Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This is part one of a two-part interview. Part Two will appear tomorrow.
book argues for the freedom of migration both within countries and across
borders. You argue that foot voting can create many beneficial effects, and
that it also promotes political freedom.
Among the key moves in your book are the twin concepts of political freedom and
decisive choice. First, you argue that foot voting is superior to other forms
of political freedom-- including the rights to vote, to petition, protest and
speak-- because foot voting allows people to make a individually decisive
choice, and because it increases the chances that people's decisions will be
well-informed. You define a "decisive choice" in terms of how likely
it is to affect outcomes for a particular individual. Could you explain how you
came to these ideas, and why they are important for us today?
Ilya Somin: Actually,
neither the idea of political freedom nor the idea of a decisive choice are my
original inventions. At least since John Locke and others back in the seventeenth
century, a variety of thinkers in the liberal political tradition have argued
that citizens should be able to choose the political system they wish to live
under, and that the legitimacy ofgovernment power depends on their consent.
scholars have long recognized that there is an important difference between
decision-making processes – such as ballot-box voting – where each individual’s
choice has little or no chance of making a difference to the outcome, and ones
where there it has a high probability of having an impact – as when people
“vote with their feet.” That distinction underpins the economic theory of public goods. It is also at the heart of the theory of rational voter
was a major focus of one of my previous books, Democracy and Political Ignorance.
contribution I tried to make in Free to Move is to bring these two ideas
together, and explain how they provide a strong case for empowering people to
vote with their feet in a wide range of settings.
When, as in most elections, an individual vote
has only a 1 in 1 million or even smaller chance of making a difference to the
outcome, it’s hard to argue that the individual voter has much, if any,
meaningful political freedom. If you have only a 1 in million chance of being
able to decide what opinions you are allowed to express, or a 1 in 1 million
chance of determining what, if any, religion you wish to practice, we would say
you lack meaningful freedom of speech and religious freedom. The same point applies,
as I see it, to political freedom.
contrast, when you can vote with your feet in a federal system, or in the
private sector, or through international migration, you are making a decision
that has a high probability of making a real difference. It’s not perfect, by
any means; I discuss a variety of limitations (and how to address them) in the
book! But it’s a lot more empowering than ballot-box voting is.
mentioned your earlier book, Democracy and Political Ignorance. I was interested in how your view
that political ignorance is a pervasive problem in modern democracies helped
influence your arguments in this book. One obvious connection between this
book and the last one is libertarianism: because the public doesn't know much
about politics, concentrated interest groups will pass unwise legislation that
undermines freedom. Foot voting is a way to escape unwise laws that impinge on
personal freedom. Are there other connections between political ignorance and
The work I did for that earlier book was a natural precursor to some aspects of
my new one.
is a common thread between the two books in several respects. Both express
skepticism about conventional democratic government, and both argue for
limiting government power in a number of ways. I certainly can’t deny that this
is part of what attracted me, a libertarian, to these topics.
But it’s worth emphasizing that neither relies
on any specifically libertarian premises to justify its conclusions. The voter
ignorance that is the focus of Democracy and Political Ignorance has
also been identified as a serious problem by prominent liberal scholars, such
as Christopher Achen and Larry Bartels, in their important book Democracy for Realists. Your Yale Law School colleague
Dan Kahan and his coauthors have done great work showing that people process
information in a much less biased way in non-political contexts than in
contexts where the information is primarily relevant to assessing policy issues
for purposes of being a better voter.
relevance of political ignorance to foot voting and political freedom –
explored in detail in Free to Move – also doesn’t rest on uniquely
libertarian foundations. It is relevant from the standpoint of any theory that
values political choice and the idea of government by consent. The American
Medical Association requires doctors to get a patient’s“informed consent” before they can treat him
or her. Government policy, like medical care, is also often literally a matter
of life and death, as we have all seen during the coronavirus pandemic and the
current civil unrest triggered by abusive police practices.
widespread voter ignorance ensures that current democratic government rarely,
if ever, has anything approaching the informed consent of the government. Most
Americans cannot even name the three branches
much less know what their policies are and their likely effects.
currently constituted, our government is like a doctor whose ministrations you
cannot refuse and whose effectiveness we don’t know enough to judge; rationally
ignorant voters often can’t separate out effective treatments from snake oil.
