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

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 ri...

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Bibliographic Details
Published in:Political research quarterly 2011-03, Vol.64 (1), p.82-93
Main Authors: Francis, John G., Francis, Leslie P.
Format: Article
Language:English
Subjects:
Abortion
Advantages
Basic rights
Citizens
Citizenship
Civil unions
Concessions
Constraints
Cosmopolitanism
Death
Ethics
Federal government
Federalism
Geographic mobility
Human rights
Jurisdiction
Migration
Mobility
Morality
Political debate
Political systems
Privileges & immunities
Rights
Same sex marriage
Statutory law
Subnational government
Travel
U.S.A
United States
United States of America
Voluntary euthanasia
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Summary: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.
ISSN:1065-9129
1938-274X
DOI:10.1177/1065912909340893