Education Gap: Vouchers and Urban Schools (rev. ed. 2006) (documenting these benefits).
The right to be free of arbitrary arrest and imprisonment without due process is another common constitutional guarantee that has a fairly obvious connection to foot voting. A person who is arrested or imprisoned is clearly not free to engage in foot voting for as long as state authorities choose to detain him or her.
For similar reasons, foot voting is facilitated by constitutional rights that prevent state interference with voluntary intimate relations, such as laws banning same-sex sexual relationships and marriages.71See Obergefell v. Hodges, 576 U.S. 644 (2015) (striking down laws banning same-sex marriage); Lawrence v. Texas, 539 U.S. 558 (2003) (striking down laws banning same-sex sexual activity). Persons involved in such relationships and marriages often cannot easily reside in jurisdictions that forbid them.
Constitutional protection for property rights and economic liberties can also often facilitate foot voting. In the case of property rights, restrictions on zoning and land-use regulations that make it difficult or impossible to build new housing in areas otherwise highly attractive to migrants can help facilitate foot voting.72For more extensive discussions on this point, see Somin, Free to Move, supra note 3, at 52; and Edward Glaeser, Reforming Land Use Regulations, Brookings Inst. (Apr. 24, 2017), https://perma.cc/ULE2-4P48. Yet, a series of Supreme Court decisions beginning with Euclid v. Ambler Realty Co.73272 U.S. 365 (1926). in 1926 have largely exempted zoning laws from the constraints of the Takings Clause of the Fifth Amendment,74See id. at 386–97. which might otherwise require “just compensation” for severe restrictions on owners’ use of their own land.75U.S. Const. amend. V. Whatever the legal merits of this line of cases, they have resulted in massive constraints on foot voting in the United States, especially by the poor and disadvantaged.76For an analysis of the resulting constraints on foot voting, see Somin, Free to Move, supra note 3, at 52–53.
Recent evidence suggests that the benefits of loosening zoning restrictions on migration may be even greater than previously thought. A well-known 2019 article by economists Chang-Tai Hsieh and Enrico Moretti found that, if restrictions on housing construction in New York, San Jose, and San Francisco (three major cities with especially harsh zoning) were reduced to those of the median U.S. city between 1964 and 2009, U.S. GDP in 2009 would have been about 8.9% higher than was actually the case.77Chang-Tai Hsieh & Enrico Moretti, Housing Constraints and Spatial Misallocation, Am. Econ. J.: Macroeconomics, Apr. 2019, at 1, 25–26 (2019). However, as Hsieh and Moretti admit, economist Bryan Caplan found that they made calculation errors that actually greatly understate the size of this effect.78Bryan Caplan, Hsieh-Moretti on Housing Regulation: A Gracious Admission of Error, Econlib (Apr. 5, 2021), https://perma.cc/AP7C-A7GQ. After correction, it turned out that GDP in 2009 would have been a whopping 36% higher than it actually was.79Id. This also suggests the enormous potential economic gains from cutting back exclusionary zoning around the nation, which would likely be substantially greater than those generated by reform in just a few particularly restrictive major cities.
The Supreme Court’s near-total gutting of constraints on the purposes for which governments may take private property by eminent domain has also impeded foot voting. Indeed, the Court has allowed numerous condemnations of residential property for purposes of removing “blight” and facilitating “economic development” that have led to the expulsion of many thousands of people—mostly poor and minorities—from their homes.80For an overview of these developments, see Ilya Somin, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain73–111 (rev. ed. 2016) [hereinafter Somin, The Grasping Hand]. Similar problems have occurred in other nations where governments have had free rein to use takings to displace homes and small businesses for the benefit of more powerful interest groups.81For essays on various countries’ actions, see Eminent Domain: A Comparative Perspective (Iljoong Kim, Hojun Lee & Ilya Somin eds., 2017). Forcible displacement is not quite the same thing as blocking people from moving to an area in the first place. But in both cases, it is an example of the government using force to prevent people from residing in the location where they would otherwise choose to be.
Stronger constitutional protection for property rights can also help forestall a potential negative side effect of mobility: The possibility that governments will target immobile assets for exploitation due to limitations on their ability to target mobile ones, since the latter can exit the jurisdiction.82See Ilya Somin, Federalism and Constitutional Property Rights, U. Chi. Legal F. 53, 57–66 (2011). In addition to facilitating interjurisdictional mobility, constitutional protection of property rights can also often help promote foot voting in the private sector. If property owners have greater ability to use their land as they see fit, they can offer potential consumers a wider range of services and residential options. For example, they can establish more private planned communities, with a broader variety of institutional frameworks and services.83For a discussion on the importance of property-right protections on foot voting, see Somin, Free to Move, supra note 3, at 80–90.
