The Volokh Conspiracy

Guest blogger John McGinnis’ new book Accelerating Democracy is an outstanding analysis of the ways in which modern technology and social science can improve the quality of decision-making in government and society. It is probably the most important book on that subject in a long time.

Much of John’s thesis is compelling. He is right that modern social science enables us to evaluate the effects of public policy far more accurately than in the past, and that modern technology makes it easier to disseminate the resulting knowledge. I also agree with John’s argument that the technological and social scientific revolutions strengthen the case for political decentralization, enabling lower-level governments to experiment with new types of policies. We can now evaluate such experiments much better than in the past, which increases their value to society. John is especially persuasive in arguing that we should legalize prediction markets, which are an extremely valuable source of information, even if imperfect.

I do, however, have two reservations about John’s conclusions: Because of the problem of rational political ignorance, voters may fail to exploit much of the new information available to them. We will be able to make better use of new data if we make more of our decisions by “voting with our feet” than by voting at the ballot box. And in many cases, such foot voting is best facilitated by limiting state and local government power, as well as that of Washington.

I. How Political Ignorance Reduces the Benefits of New Information.

As John effectively demonstrates, recent technological advances both give us new policy-relevant information and make it easier for the public to access it. The problem is that voters have little incentive to actually learn and make use of the new data. Because any one vote has only an infinitesmal chance of influencing the outcome of an election, most voters have little incentive to learn political information. They are “rationally ignorant”. As a result, the majority of the public is often ignorant of very basic political information that has long been readily available through the media and the internet. For example, when the GOP nominated Paul Ryan for vice president last year, oonly 32% of the public knew that he was a member of the House of Representatives, even though he had been a major figure politics for several years. Most are also ignorant about the distribution of spending in the federal budget, the issue Ryan was most associated with, and one that has been a major point of contention over the last few years in light of our severe fiscal crisis.

As I discuss in my own forthcoming book Democracy and Political Ignorance (Stanford University Press, to be published this fall), political knowledge levels have remained low and risen little if at all over the last fifty years, despite massive increases in education and the rise of electronic media and the internet. The problem is not lack of information, but voters’ lack of motivation to learn it. So far, there is no indication that new technological breakthroughs will change that. Huge amounts of new information are of only limited value to an electorate that often ignores basic facts that are already widely available.

Rationally ignorant voters also have little incentive to objectively evaluate the political information they do learn. Instead, they tend to evaluate it in a highly biased way, discounting anything that cuts against their preexisting views. Because the consequences of error for any individual voter are low, few try hard to objectively evaluate about new information they learn about public policy.

The combined impact of rational ignorance and bias greatly reduce the potential benefits of new information for improving the performance of democratic government. Obviously, public opinion is not the only influence on government policy in a democracy. But it does have a substantial impact, one that is affected by ignorance. John notes the problem of political ignorance in his book. But I don’t think he shows that new technology can overcome it. At the very least, there is reason for skepticism on this point, given our experience with the last fifty years of technological innovation.

Fortunately, however, we can make more effective use our new knowledge in another way. When we “vote with our feet” by choosing between jurisdictions in a federal system, or between products in the market, we have much stronger incentives to learn relevant information and evaluate it rationally. If you are like most people, you probably spent a lot more time and effort seeking out information the last time you bought a car or a TV than the last time you decided who to support for the presidency. That’s not because the presidency is less complicated than or less important than your TV. It’s because when you buy a TV, you know that your decision will make a real difference to the outcome, whereas with the presidency that is highly improbable. The same goes for deciding what city or state you are going to live in.

II. Taking Decentralization All the Way Down.

The informational advantages of foot voting over ballot box voting reinforce John’s argument for political decentralization, limiting the power of the federal government in order to allow more issues to be decided at the state and local levels. The more issues are decentralized, the more decisions can be made by voting with our feet. Sometimes, however, we can empower foot voters even more by limiting state and local governments in order to empower the private sector.

Foot voting in the private sector has significant advantages over choosing between governments. Among the most important is lower moving costs. Moving from one city to another or one state to another is much more costly than moving to a new private planned community or switching to a new service provider in the market. The latter can often be done without moving at all. Reducing moving costs is especially important when it comes to making decisions about immobile assets, such as property rights in land. In such situations, the case for limiting state authority in order to empower the private sector is at its strongest. And enforcing such limits may require the federal intervention, including by federal courts.

Transferring decisions to private hands also often facilitates exploitation of new information. Private sector actors such as property owners often know far more about their preferences and the possible uses of their assets than the government does, a point I discuss in more detail in this article. And because there are many more private organizations than governments, they are in a position to try out a much wider range of the kinds of experiments that John rightly advocates. As John Stuart Mill pointed out back in the 19th century, creative private organizations are often the ones who develop the most innovative “experiments in living.” But such experiments are more likely to flourish if not preempted by government regulations that mandate uniformity.

The informational advantages of political decentralization and privatization are far from the only issues we need to consider in deciding how large and centralized government should be. Some problems are too large-scale to be handled by any private actor or subnational government. Global warming is an important example. But information issues do tilt the scales in favor of greater decentralization and tighter limits on government power than we might support otherwise.

In order to take full advantage of the information revolution described in John’s excellent book, government needs to be smaller and more decentralized.

My forthcoming article, “Foot Voting, Federalism, and Political Freedom,” is now available on SSRN. The article is part of a symposium on Federalism and Subsidiarity in the interdisciplinary journal Nomos, which focuses on a different broad issue in political theory every year. Other contributors include a variety of big-name federalism scholars in legal academia and political science: Daniel Weinstock, Loren King, Judith Resnik (Yale), Steve Calabresi (Northwestern), Jenna Bednar, Andreas Follesdal, Vicki Jackson (Harvard), Sotirios Barber, Michael Blake, Ernest Young (Duke), and Jacob Levy (McGill).

Here is the abstract for my article:

The idea of “voting with your feet” has been an important part of debates over federalism for several decades. But foot voting is still underrated as a tool for enhancing political freedom: the ability of the people to choose the political regime under which they wish to live.