That should trouble us whether we are libertarians or not.
would add that the advantages of foot voting over ballot-box voting analyzed in
the book apply to a wide range of theories of political freedom, including
those developed by progressive political theorists, such as the ideal of
political freedom as “non-domination” (discussed in Chapter 1).
JB: I suspect that some readers will think that there are important
differences-- in terms of advantages and disadvantages-- between the right to
move freely between different parts of a country, and the right of free
migration between different countries. One of the goals of your book is to show
that the advantages and disadvantages are more similar than people on the left
and the right generally think. Could you explain why?
Highlighting the similarities between these types of foot voting is one of the
main purposes of the book! I started my career as a federalism scholar,
focusing in large part on foot voting within domestic federal systems. But over
time, I came to see that international migration was, if anything, an even more
important example of foot voting. Both international and domestic freedom of
movement enable people to choose the government policies they prefer to live
under. Both can greatly increase freedom and opportunity of all kinds for large
numbers of people, particularly the poor and disadvantaged. And both enable
people to make decisive and well-informed choices to a greater extent than
ballot-box voting does. I expand on these similarities much more fully in the
there is a difference, it’s that international migration offers even greater
opportunities for expanding political freedom than the domestic variety. The
difference between whatever you think is the best US state and whatever you
think is the worst is substantial; but it’s minor compared to that between the
US and Mexico, to say nothing of the US and Venezuela, or the US and North
Korea. International migration empowers people to fundamentally transform their
lives for the better in a way that is rarely achieved by any other social
process or policy change. Think of people escaping poverty and oppression under
brutal dictatorships, ethnic and religious minorities fleeing persecution, and
women fleeing patriarchal societies, among many other examples.
one-third of the world’s people live in authoritarian states where
international migration is their only chance of exercising any political choice
at all.They don’t even have the
one-in-a-million chance of influencing government policy that ballot box voting
virtually all the standard arguments for restricting international migration
also apply to internal migration, such as claims that migrants might vote for
bad policies, increase crime, spread bad cultural values, overburden the
welfare state, or compete with natives for jobs. All of these can easily be
used to justify barring Californians from migrating to Texas or West Virginians
from moving to Virginia. After all, people moving from poor state to a wealthy
one could potentially compete for jobs, get on welfare, increase crime, and so
on. Such arguments were in fact used to justify restricting interstate
migration by African-Americans and “paupers” in the nineteenth century. I go
into these parallels in more detail in Chapter 6 of the book, where I also
describe a variety of ways to address these issues without restricting migration
– either domestic or international.
JB: Foot voting requires that the state you leave is no longer able to regulate
you. If you leave for tax reasons, then it's important that the country you
leave can't still tax your operations (or tax them as much). Doesn't your
argument for foot voting depend on a certain conception of limited jurisdiction
of states and countries? You can never avoid all of these externalities, of
course: even if you leave the United States or Russia, you are still affected
by its foreign policy and its nuclear arsenal.
It's true that foot voting is of little use if the government you leave behind
can continue to control your life. Fortunately, most governments are in fact
severely restricted in their ability to impose their rules and regulations on
people who do not live or work within their territory. At least as a general
rule, if you leave a particular regional or national government, they can no
longer tax you, regulate you, or otherwise impose their will.In that respect, if not in some others, my
ideas are actually congruent with dominant status quo conceptions of the limits
of state sovereignty.
issue of extraterritorial taxation is one I did not cover in the book, but
probably should have. The US is one of a tiny handful of nations that taxes citizens’ income
regardless of where they live and where they earned it. That much-criticized
policy should be abolished. But even if it remains in place, leaving the US
still allows you to escape the reach of the vast bulk of US laws. And even the
extraterritorial taxation can be avoided if you are willing to give up US
JB: Some kinds of problems that affect our lives-- for example global warming,
or nuclear proliferation-- don't seem to be easily solved by foot voting. It's
hard to outrun them. Do you think that ease of migration might nevertheless
help with these kinds of problems?
