The Volokh Conspiracy

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Volokh Conspiracy

Foot-Voting Nation

The seventh post in the Volokh Conspiracy symposium on "Our American Story: The Search for a Shared National Narrative" (ed. by Joshua Claybourn).


(Potomac Books/Univ. of Nebraska Press)

This post is excerpted from my chapter in Our American Story: The Search for a Shared National Narrative (ed. Joshua Claybourn). The full version of the chapter is available here. While I have included some links in this post, the full chapter includes far more extensive citations.

Democracy and ballot box voting have often been held up as central elements of the American political tradition. Less emphasis has been placed on the centrality of "voting with your feet." Yet in many ways, it is an even more fundamental and distinctive feature of American politics than electoral democracy.

Many nations have had democratic governments, and democracy long predates the founding of the United States. Today, many political systems are more democratic than the U.S., in the sense of giving greater power to political majorities. By contrast, few if any other nations have been so heavily influenced by "foot voting," through both internal and international migration. Both types of migration are, in most cases, forms of foot voting: the use of mobility to choose which government policies one wishes to live under.

Many nations have experienced extensive foot voting through immigration. Others have had extensive internal migration between subnational jurisdictions. Few if any, have been as heavily shaped by the combination of these two forces, as America. The nation's success is, to a very large extent, the product of the interaction between these two types of foot voting.

The Founding Fathers early on recognized the importance of foot voting through immigration as a key feature of their society, and a crucial element in the success of the new nation. Between 1820 and 1924, some 36 million immigrants arrived in the United States. The vast bulk of the American population consists of their descendants. They literally built the nation. On the whole, these immigrants found vastly greater freedom and opportunity in America than was available in their countries of origin.

Under federal law, immigration from around the world was almost completely unconstrained until the Chinese Exclusion Act of 1882, and immigration from Europe remained so until the 1920s. The Immigration Act of 1924, driven by rising nativist sentiment, greatly curtailed immigration for the next forty years by adopting strict national quotas favoring northern and Western European nations. But the Immigration Act of 1965 once again greatly liberalized immigration, if not to the near-"open borders" extent of the pre-1924 era. The result has been another major expansion of immigration from many parts of the world. Today, over 13 percent of the American population consists of foreign-born immigrants, up from about 5 percent in 1960.

The reasons why so many immigrants have come to the United States over the last two centuries vary greatly. But foot voting in favor of a better political system with more favorable government policies has been a major factor. Many of the nineteenth century immigrants came to the US in search of political, religious, and ethnic toleration, as in the case of Jews fleeing czarist Russia, Irish Catholics fleeing Britain, and many others.

The same, of course, is true of numerous modern immigrants. The cases of refugees from Nazism, Cubans, Soviet Jews, Vietnamese "boat people," and – most recently – Syrian refugees fleeing oppression by ISIS and the regime of Bashar Assad, are notable examples.

Even many "economic" migrants were, at least, in large part, choosing the US for policy-related reasons. Economic opportunity is to a large extent the product of government policy, and the relative lack of opportunity in many immigrants' homelands was heavily determined by the policies of the regimes in power there.

The role of internal foot voting in American history is almost as significant as that of international migration, though its centrality is less often recognized. Unlike immigration, domestic foot voting was not much considered by the Founding Fathers, who gave it very little attention in their otherwise extensive writings on federalism. But by designing a federal system with a high degree of decentralization and room for interjurisdictional competition, they nonetheless, created a structure with many opportunities for foot voting.

The most famous example is, of course, westward migration to the frontier in the nineteenth century, in which millions moved west to settle the vast territories acquired in the  Louisiana Purchase, the Mexican War, and other land acquisitions. But the United States also has an extensive history of other forms of internal foot voting, most notably that by ethnic and religious minorities seeking more tolerant jurisdictions.

The best-known case is, of course, the migration of millions of African-Americans from the South to other parts of the country from the late nineteenth century on through the middle of the twentieth. Other examples include the movement of the Mormons to Utah, fleeing persecution in the eastern states, and – in more modern times – the movement of gays and lesbians to more tolerant cities and states with more favorable policies. Foot voting did not, by itself, put an end to the injustices suffered by these groups. But it did enable millions of people to escape some of their worst consequences.

As with international migration, much internal migration is driven by economic factors, such as the search for job opportunities and affordable housing. But, again like international migration, economic migration is also often a form of political foot voting. State and local government policies have a major impact on the economic factors that incentivize internal migration.

Internal foot voting remains a major aspect of American society today. Some 43 percent of Americans have made at least one interstate move in their lifetime, and 63 percent have made a move of some kind, including within a state. As with immigration, internal foot voting has created enormous gains, both economic and otherwise. On the economic side, it has enabled millions to move to areas where they could be more productive and achieve a higher standard of living. These gains are so great as to be virtually incalculable.

Even more difficult to measure are the enormous "noneconomic" benefits such as those achieved by African-Americans and Mormons who escaped state-sponsored oppression, women who moved to more egalitarian jurisdictions in the nineteenth century West, or gays and lesbians to areas where homophobia was less prevalent.

While foot voting is a central part of the American story and has helped create enormous benefits, it has also often generated political backlash. At many points in the nineteenth and early twentieth centuries, immigration helped spawn powerful nativist movements, such as the Know-Nothings of the 1850s, racist backlash against Chinese immigration in the 1870s and 1880s, and the effort to curb migration that ultimately culminated in the highly restrictive Immigration Act of 1924. Donald Trump's victory in the 2016 election, after a campaign focused on hostility to immigration, may be the start of another major period of nativist backlash.

Opposition to internal migration has also been common in American history. Well-known examples include hostility to African-Americans moving into previously all-white neighborhoods, and "exclusionary zoning" regulations intended to keep out racial minorities and the poor.

The recent political backlash against immigration has coincided with a less visible, but also extensive, expansion of barriers to internal foot voting. Restrictive zoning in major cities such as New York and San Francisco has artificially inflated the cost of housing and locked millions of the poor and disadvantaged out of areas where they could otherwise find valuable job opportunities. State-based occupational licensing has also become a formidable barrier to movement.

Breaking down barriers to immigration and internal foot voting could create enormous benefits. A recent study by the National Bureau of Economic Research estimates that reducing restrictive zoning rules to the level that prevails in the median city would increase GDP by as much as 9.5%, by enabling more workers to move to areas with greater opportunity. Reducing obstacles to international migration could have even larger benefits.

Efforts to expand foot voting should, where possible, address potential costs and negative side effects.  Many claimed negative side effects of migration and foot voting are greatly overstated. Where migration does cause genuine problems, it is often possibly to address them by utilizing "keyhole solutions" that mitigate harm without restricting mobility.

More than any other major nation, the United States is defined by its history of foot voting.  It has enabled many millions of people to find greater freedom, prosperity, and happiness.  If we seek to make America great again, we would do well to build on and expand the tradition of foot voting that did so much to make it great in the first place.