Part I of this article explains some key ways in which foot voting in a federal system is often superior to ballot box voting as a method of political choice. A crucial difference between the two is that foot voting enables the individual to make a decision that has a high likelihood of actually affecting the outcome. By contrast, the odds of casting a meaningful ballot box vote are vanishingly small. This reality both enhances the individual’s degree of political freedom and incentivizes him or her to make better-informed and more rational decisions. It is an important consideration in favor of greater political decentralization.

In Part II, I consider some possible limitations of foot voting in a federal system as a tool for enhancing political freedom. These include moving costs, the possibility of “races to the bottom,” and the problem of oppression of minority groups by subnational governments. Each of these sometimes poses a genuine constraint on effective foot voting. But none are as severe a limitation as critics claim.

Part III argues that the case for foot voting under federalism should be expanded “all the way down” to local governments and private communities, and “all the way up” to freer international migration. It builds on a growing recent literature that advocates granting greater autonomy to local governments relative to regions. Just as foot voting can be expanded all the way down to the local level, there is also a strong case for extending it “all the way up” to the international level. The potential gains from freer international foot voting in some respects dwarf those that can be achieved domestically. For people living under authoritarian regimes, foot voting through international migration is often their only means of exercising any political choice at all.

The utility of foot voting as a tool for exercising political freedom is not the only factor that should be considered in designing federal systems. But it deserves much greater consideration than it has so far received.

Temple law professor Peter Spiro has an interesting New York Times column arguing that supporters of immigration should not fear a Supreme Court decision upholding Arizona’s draconian anti-illegal immigrant law, because interjurisdictional competition is likely to take care of the problem. By contrast, he fears that if the Court strikes down the law, the result could be the enactment of much more dangerous federal legislation:

Arizona is one of several states, including Alabama, Georgia, South Carolina and Indiana, that, frustrated by Congress’s idling on immigration reform, have challenged federal authority by taking it upon themselves to devise draconian policies for undocumented immigrants....

Such laws are misguided at best, mean-spirited and racially tainted at worst. The conventional wisdom among immigration advocates is that immigrant interests will be best served if the Supreme Court makes an example of Arizona’s law by striking it down.

But in the long run, immigrant interests will be better helped if the Supreme Court upholds S.B. 1070....

Undocumented immigrants may themselves be politically powerless, but they have powerful allies. In Alabama and Georgia, dismayed farmers have watched crops rot in the fields for want of immigrant labor. Arizona is estimated to have lost more than $140 million from convention cancellations made in protest.

Even more important is the prospect of lost foreign investment. Caught in the net of Alabama’s law in November was a German Mercedes-Benz executive, who left his passport at home while out for a drive and as a result found himself in a county jail. Mercedes has a plant in Tuscaloosa that employs thousands of Alabamians and adds many hundreds of millions of dollars to the state economy. That embarrassment will make the next foreign company think twice as it scouts out a location for a manufacturing facility in the United States....

In those states that have enacted laws, there are moves to roll them back. The Alabama House of Representatives has approved a Republican-sponsored bill to soften its current law....

Even if some of these state immigration laws survive political, corporate and consumer opposition on the ground, it’s better to have the scattered imposition of state laws than the blanket coverage of a federal measure. Other states and localities are welcoming immigrants, legal or not. That fact gets lost in the common indictment of state and local immigration measures as a “patchwork.” One of federalism’s core virtues is the possibility of competition among states. Competition in this context is likely to vindicate pro-immigrant policies.

I am much less certain than Spiro that a decision striking down the Arizona law is likely to be followed by punitive federal legislation. Congress is deeply divided on the subject, and the Obama administration is likely to oppose any such law. Even if Mitt Romney becomes president and has a narrow Republican congressional majority, passage of draconian federal legislation is far from certain, especially given the large number of competing political priorities that a new GOP administration would face.

That said, Spiro is right to suggest that interjurisdictional competition is likely to constrain the spread of Arizona-style illegal immigration laws, and possibly lead to the repeal or reform of some of the laws already enacted in various states. Even if a few states do retain these sorts of laws, businesses and individuals can effectively “vote with their feet” against them by moving to other states. As Spiro points out, this makes ill-advised state laws in this field much less dangerous than comparable federal ones.

UPDATE: I have revised some parts of this post for clarity.

UPDATE #2: I should note that there is one way in which the Arizona immigration law may be worse than a comparable federal law would be. I explained in detail in this 2010 post.

Yale Law Professor Heather Gerken, a prominent federalism scholar, has an interesting article in Democracy urging her fellow liberals to take a more favorable view of federalism:

Progressives are deeply skeptical of federalism, and with good reason. States’ rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. Many think “federalism” is just a code word for letting racists be racist. Progressives also associate federalism—and its less prominent companion, localism, which simply means decentralization within a state—with parochialism and the suppression of dissent. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level.

But it is a mistake to equate federalism’s past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

Much of Gerken’s argument is based on the simple but important point that groups that are relatively weak minorities at the national level often wield greater influence in state and local governments where they are a much higher proportion of the population. In these situations, political decentralization benefits minorities by shifting power to the level of government where they have more political clout.

This will not come as news to students of federalism in countries outside the US. Many federal systems were established in the first place precisely because some ethnic groups that are minorities at the national level are majorities in a province or state. Federalism therefore protects them against domination by the national majority. Canada, Switzerland, Spain, India, and many other federal systems are examples of this pattern.

In the United States, of course, this aspect of federalism has largely been ignored because we have had very few cases of states where a national minority was a majority within a single state. The Mormons in Utah are an important exception, but one that few federalism scholars have paid attention to. However, as Gerken points out, racial and other minorities have increasingly become majorities in some state and local governments. In others, they at least form a much larger proportion of the population than they do at the national level and therefore have greater power. This helps explain why such causes as gay rights have made much more progress at the state level than in Washington in recent years.