It’s true that there are some issues that are so large-scale that they can only
be handled – if at all – on a global level. Global warming is probably the best
example. But the vast majority of public policy issues aren’t like that.
Indeed, most can be more decentralized than is currently the case. If, for
example, Switzerland or Denmark can have their own education policies, health
care policies, and retirement policies, the same goes for the many US states
with comparable or larger populations. We can also decentralize more issues to
the level of the private sector, to such institutions as private planned
communities, discussed in Chapter 4 of the book.
migration can also indirectly help address some of the few issues that really
do require global solutions. Economists estimate that full open borders
throughout the world would roughly double world GDP by enabling large numbers of
people to move to places where they can be more productive.There are also large economic gains to be had
from expanding internal freedom of movement within the United States and other countries
by,for example, cutting back on exclusionary zoning.
wealthier world is one that would have vastly more resources available to deal
with global warming and other difficult international problems. In fact, as
discussed in Chapter 6, increased societal wealth is a crucial element in
addressing a wide range of environmental issues.
JB: How should we think about your thesis in the context of our current
pandemic? Migration from state to state or country to country can spread
infection. One of the first things many political leaders did was to limit
migration. If there will be more pandemics in our future, how should we think
about the proper boundaries of the rights of free migration?
I wrote the book before the pandemic hit, and it’s fair to say I did not
anticipate it. However, in Chapter 6, I did outline a general three-part
framework for addressing consequentialist justifications for restricting
migration, one that I think applies well to the pandemic situation:
we should ask how serious the problem really is and whether migration
restrictions can do much to solve it. Many of the standard objections to free
migration are significantly overblown. If there is little or no problem to
begin with, we should not be willing to restrict migration to “solve” it. Ditto
if there is a real problem, but migration restrictions are unlikely to improve
where migration creates genuine problems, it is often possible to deal with the
issue by means of “keyhole solutions” that minimize the risk without
barring migrants. Instead of applying a meat cleaver that undermines political
freedom and inflicts great sacrifices on potential migrants, it is better to
apply a scalpel.
where keyhole solutions are inadequate, policymakers shouldconsider tapping the vast wealth created by
expanded migration to mitigate negative side-effects that cannot be addressed
in other ways.
framework can work for pandemics, as well as a variety of other issues covered
in the book. Here’s how:
coronavirus is a genuine problem. But it is notclear that travel restrictions can do much to
slow its spread,
especially when there is already extensive “community spread” in the destination country. Restricting
international freedom of movement is unlikely to do much to prevent pandemics,
unless perhaps we can truly hermetically seal one society from another. Pandemics
such as the “Black Death” devastated the world in even in eras when the vast
majority of people were peasants or serfs who rarely left the villages where
they were born.
the extent that migrants from regions with severe disease outbreaks pose a
danger, there is a keyhole solution: impose a 14 day quarantine on entrants,
as has been done by South Korea, which has done a far better job
of constraining Covid 19 than the US. By that means, migrants can be isolated
until it is clear they do not have the virus or are no longer contagious.
14-day quarantine may be a deal-breaker for tourists or short-term business
travelers. But, for most migrants, it is a small price to pay for the
opportunity to live in a society with greater freedom and opportunity.
the vast wealth and innovation generated by free migration can help protect us against future
pandemics far better than migration restrictions could. Wealthier societies are also
healthier societies, because they can afford better public health systems, and
generate more medical innovation. In addition, immigrants are
disproportionately represented among the medical workers and scientists whose
work is crucial to both dealing with the current pandemic and curtailing future
don’t deny there can be situations where short-term restrictions on both
international migration and internal freedom of movement can potentially be
justified in order to halt the spread of disease. I do not advocate an absolute right of freedom
of movement, merely a strong presumption in favor of it. But, as a general
rule, free migration is actually good for public health, and potential negative
effects can be mitigated by keyhole solutions. I discuss these issues in
greater detail here.