My new article on “How judicial review can help people vote with their feet”

I recently posted on SSRN a draft of my upcoming article on “How Judicial Review Can Help People Vote With Their Feet.” It is part of a symposium organized by the Institute for Justice on the theme “Does the will of the people exist?” The article is available here. Here is the summary:

For decades, critics of judicial review have argued that it inhibits the will of the people, expressed through laws and regulations enacted by democratically elected officials. Thus, according to them, it should be used sparingly, if at all. This critique implicitly assumes that the political freedom of the people is best expressed through voting at the ballot box. We elect government officials and thus decide the government policies under which they wish to live. Judicial review must therefore be kept within strict limits, if not totally eliminated, in order to avoid undermining democratic autonomy. This article challenges this assumption and suggests instead that political choice is often better expressed by foot voting than by ballot box voting. This, in turn, strengthens the case for strong judicial review in a range of areas.

People can vote with their feet through international migration, choosing which jurisdiction to live in in a federal system, and making decisions in the private sector. All three types can be reinforced by judicial review. Instead of a single collective “people’s will”, foot voting allows individual members of the public to pursue a wide range of political preferences. As a result, it allows many more people to live by the policies they prefer and reduces the disadvantages faced by minorities.

Part I of this article summarizes the advantages of foot voting over ballot box voting as a mode of political choice. In particular, voting on foot enables individuals to make decisions that are more likely to have a decisive impact in determining the policies they pursue and more likely to be well-informed. It also offers a wider range of choices for people with minority preferences. Part II gives a brief overview of the three types of foot voting. Part III discusses how judicial review can empower foot voting within a federal system by imposing structural constitutional limits on the extent of federal government power. Part IV describes how judicial oversight can improve walking voting in the public and private sectors by enforcing individual rights that make walking voting more feasible and efficient. Finally, Part V examines how judicial oversight can improve foot voting through international migration.

Foot voting is not the only factor in determining the appropriate level of judicial review in a constitutional system. But it is a crucial question that is often overlooked in debates about the role of the judiciary in a democratic society.

This article builds on my previous work on political ignorance and counter-majority difficulty, as well as parts of my book Freedom of movement: voting on foot, migration and political freedom. There will likely be considerable editing before the article is published. So I look forward to feedback from academics and others.