Gerken rightly emphasizes that political empowerment through federalism enables minorities to be active agents protecting their own interests, as opposed to comparatively passive recipients of federal largesse, where their fate is in the hands of the national majority or the federal courts. Unfortunately, she ignores a different way in which federalism empowers minorities: By enabling a diversity of policies to arise in different jurisdictions, minorities are able to “vote with their feet” for the jurisdiction that serves them best. For reasons I describe in this article, foot voting is often of even greater benefit to unpopular minority groups than others. A century ago, millions of African-Americans improved their lot by migrating from the South to northern jurisdictions that had less racist policies. Today, ironically, many northern blacks are moving to the South in part because southern states have fewer regulations that artificially impede employment and inflate housing prices.

Gerken’s argument would be stronger if she were more willing to question the conventional wisdom about the history of American federalism, which holds that decentralization has almost always been an enemy of minorities, while the federal government is usually their friend. There is no doubt that state governments have engaged in severe oppression of minorities throughout much of American history. But the same can be said of the federal government, which was guilty of such sins as the Fugitive Slave Act; federally imposed segregation in the armed forces, the federal civil service, and the District of Columbia; the expulsion of Native Americans from much of their land; and the brutal internment of over 100,000 Japanese-Americans during World War II.

In an era when racial minorities were widely hated and wielded little political power, extensive discrimination against them was probably inevitable, regardless of whether the political system was unitary or federal. At many points in American history, however, centralization would likely have made minorities worse off than federalism did. For example, a unitary policy on slavery in 1787 would probably have led to a nationwide law in its favor, since nearly all states were still slave states at that time. A unitary national policy on racial segregation circa 1900 would likely have led to nationwide Jim Crow (though probably a less severe version than existed in the deep South) and nationwide denial of the right to vote for African-Americans. The point is not that federalism was always good for minorities (it clearly was not), but that our history is far more complicated than a morality play in which evil states oppress minorities until the latter are rescued by a benevolent federal government. I discussed these historical points about federalism and minority rights in greater detail here.

Finally, it’s worth noting that Gerken’s progressive defense of federalism coexists uneasily with her apparent rejection of judicial enforcement of structural constitutional limits on federal power. If federalism today is good for minority groups because they often have greater influence at the state and local level than in Washington, it logically follows that minorities could benefit from stricter enforcement of constitutional limits on federal authority. Otherwise, a hostile national majority can use its control of the federal government to override the locally powerful minority’s gains.

Much more can be said about Gerken’s article. For now, I would add only that it’s a valuable contribution to the ongoing reconsideration of federalism on the political left, as well as the broader debate on the subject.

In this recent post, University of Texas constitutional law professor Sanford Levinson calls for a reassessment of our federal and state constitutions:

[I]nstead of being fixated on what the Constitution means, one instead asks whether the Constitution, given a stipulated meaning that may in fact not be at all difficult to discern, is in fact wise. One might call this a “Jeffersonian” approach to the Constitution inasmuch as it invites relentlessly asking whether the Constitution is serving us well. This is, incidentally, an especially important question if we agree on constitutional meaning. Disagreement, after all, suggests the possibility of legitimately interpreting the Constitution to achieve what we might describe as “happy endings.” The situation is decidedly different, however, if we agree on constitutional meaning, but believe that it sets us up less for happy endings than for driving over a cliff....

I have recently published a new book, Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford University Press), that focuses almost exclusively on the wisdom of constitutional structures that are, almost without exception, obvious in their meaning. Evidence of this obviousness is that they are rarely brought up in law school classes precisely because there is nothing to “argue about” in the only sense that lawyers and their professors define that term, which involves debates about meaning...

An important theme of the book is that there are fifty-one constitutions within the United States if one takes into account the fifty states. More to the point, these state constitutions can teach valuable lessons of their own. Some of them, as with the national constitution, may offer cautionary lessons inasmuch as they help to explain the dysfunctionalities of given state politics.

I agree with much of what Sandy says in this post. We should not blindly venerate the Constitution. And we should give serious consideration to the possibility that some parts of it are flawed or even dysfunctional. As I explained in this post, a few parts of the Constitution are indefensible and some others are at least open to serious question. Sandy is also right that legal scholars should pay more attention to the effects of the clear “hardwired” parts of the Constitution and to state constitutional law. The latter is sadly neglected by most constitutional law academics, and rarely gets its due in the law school curriculum. Hopefully, Sandy’s important book will help change that.

On the other hand, I am far less confident than Sandy that we should push for a major restructuring of the Constitution at this point in our history. As Richard Epstein notes in his response to Sandy’s post, such an effort could easily do more harm than good. We should not abjure all efforts constitutional reform. But I would prefer to use a scalpel rather than a meat cleaver. For that reason, I am skeptical of calls for a new constitutional convention, which has been advocated by some on the political right, as well as by Sandy himself.

I also disagree with some of Sandy’s specific criticisms of federal and state constitutions. For example, he writes that California’s state constitution is flawed because of “the near-inability to raise any taxes, given the constitutional requirement of a two-thirds vote in the legislature, coupled with the ability of the California electorate to pass legislation and even constitutional amendments through mechanisms of ‘direct’ democracy.” However, California has in fact been quite successful in raising taxes. It has the third-highest state income tax rate of any state (trailing only Hawaii and Oregon). The highest rate (9.3%) kicks in at an annual income of just $48,029. The state also has an above average state sales tax rate (6.25%). California’s fiscal crisis is the result of unusually high spending, not unusually low tax rates.

However, Sandy is not entirely wrong to believe that California’s problems have a constitutional dimension. As I explained in this post, the state’s dysfunctions are in part the result of its vast size and its favorable geographic location, which make it difficult for citizens to “vote with their feet” against excessive taxation and regulation. Only in the last few years have things gotten so bad that the state has begun to suffer net outmigration to other states. Californians would have been better off if the state were broken up into several smaller jurisdictions that would have to compete with each other for residents. But that option is rendered almost impossible by the federal Constitution.

UPDATE: The Tax Foundation reports that California has an additional 10.3% tax rate on incomes of over $1 million per year.

UPDATE #2: Mike Rappaport has posted a thoughtful response to Sandy’s post here. I agree with many of Mike’s points, though I a more sympathetic than he is to reforms that would make the US Constitution easier to amend.

