Apropos the rights of governments

[Volokh, Eugene]

By the way, from the Articles of Confederation:
 
Each state retains its sovereignty, freedom, and independence, and every
power, jurisdiction, and right, which is not by this Confederation
expressly delegated to the United States, in Congress assembled.
 
The United States in Congress assembled, shall have the sole and
exclusive right and power of determining on peace and war, except in the
cases mentioned in the sixth article
 
The United States in Congress assembled shall also have the sole and
exclusive right and power of regulating the alloy and value of coin
struck by their own authority, or by that of the respective States ...
[and] regulating the trade and managing all affairs with the Indians,
not members of any of the States, provided that the legislative right of
any State within its own limits be not infringed or violated
 
Plus, of course, we have to recall the talk of "The Rights of the
British Colonies" in the decades before the revolution.  I think it's
fair to say that, ever since the founding of the United States, the word
"right" has included legal (or perhaps moral) entitlements of
governments as well as of individuals.  Maybe it shouldn't have; maybe
it would have been conceptually sounder or ideologically better for
American law not to take this view.  But historically, it seems to me
hard to deny that "right" has had this meaning throughout American
history, and likely (given the pointers I mentioned in my earlier
message) for at least a century before, if not more.
 
Eugene
 
 
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