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Friday, November 22, 2013

Interesting Somin Post on Federalism and Rights

An interesting post--I think it's by Ilya Somin [see update below], although it appears at Concurring Opinions, which would be unusual for him--on the Elane Photography case. Its basic point, to put it rather briefly and bluntly, is "New Mexico: Love it or leave it." As he writes:

If Huguenin wants to turn a profit in the economic atmosphere the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.

I appreciate the strong argument that our interpretation of constitutional rights should be influenced by conditions of federalism. For reasons that have been well stated elsewhere, as in this article, I don't think "voting with your feet" is an adequate substitute for or response to the side-constraints on law provided by individual constitutional rights. But I'm grateful for his willingness to make this argument. 

[Update: I am told the author is actually Richard Storrow, although given the author's strong emphasis on voting with your feet as a remedy in rights cases, I still think my confusion was understandable.]

Posted by Paul Horwitz on November 22, 2013 at 11:11 AM in Paul Horwitz | Permalink

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I did not write that post.

Posted by: Ilya Somin | Nov 22, 2013 11:36:03 AM

Correction! Richard Storrow wrote it. My apologies.

Posted by: Paul Horwitz | Nov 22, 2013 11:38:18 AM

No problem. But I hope you will correct the original post.

Posted by: Ilya Somin | Nov 22, 2013 12:02:53 PM

Yes, that doesn't really quite sound like Somin.

Posted by: Joe | Nov 22, 2013 12:35:01 PM

Am i the only one who sees "posted by Richard Storrow" at the top of the linked post? or was that added late?

Posted by: andy | Nov 22, 2013 3:03:30 PM

It's that small type, andy.

Posted by: Joe | Nov 22, 2013 4:30:05 PM

Either way, it's still an informative and great post!

Posted by: James Templeton | Nov 22, 2013 4:57:03 PM

It's clear to me that Horwitz didn't really think Somin wrote the post. Rather, Howritz was being tongue-in-cheek to show that Somin's "voting with your feet" theory conflicts with his libertarian, rights-maximalist tendencies.

Posted by: Litigation | Nov 23, 2013 12:23:48 PM

It could have been an honest mistake. Or, if I was being tongue-in-cheek, it might have been about the CoOp post rather than Ilya, by way of suggesting that it was odd that what looked like a (particular) rights-maximalist post by a civil libertarian was using the voting with your feet idea to suggest that if people don't like New Mexico's legal regime they can move elsewhere.

Posted by: Paul Horwitz | Nov 23, 2013 12:27:27 PM

Does "voting with your feet" contribute to "Political Ignorance"?

Posted by: Shag from Brookline | Nov 24, 2013 8:52:21 AM

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