My 2011 article “Foot Voting, Political Ignorance, and Constitutional Design” is now available on SSRN, after a delay due to policies of the publisher. Here’s the abstract:

The strengths and weaknesses of federalism have been debated for centuries. But one major possible advantage of building decentralization and limited government into a constitution has been largely ignored in the debate so far: its potential for reducing the costs of widespread political ignorance. The argument of this paper is simple, but has potentially important implications: Constitutional federalism enables citizens to “vote with their feet,” and foot voters have much stronger incentives to make well-informed decisions than more conventional ballot box voters. The informational advantage of foot voting over ballot box voting suggests that decentralized federalism can increase citizen welfare and democratic accountability relative to policymaking in a centralized unitary state.

Ballot box voters have strong incentives to be “rationally ignorant” about the candidates and policies they vote on because the chance that any one vote will have a decisive impact on an electoral outcome is vanishingly small. For the same reason, they also have little or no incentive to logically evaluate the information they do know. By contrast, “foot voters” choosing a jurisdiction in which to reside have much stronger incentives to acquire information and use it rationally; the decisions they make are individually decisive.

Political ignorance is far from the only factor that needs to be considered in determining the degree of centralization in political systems. But it deserves greater attention than it has received so far.

Tad DeHaven of the Cato Institute has a good post highlighting the data on state governments’ growing dependence on federal funds. Since 2001, federal grants have risen from 25.7% of state government spending to 34.1% today. Most of that growth has occurred since the present recession began in 2008.

One of the main distinctive benefits of American federalism is that, historically, state governments have had to raise most of their funds from their own taxpayers, rather than relying on grants from the feds. This gives states incentives to compete for taxpayers and improve the quality of their policies and public services, thereby increasing the effectiveness of voting with your feet. I cover these points in more detail here.

In most other federal systems, the central government provides the lion’s share of subnational governments’ funding. If present trends continue, the United States may join this trend. State governments will increasing look to Washington for most of their funds, and incentives for competition and innovation will be undermined. It’s possible that fiscal policy will return to “normal” as the economy improves. But state governments are likely to lobby for current grant levels to continue even after the recession ends. Current federal subsidy levels could easily become the new normal.

Political scientist Jason Sorens presents some interesting new data showing that people tend to “vote with their feet” for states with greater freedom when they make migration decisions. He shows that, controlling for other variables (such as climate and cost of living), people tend to migrate towards states with greater economic and personal freedom, and away from states with lower levels of either. The state freedom ratings are based on his excellent recent study Freedom in the Fifty States, coauthored with William Ruger. Economic freedom is defined by levels of government spending and regulation, while personal freedom is defined by such policies as regulation of sexual freedom, drugs, gambling, and so forth.

Sorens finds that migrants may find economic freedom attractive in part because it is associated with increases in income. Economically freer states experience higher income growth (though, surprisingly, in Sorens’ data it’s less clear that income growth is associated with higher in-migration). By contrast, personal freedom is not correlated with income growth. Migrants apparently find it attractive for its own sake. This last result contradicts Richard Florida’s famous theory that the economic growth of localities is highly dependent on its attractiveness to the “creative class,” which greatly values personal freedom. Perhaps the creative class is a less important engine of growth than Florida argues, or perhaps they don’t value personal freedom as much as we think they do. Regardless, many migrants apparently value personal freedom even if it doesn’t do much for their income.

I previously wrote about the tendency of migrants to vote with their feet for greater economic freedom here and here. In this article, I explain why foot voting decisions are generally likely to be better-informed and more rational than ballot box voting.

Riverside County Supervisor Jeff Stone recently called for southern California to secede and form a new state:

Is the state of California about to go “South”?

Riverside County Supervisor Jeff Stone apparently thinks so, after proposing that the county lead a campaign for as many as 13 Southern California counties to secede from the state.

Stone said in a statement late Thursday that Riverside, Imperial, San Diego, Orange, San Bernardino, Kings, Kern, Fresno, Tulare, Inyo, Madera, Mariposa and Mono counties should form the new state of South California.

The creation of the new state would allow officials to focus on securing borders, balancing budgets, improving schools and creating a vibrant economy, he said.

“Our taxes are too high, our schools don’t educate our children well enough, unions and other special interests have more clout in the Legislature than the general public,” Stone said in his statement.....

Stone said he would present his proposal to the Board of Supervisors July 12.

The new state would have no term limits, only a part-time legislature and limits on property taxes.

Even if Stone succeeds in getting other southern Californians to support his plan, it faces very long legal and political odds. As Bill Whalen points out, the Constitution does not allow a state’s territory to be divided without its own consent. And the admission of a new state to the Union requires approval by Congress. Obviously, the California state legislature is unlikely to agree to the secession. And even if it does, congressional Democrats are unlikely to approve the admission of a state with two new Republican senators unless a new majority-Democratic state is admitted at the same time (e.g. – Puerto Rico or the District of Columbia).

Ironically, the Constitution is far more clear about making it hard for territories to secede from a state than about the secession of states from the Union, a subject on which it is conspicuously silent. No successful secession from a state has occurred since West Virginia broke off from Virginia during the Civil War. And that secession may have violated the Constitution, since the Virginia legislature did not consent to it at the time.

This is one of those areas where I think the Constitution gets things wrong. Seceding from a state should not be easy. But it also should not be as impossibly difficult as the Constitution currently makes it. Some of our present states are probably too big, and California is perhaps the best example of this phenomenon.

Normally, dysfuctional state policies are constrained by the possibility of “voting with your feet.” If a state imposes overly high taxes, adopts flawed regulations, or provides poor public services, people and businesses will tend to migrate elsewhere, thereby incentivizing the state government to clean up its act in order to preserve its tax base. For reasons I discussed in this article, foot voters usually have incentives to be better-informed and more rational in their decision-making than ballot-box voters.

In California’s case, however, this dynamic has been undercut by the state’s size and favorable geographic location. Because California is extremely large and controls most of the warm-weather coastal territory on the West Coast, people have been willing to put up with a lot of bad policies for the opportunity to live there. Competitive pressure on the state government would be much greater if there were three or four states occupying California’s present territory instead of one.