What is true for property rights is also often true for some types of protection for economic liberties. Licensing regulations intended to protect incumbent producers against competitors are a significant obstacle to interstate mobility in the United States.84See, e.g., Janna E. Johnson & Morris M. Kleiner, Is Occupational Licensing a Barrier to Interstate Migration?, Am. Econ. J.: Econ. Pol., Aug. 2020, at 347, 370–71 (2020). In recent years, federal courts have begun to strike down a few of the most egregious examples of such regulations when there is no remotely plausible consumer protection justification for these rules, whose real purpose is probably to protect incumbents from competition.85For an overview and defense of these decisions, see Steven Menashi & Douglas H. Ginsburg, Rational Basis with Economic Bite, 8 N.Y.U. J.L. & Liberty 1055 (2014). For arguments advocating for more robust judicial intervention to protect economic liberties, see, for example, David N. Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right (2011); and Bernard H. Siegan, Economic Liberties and the Constitution (1980). For defenses of the conventional wisdom that such rights deserve little or no protection, see, for example, Barbara H. Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement (2001); and Cass R. Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873 (1987). Moreover, a relaxation of licensing rules and other constraints on economic transactions can also expand individuals’ abilities to foot vote in the private sector. It can facilitate contractual and other relationships with employers, producers of goods and services, and so on.86For a discussion on the consequences of relaxing constraints, see Somin, Free to Move, supra note 3, at 80–90. For an extended argument that economic liberty is a central element of liberty more generally, see John Tomasi, Free Market Fairness (2012).
Obviously, there are a variety of plausible justifications for restricting property rights and economic liberties87For a discussion on a range of such justifications, see Ilya Somin, Taking Property Rights Seriously?: The Supreme Court and the “Poor Relation” of Constitutional Law 3–19 (George Mason L. & Econ. Rsch. Paper No. 08-53, 2008), https://perma.cc/YP2G-KYZV. and for denying them all or most constitutional protection. Since the 1950s, the Supreme Court has imposed very strict limits on judicial protection of economic liberty88See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 491 (1955) (ruling that regulations of economic transactions are subject only to the most minimal “rational basis” constitutional scrutiny). and for some types of property rights—particularly those that limit the range of reasons for which government can take property.89Berman v. Parker, 348 U.S. 26, 32–36 (1954) (ruling that almost any public interest asserted by the government qualifies as a “public use” for which the government can take property). These rulings have no shortage of modern defenders, on both doctrinal and consequentialist grounds.90For defenses of the conventional wisdom on judicial protection for economic liberties, see, for example, sources cited in supra note 85. For an overview and critique of standard rationales for perpetuating weak limitations on the range of purposes for which government can take private property, see Somin, The Grasping Hand, supra note 80, at 35–134.
Nonetheless, the ability of constitutional protections for property rights and economic liberty to facilitate foot voting is a consideration in their favor. It is far from the only factor that must be weighed. Still, it deserves greater attention than it has so far received in debates about the proper scope of these rights.
B. The Problem of Constitutional Rights that Reduce Mobility
If judicial protection for many constitutional rights might facilitate mobility, there may be some for which enforcement actually reduces it. For example, if courts provide strong protection for gun rights under the Second Amendment, that might lead to increased violence, which in turn might deter fearful people from moving to states with relatively lax gun control laws.91I am grateful to Barry Friedman for this suggestion. Similarly, if the Supreme Court continues to protect abortion rights,92As of this writing, the Court is in the process of considering the case of Jackson Women’s Health Organization v. Dobbs, 945 F.3d 265 (5th Cir. 2019), cert. granted, 141 S. Ct. 2619 (2021), which could potentially overrule or narrow the rights protected by Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). social conservatives might choose to avoid states where abortion is more common.
