James Dawson and I
have just published a new piece in the Democracy Journal entitled “Living
Under Someone Else’s Law,” which is an extension of some work I did with
Ari Holtzblatt on “The
Political Safeguards of Horizontal Federalism.” The
piece takes a counterintuitive view on spillovers, which occur when citizens in
one state pass a law that affects those in another. Spillovers are all but universally condemned
inside and outside the academy. It’s not hard to see why. It is unsettling when
one state’s policies stretch beyond its territories. No one wants to live under someone else’s law,
after all. We argue, however, that it’s
in fact quite useful for people to live under someone else’s law and that spillovers should
be understood as part of a well-functioning democracy.
As
I’ll discuss today and tomorrow, those who condemn spillovers miss two
important points. First, if you worry about
spillovers, there’s a lot to worry about.
Spillovers are ubiquitous in a highly integrated, tightly networked
system like ours. When California passes climate change regulation or Texas
rewrites its schoolbooks to question evolution or Wisconsin refuses to do
business with any company that violates federal labor law or Virginia maintains
lax gun rules, the peoples of other states are affected. Detroit automakers change their manufacturing
process to avoid losing the California market, so every state suddenly finds
itself living under California law.
School boards purchase textbooks that are more conservative than their
population and thus find themselves living under Texas’s law. Companies seeking to do business in Wisconsin
change their practices nationwide. Firearms
flood into New York via the “Iron Pipeline” even though New York has restrictive
gun regulations. When states regulate
shoulder-to-shoulder in a tight policy-making space, they inevitably jostle one
another. Regulatory overlap is a stubborn fact.
We
could surely try to turn back the clock and return to a simpler time. But the
price of avoiding spillovers is maintaining clear jurisdictional lines and
limiting policy-making domains. That
price is too steep. We’d have to give up on a nationally integrated market.
We’d have to give up on a nationally integrated political system. We might even
have to stop our citizens from crossing state lines. In the abstract, self-rule
sounds like an unalloyed good. In practice, it isn’t. Self-rule always requires
a trade-off. And when we recognize the many goods we’d have to sacrifice to
attain it—the goods associated with integration—the trade-off is less
appealing.
As
I’ll explain tomorrow, there are good reasons not just to tolerate spillovers,
but to value them. Living under someone
else’s law may seem to violate the principle of self-rule, but it’s actually a
democratic good unto itself.