In recent years, conditions in California have gotten so bad that the state has finally begun to experience a net outmigration to other states
of approximately 140,000 per year. And the state government has belatedly begun to reform itself, with Democratic governor Jerry Brown proposing to cut spending and abolish the state’s abusive redevelopment agencies. But these trends did not take hold until after the state had dug an extremely deep hole for itself that it will take years to dig out of. A smaller California that faced more interjurisdictional competition probably would not have become so dysfunctional to begin with. And if it did, it would have had to mend its ways sooner, since people would have started to leave earlier.

Obviously, given the existence of economies of scale in government, we would not want states that are too small. However, California and a number of other states have several times more people than many European countries whose governments function as well or better than those of other democracies, including Switzerland, Belgium, Denmark, and Sweden. Indeed, California has many more people than Canada. No serious scholar argues that Switzerland and Denmark are missing out on important economies of scale. The same goes for states such as Virginia and Massachusetts, as well as the hypothetical new state of southern California.

It’s also worth noting that secession from a state doesn’t raise nearly as many difficult moral and political issues as secession from the Union. People who secede from a state would still be under the federal Constitution and would still enjoy its guarantees of individual rights. They will also still be subject to other federal laws. So even if you are more skeptical than I am about secession from nation-states, you can still favor loosening restrictions on the formation of new states within a nation.

In a reversal of historical trends, many black New Yorkers are voting with their feet and moving to the South. In the early twentieth century, hundreds of thousands of southern blacks moved to northern cities in part to escape southern racism and oppressive Jim Crow laws. Today, as the New York Times reports [HT: Josh Blackman], the migration is going the other way:

The economic downturn has propelled a striking demographic shift: black New Yorkers, including many who are young and college educated, are heading south.

About 17 percent of the African-Americans who moved to the South from other states in the past decade came from New York, far more than from any other state, according to census data. Of the 44,474 who left New York State in 2009, more than half, or 22,508, went to the South, according to a study conducted by the sociology department of Queens College for The New York Times.

The movement is not limited to New York. The percentage of blacks leaving big cities in the East and in the Midwest and heading to the South is now at the highest levels in decades, demographers say....

The movement marks an inversion of the so-called Great Migration, which lasted roughly from World War I to the 1970s and saw African-Americans moving to the industrializing North to escape prejudice and find work.

Spencer Crew, a history professor at George Mason University who was the curator of a prominent exhibit on the Great Migration at the Smithsonian Institution, said the current exodus from New York stemmed largely from tough economic times. New York is increasingly unaffordable, and blacks see more opportunities in the South.

Ms. Brown, who spent 35 years investigating welfare fraud for New York State, may have seemed the embodiment of the black American dream in New York City.

In the 1950s, her parents moved to Harlem, and then to Queens, from Atlanta. Her grandmother was a maid; her grandfather was a brick mason. One generation later, her parents were prospering. Her father became a senior tax official for the state; her mother was an executive assistant to the state corrections commissioner.

But Ms. Brown says New York is now less inviting.....

“In the South, I can buy a big house with a garden compared with the shoe box my retirement savings will buy me in New York,” she said.

Many of the people quoted in the Times article cite the high cost of housing in New York as a major factor in their decision to depart. As Harvard economist Edward Glaeser explains, that cost is in large part the result of New York’s restrictive zoning, construction permit, and rent control policies. By contrast, Glaeser points out, many southern cities, such as Houston, impose far fewer restrictions on new housing construction, with the result that homes are far more affordable there, especially for the poor and lower middle class.

The other major complaints cited by the movers are the difficulty of finding employment in New York and the high cost of living. That too is in large part due to differences in government policy. Glaeser points out that state and local taxes are also far higher in New York City than in the South, especially Florida and Texas, which has no state income tax. The modestly higher property taxes in Texas do not come close to fully offsetting the difference.

Like their early 20th century counterparts, today’s African-Americans are “voting with their feet” for better government policies, or at least against worse ones. Obviously, today’s New York City overregulation is nowhere near as bad as Jim Crow was. But the underlying dynamic of foot voting is similar. Many of those moving may not fully understand the extent to which differences in government policy underpin the differences between the city they are leaving behind and the places they are moving to. But that does not prevent them from making effective use of information to vote with their feet in a rational way. Similarly, as I describe in this article, early 20th century blacks who moved North were able to acquire the information they needed, even despite the extremely low levels of education many of them had under Jim Crow.

Obviously, this reverse migration would not have occurred if it were not for the decline of racism in the South since the Civil Rights Movement. White racism has not disappeared from the South, but it has certainly diminished greatly. Some of the people quoted by the Times even claim that race relations in the South are now better than in New York City, though I suspect that this is far from uniformly true.

Passover is perhaps the ultimate holiday for people like me who celebrate the freedom-enhancing potential of voting with your feet. After all, it’s about people who voted with with their feet to escape slavery. Economist Arnold Kling, however, is more skeptical. He poses the following “libertarian seder questions”:

1. Why did the Egyptians not attempt to escape to freedom with Moses?

2. Why did the Hebrews not escape much sooner?

One answer to (1) might be that Egyptians were not as desperate to leave. They were not as brutally enslaved as the Hebrews.

One answer to (2) might be that the Hebrews were not so badly off under previous Pharoahs. The story reads that there arose a cruel Pharoah who made life unbearable for the Hebrews. That implies that previous Pharoahs were not so unbearable.

Both of these answers pose problems for libertarians. They suggest that for most people, freedom is relative, not absolute. Moreover, it is bound up with other issues, such as economic well-being and relative status. Perhaps the Egyptians did not feel unfree, because others were even more clearly enslaved. Perhaps the Hebrews tolerated the rule of Pharaohs as long as the dictatorship was relatively benevolent. Perhaps there are many conditions under which large numbers of people will not choose freedom.

I am a bit more optimistic than Kling. I think the Passover story suggests that both the Egyptians and the Hebrews chose the option that gave them greater freedom than the available alternatives.