As a practical matter, it does not appear that states with relatively lax gun control laws thereby deter migration. To the contrary, the state of Texas—which has attracted more net internal migrants than any other state but Florida over the last decade—has an “F” rating for its gun laws from the pro-gun control Giffords Law Center.93For overviews of Texas’s success in attracting migrants, see David Byler, Opinion, Texas’s Population and Political Power Are Growing. Here’s Why., Wash. Post (May 3, 2021, 8:00 AM), https://perma.cc/6TK8-C2MV; and Ilya Somin, How Texas Became a Magnet for Foot Voters, Volokh Conspiracy (May 5, 2021, 10:15 AM), https://perma.cc/J8KB-67MM. For Texas’s low rating from the Giffords Law Center, see Annual Gun Law Scorecard, Giffords L. Ctr., https://perma.cc/N6G8-7Z4D(presenting the 2020 scorecard). Florida, the only state that attracted even more net migrants than Texas, has a “C” rating from the Giffords Law Center.94Annual Gun Law Scorecard, supra note 93. Most of the other states that consistently rank in the top ten in attracting movers also have relatively weak gun control laws, including Arizona, Idaho, North Carolina, and Tennessee.95See Ilya Somin, How Federalism Can Empower People to Vote with Their Feet, State & Loc. Gov’t L. Blog (Oct. 11, 2021), https://perma.cc/G73F-2HST (listing relevant states). The Giffords Law Center gun control ratings for Arizona, Idaho, North Carolina, and Tennessee range from a D and D-minus (for North Carolina and Tennessee, respectively) to an F (for Arizona and Idaho). Annual Gun Law Scorecard, supra note 93. For my thoughts on the potential effects, and the uncertainties surrounding them, see Ilya Somin, Justices’ Texas Abortion Ruling Is Murky on Key Question, Law360 (Jan. 7, 2022, 2:52 PM), https://perma.cc/8V82-NQAU.
Thus, it does not appear to be the case that lax gun control is a significant factor deterring interstate migration. Either it is a minor issue compared to other government policies or it attracts migrants seeking stronger protection for their right to own firearms. We cannot know for sure what the effects on foot voting will be if the Supreme Court begins to more rigorously enforce its precedents protecting Second Amendment rights.96See McDonald v. City of Chicago, 561 U.S. 742, 791 (2010); District of Columbia v. Heller, 554 U.S. 570, 628–36 (2008). So far, enforcement of these precedents has been quite limited. But the Court may change that in New York State Rifle & Pistol Association v. Beach, 818 F. App’x 99 (2d Cir. 2020), cert. granted, 141 S. Ct. 2566 (2021), a case currently before them. But, so far, available evidence does not suggest that that relatively stronger gun rights deter foot voters.
There is, likewise, no evidence indicating that protection for abortion rights, or for other possible constitutional rights, deters migrants. Whether recent moves by some “red states” to crack down on abortion increase migration remains to be seen.97For an overview, see Alan Greenblatt, How Red States Got Their Groove Back, Governing (July 26, 2021), https://perma.cc/CXT2-9RJH. For example, it is too early to assess the potential impact of Texas’s recently enacted SB 8 law, which imposes severe civil liability on nearly all abortions performed six weeks after conception or later and leaves enforcement up to lawsuits by private parties.98See Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495–98 (2021) (describing the law). The Supreme Court recently refused to issue a preliminary injunction against the law, and barred on procedural grounds many—but not all—of the lawsuits challenging it.99See Whole Woman’s Health v. Jackson, 2021 WL 5931622 (mem) (Supreme Court, Dec. 16, 2021) (barring some suits, but permitting others): Whole Woman’s Health v. Jackson, 141 S.Ct. at 2495 (2021) (refusing to grant preliminary injunction). The ultimate effect of the SB 8 litigation remains unclear, as of the time this Article was completed in early 2022.
None of this proves that either lax gun control or broad abortion rights are necessarily a good idea, or that either is a constitutional right that courts should strongly protect. I do not attempt to resolve these longstanding debates here. Rather, my point is that the available evidence does not support the notion that strong protection for either deters foot voting.
It is possible, of course, that judicial protection for some types of individual rights really does deter migration, even if protection of gun rights or abortion rights does not. If so, foot voting considerations would counsel against strong judicial intervention to protect those rights. There are also likely to be some rights for which protection doesn’t much affect foot voting either way. In the latter scenario, foot voting should not play any significant role in our evaluation of the merits of judicial protection for those rights.
In this Article, I do not attempt a comprehensive foot-voting-oriented evaluation of every current or conceivable constitutional right. Instead, I cover a more limited range of rights for which the net beneficial effects on foot voting opportunities are especially strong. Even if the role of foot voting in assessing constitutional rights is limited to these cases of “low-hanging fruit,” it is still significant, as many of the rights in question are very important ones.
