Constitution in 2020 Liveblog Panel 6- Localism and Democracy

October 3rd, 2009

Panel Six:
4:30 – 6:30   Localism and Democracy
Moderator:  Judith Resnik, Yale Law School
Commentator:  Heather Gerken, Yale Law School
Panelists:  Ethan Leib, University of California Hastings School of Law; Rich Schragger, University of Virginia School of Law; Ilya Somin, George Mason University School of Law; and Ernie Young, Duke Law School

*I’ll begin by laying out my clear bias to Ilya Somin, one of my favorite professors at Mason, and a friend. Ilya is a loyal fan of the greatest baseball team, the New York Yankees, and heaps praise on the Steinbrenner’s deft rational rent seeking to construct the nicest baseball stadium in the country with the least amount of private funding.

Ilya Somin

Federalism and voting with your feet. Voting with you feet valuable in American federalism. If you are disastisfed with your local jurisdiction, you can move to another area.

Benefits of voting with feet over ballot-box: (1) Incentives to obtain information. When you vote, incentive to be rational ignorant. (2) Voting with your feet valubale to groups that are politically weak and lack influence on society. Example- migration of African Americans from hostile South to North.

Why voting with feet more important now:

1. costs of transporation has gone down- economic activities avialable in more places

2. more information than ever to learn about different living conditions in different areas

3. federalism and decentralization- no loyalty to localities

Dangers that threaten federal system, voting with feet only effective where variation of policy between states. With one size fits all federal policy, less likely voting with your feet will be effective. Growing state dependence on federal grants frustrates this. Previously state govs had to raise money themselves through tax payers- incentives to innovate and create economic growth. Today, dependence of states on federal funds (20% of states reliance on federal funds  in 2007 to 25% today). In many countries, if states get $ from central gov, diminishes incentives to improve.

Today almost every aspect of life is controlled by the federal government.

Public opinion is not reliable ally becuase they no longer feel attachment ot concept of state autonomy.

Judiciary can only do limited amount. Although general public does not feel attachment to state government, Texans excluded (and what about Red Sox nation?). Political approach to constraining this better. Less politics of hope, more politics of fear. In long run, hope that can be attached to preserving ability to vote with feet.

Ilya Somin

Ilya Somin

Ernie Young

Not many conservatives have managed to sneak into this conference. Amen.

Disagrees with Somin. Sticky states- states with high level of loyalty. Loyalty over exit. Ilya wants slippery states.

Too much loyalty defeats Ilya’s vision.

Do we have enough stickiness? Do we have enough identity? Is there a meaningful attachment to the federal structure that we have?

What is relationship between one level of identity and another. If you get too excited about state, commit treason. Not necessarily, Young said.

Rich Schraeger

Focus on federalism, and the cities. Cities have adopted many progressive ends; same sex marriage, minimum wage, environmental regulations, housing development, etc. Cities engines of economic growth.

You can’t have local decentralized governments regulating giant transnational entities. Self government is not possible when government or business becomes too big.

Mid-twentieth century association of decentralization with states right only part of the story. Read, decentralization doesn’t have to be conservative.

Ethan Leib

Tells Sandy [Levinson], we won’t have a constitution in 10 years, no matter how many blog posts you write. LOL.

Process calling for constitutional convention in California.

Do people always retain the right to call a constitutional convention? Common law constitutional convention- extralegal.

Lieb spoke of the low level of discourse in San Franciso. Some issues he deals wiht:  shutting down alcatraz shut down, turning it into an island of peace and tranquility. naming a garbage dump after George Bush (applause). a nudist running as a candidate for city council. level of discourse is not too high in san francisco. Lieb is a Bushie when teaching constitutional law. Does not like staring at 85 people thinking the same thing. He should come to Mason!

Heather Gerken

Federalism has long been code word for letting racists be racists. Proponents of racial justice should take fresh look at federalism, and federalists should take new look at racial justice. Federalists often have to explain federalism apologetically.

Future federalism beyond integration/segregation, majority/minority districts, etc.

Federalism and first amendment promote the same values.

Judith Resnik

Affiliation, and how we identify ourselves, is essential to concept of federalism.


Is voting with your feet viable?

Political change can happen in the sense that big major shifts in policy. Important thing is not that people will move easily, but state government officials know that if they screw up badly, they will trigger an out-migration, and gives them incentives to do better. Easier to vote with your feet even if you have to do it more often based on modern circumstances.


5 biggest problems facing society solved by nationalism. Everything else should be solved by federalism.

  1. Econonic Justice- need to equalize economic inequality
  2. Militariasm- important problem
  3. control of mobile capital-
  4. global warming- big cities can’t take a stand, need to control national government
  5. federal abortion right

Ilya ackowledges that he is not in favor of localities, like California addressing global warming, but is not ready to acknoweldge that national governments and international governments can address ManBearPig.

Ilya Somin

Ilya Somin, Ernie Young, Judith Resnik, Heather Gerken , Rich Schragger, Ethan Leib