The answer to Kling’s question 1 is that running away with Moses would not have made the Egyptians more free than they were before. After all, the Israelite polity led by Moses and Aaron was no libertarian or even liberal paradise. It was a repressive theocratic oligarchy. Any Egyptians who fled with Moses would not, for example, have been allowed to continue worshiping their pagan gods. If they persisted in their traditional religious ceremonies, they might have suffered the same grisly fate as those Jews who worshiped the golden calf. Given that the Egyptians, unlike the Hebrews, were not enslaved and that Pharaoh was willing to let them worship their own gods freely, I’d say that the Egyptians were more free as a result of choosing to stay than they would have been had they gone with Moses.

As for why the Hebrews did not leave under the previous, less oppressive pharaohs, the answer is that there was nowhere to go that was better. At that time, virtually any area that the Hebrews could have realistically moved to was under the control of rulers similar to the pharaohs in respect to the amount of freedom they granted their subjects. Indeed, thanks to Joseph’s influence, the Hebrews probably got a better deal from the earlier pharaohs than they could have gotten elsewhere.

Only when the new, more cruel pharaoh enslaved the Hebrews did the Egyptian government become more repressive than the available alternatives. When that happened, the Hebrews acted accordingly and voted with their feet for greater freedom. Moses was no Frederick Douglass when it came to promoting liberty for former slaves. But he was a big improvement over the new pharaoh.

Ultimately, both the Egyptians and the Hebrews chose the lesser evil among severely flawed alternatives. That isn’t the traditional interpretation of Passover. But it captures the real world experience of voting with your feet well. There is no perfect promised land out there. But being able to choose where you live is still tremendously empowering because it can greatly increase your freedom relative to where it would be otherwise.

That’s not to deny that people, including libertarians, weigh considerations other than freedom in deciding where to live. However, extensive evidence from both international and domestic migration patterns suggests that people routinely choose freer jurisdictions over less free ones, often in large numbers.

Why is this holiday different from all other holidays?

Because it’s the only one that celebrates voting with your feet for greater freedom!

UPDATE: A commenter refers me to Exodus 12:38, which states that “a mixed multitude” of other people fled along with the Hebrews. That actually reinforces my argument. After all, some Egyptians were more oppressed by Pharaoh than others, and there were surely many non-Jewish slaves in Egypt. Some of these people had it so bad under Pharaoh that living under Moses’ rule would increase their freedom, even if that were not true for the majority of Egyptians.

Cornell lawprof William Jacobson detects a potential contradiction in Republican politicians’ view on constitutional federalism [HT: Steve Bainbridge]. Many of them claim that the Obamacare individual mandate falls outside of Congress’ power, but simultaneously support federally mandated tort reform that would override state tort law:

If we are against the federal government forcing us to purchase health insurance, shouldn’t we also be against the federal government telling us which state common law remedies we can pursue and on what terms? Isn’t this a matter for the states? ...

I think there are distinctions which could be drawn between the mandate and tort reform, since tort reform does not require that one purchase a product. Most people who are against the mandate would acknowledge that the federal government can regulate the health care system, but that the mandate is a step too far....

Tort reform needs a careful airing of the constitutional issues before any vote; but at this point I’d be inclined to leave it to the states. If you don’t like your state’s tort system, do the same thing you would do if you didn’t like its tax or other systems: Move.

Federally mandated tort reform is surely permissible under current Supreme Court precedent, which allows Congress to regulate virtually any “economic activity.” Certainly, tort litigation falls within that category as currently defined by the Court, which encompasses any activity involving the “production, distribution, and consumption of commodities.” By contrast, the individual mandate goes beyond this by regulating inactivity and forcing individual citizens to purchase products they don’t want. So if your only objection to the individual mandate is that it goes beyond what current Supreme Court precedent allows, you can still consistently believe that it is unconstitutional, while federal tort reform is not.

In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any “activity.” Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward.

Federal reform is also largely unnecessary to solve the problem of excessive tort awards. Interstate competition can be just as effective as federal mandates, often more so. If a state allows excessive tort suits, many businesses will refuse to operate there or charge higher prices. This in turn reduces state tax revenue, forcing state legislatures to curb their courts. Over the last 20 years, numerous states have enacted tort reforms that do just that. Even Alabama, notorious for being the nation’s worst tort “hellhole” in the 1980s and 90s, has to a large extent cleaned up its act. Alabama ultimately replaced its pro-plaintiff state supreme court justices with ones that took a dimmer view of tort litigation. State leaders worried that Alabama would lose business if they did not. In most cases, “voting with your feet” is an excellent solution to the problem of runaway state tort law.

For a more extensive discussion of the reasons why federal tort reform is both unconstitutional and largely unnecessary, see this 2004 paper by my colleague Michael Krauss and Bob Levy. As Krauss and Levy point out, federal controls may be needed to curb state efforts to use tort law to regulate economic activity that takes place outside their borders. Voting with your feet is far less effective if the state can “come after you” even after you have left. That, however, is a limited intervention permissible even under a fairly narrow view of federal power. After all, the original meaning of the Commerce Clause was precisely to limit states’ ability to constrain interstate commerce and extend their regulatory authority beyond their borders.

UPDATE: I previously wrote about the same issue in this 2007 post.

New Zealand economist Eric Crampton has responded to my post commenting on his query about why so few libertarians move to New Zealand despite the fact that New Zealand is (slightly) freer than the United States. I actually agree with much of what he says in this post, which makes several good points. But I do have several reservations.

Eric disagrees somewhat with my claim that the difference in freedom between New Zealand and the US is fairly marginal. The points he makes are valid, but none strike me as upsetting the bottom-line conclusion. Most of them are very minor differences. For example, in an age where almost everyone has cable, I don’t think it matters very much that, in New Zealand, “South Park and HBO series air, unedited, on broadcast [TV].” Moreover, each such point can be countered by an offsetting marginal edge for the US (e.g. – New Zealand has hate speech laws). The one really substantial New Zealand advantage Eric cites is their much less aggressive prosecution of the War on Drugs. However, this difference has little effect on the lives of most committed libertarians, since the vast majority of them are middle class professionals. The War on Drugs inflicts most of its harm on the poor, especially inner city minorities. Libertarians, of course, would like to eliminate the War on Drugs even if it doesn’t affect them much personally; but moving to New Zealand won’t do much to achieve that goal. Ultimately, Eric doesn’t seem to disagree much with my conclusion that the very small differences in freedom between the US and New Zealand are outweighed by the high costs of moving.