V. Facilitating Foot Voting Through International Migration
In addition to protecting domestic foot voting, judicial review can also help protect foot voting through international migration. Possible steps in that direction include enforcing constitutional limits on the power of the federal government to exclude migrants and eliminating double standards that currently exempt immigration restrictions from most of the constitutional restrictions that apply to other areas of policy.100See Ilya Somin, Rethinking the Scope of Federal Power Over Immigration (manuscript at 2–3) (on file with author) [hereinafter Somin, Rethinking the Scope]; Ilya Somin, Immigration Law Defies the American Constitution, Atlantic (Oct. 3, 2019, 1:05 PM), https://perma.cc/QUP7-NA7W[hereinafter Somin, Immigration Law Defies the American Constitution]. Judicial review can also indirectly protect immigrants by enforcing constitutional constraints on federal coercion of “sanctuary cities”—state and local governments that refuse to assist federal efforts to detain and deport undocumented migrants.
The most obvious way to bolster migration rights through judicial review would be to impose constraints on the government’s power to exclude immigrants. By contemporary standards, this is a radical idea. But it is far from unprecedented. During most of the first century of American history, the dominant view—advocated by such founding fathers as James Madison and Thomas Jefferson, among others—was that the Constitution did not grant the federal government a general power over immigration,101See Somin, Rethinking the Scope, supra note 100 (manuscript at 8–9); see also Anna O. Law, The Historical Amnesia of Contemporary Immigration Federalism Debates, 47 Polity 302, 318 (2015). and there was very little federal legislation restricting migrants entering from abroad.102See Law, supranote 101, at 311. In response to the Alien Act of 1798, which gave the President the power to deport “all such aliens as he shall judge dangerous to the peace and safety of the United States,” and those suspected of “treasonable or secret machinations against the government,”103Alien Friends Act, ch. 58, § 1, 1 Stat. 570, 571 (1798).. Madison, Jefferson, and others denied that any such power was granted to the President or any other agent of the federal government.104Somin, Rethinking the Scope, supra note 100 (manuscript at 35). Their view was the dominant reaction to the Act.105Id.
The famous Virginia Resolution attacking the Alien and Sedition Acts, drafted by James Madison on behalf of the General Assembly of Virginia, advanced this view and argued that the Alien Friends Act “exercises a power no where delegated to the federal government.”106James Madison, Virginia Resolutions of 1798, reprinted in 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 528 (Jonathan Elliot ed., 1836) [hereinafter Elliot’s Debates]. Madison restated this view in greater detail in his Report of 1800 to the Virginia legislature.107James Madison, Madison’s Report on the Virginia Resolutions, reprinted in 4 Elliot’s Debates, supra note 106, at 546. Thomas Jefferson adopted much the same position in his October 1798 draft of the Kentucky Resolution, which stated that “A[lien]-friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the [United States,] nor prohibited to the individual states distinct from their power over citizens.”108Thomas Jefferson, The Kentucky Resolutions of 1978: Jefferson’s Draft (1798), in 30 The Papers of Thomas Jefferson 536 (Barbara B. Oberg ed., 2003), https://perma.cc/DE4F-DSZH. The Kentucky Resolution of 1799, did not include this language, though it continued to condemn the Alien Act as unconstitutional. Kentucky Resolutions of 1798 and 1799, reprinted in 4 Elliot’s Debates, supra note 106, at 540, 544–45. For a discussion of Jefferson’s position on this issue, see David N. Mayer, The Constitutional Thought of Thomas Jefferson 202–04 (1994). Eventually, the unpopular Alien Friends Act played a role in the defeat of the Federalist Party in the election of 1800 and was allowed to expire by the Jefferson Administration and the new Republican-controlled Congress, without ever having actually been used to deport any aliens.109See Marilyn P. Baseler, “Asylum for Mankind”: America 1607–1800, at 287–90 (1998). Madison and Jefferson’s narrow view of federal power over immigration prevailed and dominated federal policy for many decades, until its erosion in the late nineteenth century, in part due to racial prejudice against Chinese immigration.110For an overview of this history, see Somin, Rethinking the Scope, supra note 100 (manuscript at 10–19).
