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

Cosmopolitanism at the international level—the recognition of an international human rights regime—has been much defended of late. Little attention has been paid, however, to the federalist analogue: should there be insistence on a national rights regime? Or should variation in the recognition of rights be tolerated at the subnational level, as a necessary concession to moral disagreement, as an effort to contain problematic experiments, or as a way to generate progress about rights? This article argues that subnational variation in the recognition of rights represents a second-best solution to the problem of deep moral disagreement about rights. However, federalism provides a second-best solution only on the condition that citizens are able to move from one subnational jurisdiction to another. To the extent that citizens are able to move to rights regimes that are more favorable to them, intranational variation in the recognition of rights may have advantages over international variation, where national borders may pose barriers to migration. However, in the United States, despite the privileges and immunities of national citizenship, there remain impressive legal barriers to such mobility in the case of contested rights. Given these barriers, federalism as it exists in the United States today does not fully realize the advantages of a second-best solution to deep moral disagreements about rights.