Eric also has an interesting analysis of the residency patterns of 56 of the libertarian activists who wrote autobiographies for Walter Block’s recent book I Chose Liberty:

I took a quick flip through the contributors to Block’s libertarian autobiographies. When I could match a contributor to a US state of residence through a Google search, I did. Of the 56 I think I’ve placed correctly, ten lived in California (Mercatus score -0.413), eight in Virginia (0.275), six in New York (-0.784), six in Texas (0.346), four in Arizona (0.279), four in Alabama (0.092), and others elsewhere. The median freedom score enjoyed by this set of libertarians is 0.019. None seemed to live in the four most-free states: New Hampshire (0.432), Colorado (0.421), South Dakota (0.392), and Idaho (0.356). Lots lived in the least free state: New York.

The median... libertarian lives in a state like North Carolina (0.019) while the median American lives in a state like Delaware (-0.008). At least the difference is in the right direction; I’d feared that the median libertarian would be in a less free state than the median American because of the number of academic jobs in the Cal State and New York systems.

Unless already living in one of the most free states, it’s hard to imagine anything a libertarian can do to increase the level of freedom he enjoys that is more effective than moving.

The Mercatus score Eric refers to is this study, which rates the freedom levels of all the states, weighing economic and social freedom equally.

Eric is certainly right to suggest that most of these libertarians seem willing to trade off some degree of freedom for other goals in deciding which state to live in. As Eric recognizes, there is nothing unusual or hypocritical about that. Commitment to libertarianism or any other ideology doesn’t require people to make that the sole factor in choosing where they live. How many principled left-wing academics turn down good jobs at Texas universities on the grounds that Texas is a “red” state with very conservative policies?

That said, I think Eric’s data does in fact show a significant preference in the sample for living in freer states, though of course it’s hard to say how representative these 56 cases are.

It’s important to remember that most of these 56 libertarians are either academics or policy intellectuals. In the US, people in these professions are heavily concentrated in New York, California, and Washington, DC – three of the least libertarian jurisdictions. That makes it fairly striking that the median libertarian in this sample actually lives in a state with a higher than average freedom rating. If you compare these libertarian intellectuals to nonlibertarians with similar professional backgrounds, the difference between the two groups is likely to be very great, and at least partly explicable by the libertarians’ greater preference for living in more libertarian states. On that score, it’s worth noting that eight people in the sample live in Virginia, while virtually none live in Maryland or Washington, DC. Virginia is by far the most libertarian of the three Beltway jurisdictions, and it seems to be the home of choice for libertarians whose professional commitments require them to live near the capital (which is a common location for academics and public policy experts). For what it’s worth, this is a large part of the reason why I chose to live in Virginia rather than DC or Maryland myself.

Finally, libertarians, like other people, can disapprove of government policies that restrict freedom in ways that don’t affect them much personally. The vast majority of the libertarians in the Block sample are upper middle class academics or intellectuals. Many of New York’s or California’s most egregious restrictions on freedom don’t restrict activities that people in their class and profession are likely to engage in. It makes sense for libertarians (and others) to move in order to avoid restrictions on freedoms that they personally wish to exercise. But it’s much less logical to move away from restrictions that mostly affect other people. Such a move won’t do much to increase freedom for either the mover himself or those left behind. For example, I strongly disapprove of Virginia’s participation in the War on Drugs and its ban on gay marriage. But since I don’t want to use banned drugs or enter into a single-sex marriage myself, leaving Virginia would not increase my freedom, nor would it increase the likelihood of forcing Virginia to change.

If libertarians value liberty so much, wonders New Zealand-based libertarian economist Eric Crampton, why don’t more of them move to New Zealand?

The latest Heritage [Foundation] survey puts New Zealand again above the US on economic freedom. If we care about a bundle of freedoms rather than just economic freedom, I think NZ does better than the folks above it on the Heritage list: Australia (widespread internet censorship, thuggish police), Singapore (heavy restrictions on personal liberties), and Hong Kong (much better than Singapore?).

How much libertarianism is just cheap talk? Or, rather, what price do libertarians put on liberty? I’d outlined some of NZ’s advantages on EconLog four years ago....

We’ve ranked at or above US levels of economic freedom since Heritage started keeping score. And I’m rather sure we’re still better on civil liberties. If you want to have your junk mauled by someone in uniform, you’d have to pay for it in one of our numerous legal brothels; you don’t get it for free at the airport.

By the general axiom of revealed preference, the increment of liberty isn’t worth the loss of income (and inconvenience of moving and living abroad) for the vast majority of libertarians.

Eric Crampton is right that New Zealand may be freer than the United States right now, and that few libertarians value the difference enough to move there. But I don’t think that proves that libertarianism is just “cheap talk.” The difference in economic freedom between New Zealand (82.3 on the Heritage scale) and the United States (77.8) is relatively small. Moreover, it has often been smaller still in past years, and could easily shrink again in the future. The difference in noneconomic freedom is probably also minor, and in some areas (especially freedom of speech and gun control) may cut in favor of the US.

The real test of whether libertarians (or anyone else) are willing to move to secure greater freedom is the pattern of migration when people have a choice between jurisdictions where the difference in freedom is substantial. Here, there is plenty of evidence that people tend to “vote with their feet” for societies with greater economic freedom.

In Europe, large numbers of Germans have fled high taxes and restrictive labor regulations and moved to neighboring Switzerland, the most free market nation in Europe according to the Heritage study (now ranking slightly above even the US). Switzerland (81.9, ranked 5th in the world) beats Germany (71.8, 23rd) on the Heritage scale by a hefty margin. The Swiss have even begun to complain about an “invasion” of “arrogant and rude” Germans.