The Supreme Court did not hold that Congress had a general power to exclude immigrants until the Chinese Exclusion Case111Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889). of 1889, which upheld the Chinese Exclusion Act of 1882.112Id. at 603, 609. That ruling rested on questionable grounds. The Court failed to identify any specific provision in the Constitution that gave the federal government power to exclude immigrants, but instead asserted that the power must exist somewhere because it is one all nations must have.113Id. For criticism, see Somin, Rethinking the Scope, supra note 100 (manuscript at 29–32); Ilya Somin, Does the Constitution Give the Federal Government Power over Immigration?, Cato Unbound (Sept. 12, 2018), https://perma.cc/J563-E3W3[hereinafter Somin, Government Power Over Immigration]. Further, both the Chinese Exclusion Case and later rulings exempting immigration restrictions from most individual-rights limitations on government power were heavily tainted by racial bigotry of the same kind that led to Plessy v. Ferguson114163 U.S. 537 (1896). and other decisions upholding domestic racial discrimination during the same era.115For a detailed discussion, see Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998). Indeed, even the Court’s opinion in the Chinese Exclusion Case exudes bigotry, citing the supposed need to exclude “the presence of foreigners of a different race in this country, who will not assimilate with us,” and asserting that “the differences of race” were a major factor in the threat supposedly posed by Chinese immigrants.116Chae Chan Ping, 130 U.S. at 595, 606.
This background does not necessarily prove that the Court’s ruling was wrong. But its bigoted origins should diminish any respect it is owed simply on the basis of adherence to longstanding precedent. Elsewhere, I have defended Jefferson and Madison’s approach to federal immigration power on textualist and originalist grounds.117See Somin, Rethinking the Scope, supra note 100; Somin, Government Power Over Immigration, supra note 113. Here, I merely note that it is at least a plausible position, and one that would greatly expand opportunities for foot voting through international migration.
It is unlikely that the Supreme Court will embrace the Madisonian view of federal immigration power any time in the near future, if ever. Obviously, any such move would also have to confront the issue of when it is appropriate to overturn longstanding precedent, even when tainted by racism. But constitutional constraints can still impose incremental limits on the extent to which national governments can restrict migration.
There are several steps the Supreme Court could take to move towards the Madisonian view without reversing the Chinese Exclusion Case completely. These include imposing tougher scrutiny on new immigration restrictions and cutting back the scope of federal power at the margin. Such moves would make the federal government’s authority over immigration more consonant with the Court’s interpretation of broad, but still limited federal powers in the domestic sphere, such as the power to regulate interstate commerce.118See Somin, Rethinking the Scope, supra note 100(manuscript at 35–37).. The power to regulate foreign commerce, contained in the same clause as the interstate commerce power,119U.S. Const. art. I, § 8, cl. 3. is often cited as a possible justification for federal power over immigration.120See, e.g., Jennifer Gordon, Immigration as Commerce: A New Look at the Federal Immigration Power and the Constitution, 93 Ind. L.J. 653, 658–59 (2018). If so, perhaps the two should be subject to the same types of limitations.
Even if courts cannot impose structural limits on federal power over immigration, they can at least ensure that antidiscrimination rules that constrain other exercises of government power also apply to immigration policy. Thus, to the extent that the constitution forbids or severely limits government policies that discriminate on the basis of race, ethnicity, gender, or religion, those constraints should apply equally to immigration law. Moreover, such antidiscrimination limitations should be enforced by courts without any special deference applying only to immigration restrictions. This point is reinforced by the similarities between the place-of-birth discrimination inherent in many immigration restrictions and invidious racial and ethnic discrimination. Both forms of discrimination focus on morally arbitrary characteristics that people have no control over.121For a discussion of these issues, see Somin, Free to Move, supra note 3, at 91–120. In addition, many immigration restrictions have historically been motivated in part by racial, ethnic, and religious prejudices.122Id. at 126; see also Beth Lew-Williams, The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America (2018) (noting role of anti-Chinese bigotry in establishment of immigration restrictions); Daniel Okrent, The Guarded Gate: Bigotry, Eugenics, and the Law that Kept Two Generations of Jews, Italians, and Other European Immigrants Out of America (2019) (discussing role of bigotry against various types of European immigrants in facilitating the crucial 1924 Immigration Act). Thus, there is no reason to treat discrimination differently in the immigration sphere.