Hundreds of thousands of French have moved to Britain for similar reasons. So many that French expatriates in the UK are about to get their own representative in the French parliament, and French President Nicolas Sarkozy even made a campaign appearance in London when he was running for the office back in 2007. Not surprisingly, the gap between Britain (74.5) and France (64.6) on the Heritage scale is similar to that between Switzerland and Germany.

Here in the United States, migration patterns strongly favor states with lower taxes and levels of government spending. New Hampshire, the American state with the highest level of economic freedom, has been inundated with migrants from its more statist neighbor Massachusetts, to the point where some 25% of the state’s population consists of my fellow former Bay Staters.

All of the above cases involve people moving from one reasonably prosperous, generally market-based polity to another. Migration patterns in favor of economic freedom are even more stark when we look more broadly, and consider people who risk their lives fleeing socialist or communist states such as Cuba.

For reasons I discuss in this new article, and Part V of this older one, people often make better-informed decisions when they vote with their feet than at the ballot box (where economic liberty is, of course, much less popular). And the verdict of “foot voting” generally favors societies with greater economic freedom. In assessing that verdict, it’s worth keeping in mind that even a person who values freedom very highly might still not move if they also face high moving costs (including the cost of finding a new job and adjusting to a new culture and society). In a world with little or no moving costs, foot voting for freedom would be even more common.

To be sure, few of these foot voters are ideological libertarians. Most just want greater opportunity for themselves and their families. They don’t value economic freedom for its own sake, but the prosperity and opportunity it creates for them. At the same time, the migration decisions of people without strong ideological commitments are in many ways a stronger indication of institutional quality than those of people who do.

Obviously, economic freedom is not the only factor driving migration patterns. Proximity and cultural compatibility also matter, for example. It’s not surprising that Germans pick nearby Switzerland, where German is the majority language, and many Massachusetts residents pick neighboring New Hampshire. At the same time, it’s also significant that Switzerland is by far the freest of Germany’s neighbors, and New Hampshire by far the freest of the states near Massachusetts.

High economic freedom countries that have only recently liberalized their economies after decades of statism (e.g. Estonia and Mauritius) are not going to attract as much migration as better-established states that have had free economies for longer periods, and have had more time to build up their prosperity.

It is also fair to observe that none of the relatively freer societies discussed above are perfectly libertarian or close to it. The available evidence doesn’t allow us to gauge the appeal of a society that scored 95 or 100 on the Heritage scale rather than 81 or 82. Finally, I’m not aware of any data on whether ideologically committed libertarians are more likely to move to more libertarian polities than otherwise comparable people who adhere to different ideologies. Despite these caveats, the evidence suggests that foot voters with a choice generally opt for more economic freedom over less.

UPDATE: I should note that I don’t mean to suggest that the Heritage ratings are perfect indications of relative economic freedom. Given the methodological difficulties involved, I wouldn’t put much stock in small differences between countries of 2 or 3 points on the 100 point scale. On the other hand, I do think that large differences on the scale are likely to be valid. I don’t doubt that there really is a big difference between Switzerland and Germany or Britain and France. For what it’s worth, the rival Cato/Fraser Institute survey, which uses a somewhat different methodology, gives fairly similar ratings for all the countries discussed in the post.

UPDATE #2: I have revised this post in order to correct a few minor, but in my view annoying, phrasing and organizational flaws.

Megan McArdle summarizes the post-”snowmageddon” state of Washington, DC, which isn’t good:

You will probably have noticed that I did not post this morning. That’s because sometime before 8 am, I decided that I should get to the grocery store and pick up my lung medicine in the hiatus between snows.

Four hours later, I returned with a trunk full of whatever could be scavenged from the grocery store shelves. You have never seen a city as completely incompetent at dealing with snow as Washington DC.

I mean, two feet of snow is inconvenient anywhere. But in DC, only the main streets have been plowed. And by “plowed”, I mean that one meager lane has been cleared, so that even major arteries like New York Avenue frequently narrow to one lane. The side streets have been turned into defacto one-way streets–except that no one knows which way. The result is a lot like driving on a country road in Ireland, where you are apt to come upon someone going the other way, and then spend precious moments staring at each other until one party reluctantly backs up to a wider spot.

In fairness, a jurisdiction that gets massive snowstorms as rarely as DC can’t be as well-prepared for them as a northern city. If it was, that would be a sign that DC authorities have invested too many resources in snowstorm preparation. That said, things are a lot better where I am in northern Virginia. Until the second round of snow began tonight, the main roads were completely cleaned, and I was able to drive out to buy last minute supplies in Arlington and Falls Church with minimum trouble. Our own street (a small side street) was only just barely driveable, but still could be used. Much of the difference between DC and Virginia is probably attributable to DC’s famously incompetent municipal government. I’m very glad that I “voted with my feet” against them when I first moved to the region.

Megan also describes major shortages in DC stores. Again, things seem to be less bad in Northern Virginia. We were able to buy many things in Whole Foods and Safeway yesterday and today, though only Trader Joe’s had salad greens available. After searching several stores, I was even able to restock my supply of ice-melting salt at Bed, Bath & Beyond, which had a large supply. Apparently, many Virginians don’t realize that you can buy such supplies there.

We did have an interesting adventure trying to purchase ice-melting salt at Home Depot earlier. The salesperson there said they were all out, but advised us to come back Wednesday morning when they expect to get a new shipment in. I pointed out that another major snowstorm will be raging at that time, and asked if I might be able to come back on Thursday. He said the new supply would probably be exhausted by then. If they expect the new shipment to be exhausted that quickly, why not simply order more to begin with? The Bed, Bath & Beyond people told me that they got a new shipment in this afternoon, which leads me to wonder why Home Depot couldn’t get equally prompt suppliers.

Ultimately, however, it’s understandable that businesses, consumers, and local governments would make mistakes in reacting to such a rare event. At least in Virginia, things haven’t been as bad as I might have expected. Of course, I may change my mind once I get down to the work of scheduling makeup sessions for all the classes I had canceled this week....