From this standpoint, the Supreme Court’s decision in Trump v. Hawaii,123138 S. Ct. 2392 (2018). the “travel ban” case, was a step in the wrong direction. There, the Court upheld President Donald Trump’s policy of banning nearly all entry into the United States by citizens of several Muslim-majority nations, despite strong evidence that the ban was motivated by religious bigotry against Muslims.124See id. at 2415–23; see also Ilya Somin, The Supreme Court’s Indefensible Double Standard in the Travel-Ban Case and Masterpiece Cakeshop, Vox (June 27, 2018, 9:40 AM), https://perma.cc/8WCG-QQMK. Religious discrimination of this type would almost certainly have been invalidated by the Court if it had occurred in any domestic context.125For a detailed discussion of the reasons why, see Somin, supra note 124. Indeed, the Court had invalidated a domestic policy on similar religious discrimination grounds in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,126138 S. Ct. 1719 (2018).—decided just a few weeks before Trump v. Hawaii—even though there was less evidence of discriminatory animus in the former case than the latter.127For a discussion of the reasons why the facts in Trump v. Hawaii provided stronger evidence of discriminatory motivation than in Masterpiece Cakeshop, see Somin, supra note 124. It is unfortunate that the Court took a far more deferential approach because the travel ban was a type of immigration restriction.128For a criticism on the Trump travel ban and the idea of special deference on immigration policy, see Michael Mannheimer & Ilya Somin, Opinion, The Bill of Rights Is the Best Defense Against a Travel Ban, The Hill (Apr. 24, 2018, 8:30 AM), https://perma.cc/SG8F-SFP6; and Ilya Somin, Opinion, Donald Trump’s ‘Travel Ban’ Is Still a ‘Muslim Ban’ No Matter What the Supreme Court Ruled, USA Today (June 26, 2018, 4:10 PM), https://perma.cc/G5RK-KGTV.
Unfortunately, Trump v. Hawaii is just the tip of a much larger iceberg. In a long line of decisions, the courts and the political branches have largely exempted immigration restrictions from constitutional constraints that apply to virtually all other areas of government policy. Examples include very low due process standards for immigration detention and deportation, the use of racial profiling in immigration enforcement, and the exclusion of migrants who express political views disfavored by the federal government.129For an overview of such double standards, see Somin, Immigration Law Defies the American Constitution, supra note 100.
Even if Congress retains broad power to restrict immigration, that power can at least be limited by the same individual rights constraints that apply to other exercises of federal authority, including otherwise very broad ones, such as the power to regulate domestic interstate commerce. Applying such restrictions would still allow Congress to bar migration on a wide range of grounds, including education, income, and job skills, among others. But it would restrict discrimination on the basis of race, religion, national origin, political views, and other suspect classifications.130Review of suspect classifications would also include review of facially neutral policies where there is evidence that the real motive was to target people based on forbidden classifications, as in the case of the Trump “travel ban” litigation. See id. It would also impose due process and other procedural constraints on immigration detention and deportation.131For a detailed discussion on the procedural constraints, see id.
Finally, judicial review can indirectly limit immigration restrictions by protecting “sanctuary cities”—state and local jurisdictions that refuse to help the federal government apprehend and deport undocumented migrants. During the Trump Administration, federal courts repeatedly ruled against various initiatives intended to force sanctuary jurisdictions to cooperate with federal immigration enforcement authorities.132For an overview of these cases, see Ilya Somin, Making Federalism Great Again: How the Trump Administration’s Attack on Sanctuary Cities Unintentionally Strengthened Judicial Protection for State Autonomy, 97 Tex. L. Rev. 1247 (2019). Courts struck down multiple Trump Administration policies targeting sanctuary cities on the grounds that they violated constitutional restrictions against federal “commandeering” of state and local governments, imposed conditions on recipients of federal grants to states and localities that had never been properly authorized by Congress, or some combination of both.133See id. (providing detailed discussion of the relevant rulings).
Protecting sanctuary cities does not provide absolute protection for undocumented migrants within these jurisdictions. The federal government can still use its own law enforcement resources to target them. But, absent state and local cooperation, its resources are often severely limited, because there are many more state and local law enforcement personnel than federal ones. Thus, in addition to protecting state and local autonomy, judicial protection of sanctuary jurisdictions also helps empower foot voting by immigrants.
Conventional wisdom assumes that political freedom and the will of the people are best expressed through ballot box voting. But in reality people often make better informed and more truly autonomous political choices when they are empowered to vote with their feet. In many situations, judicial review can help facilitate foot voting of various kinds.
When it does so, judicial intervention actually enhances political freedom, rather than undermines it. By empowering people to vote with their feet through protection of constitutional rights, courts can do much to enhance genuine self-government.
None of this proves that judicial review should always be used in ways that enhance foot voting. Sometimes that objective might be outweighed by considerations of constitutional theory, competing values, or some combination of both. In this Article, I do not attempt to present anything approaching a comprehensive theory of judicial review. But empowering foot voting should be a much more important component of any such theory than is usually recognized.