Apropos the rights of governments
stevenjamar at gmail.com
Sat Mar 14 11:33:25 PDT 2009
are there not at least 3 uses of many terms we use in the law: legal,
are we not normally talking in political terms when we use a phrase
like "states rights"? "rights" in this context does not necessarily
mean a claim or privilege or immunity enforceable in court.
the term "human rights" generally refers to claims or entitlements or
demands that attach to each person by virtue of being human. but the
so-called economic and social rights are often not enforceable in
court -- or at least not in the U.S.
No doubt some take the Reaganesque approach and say they are not
therefore really rights, but that is nothing but a formal assertion
using a particular semantic understanding of the content of the word
"rights" which is itself contested even within the legal discourse
community, and certainly is not universally recognized as the "right"
use of the term outside legal discourse.
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute of Intellectual Property and Social
Howard University School of Law fax: 202-806-8567
Hope has two beautiful daughters. Their names are anger and courage;
anger at the way things are, and courage to see that they do not
remain the way they are.
-- Augustine of Hippo.
On Mar 14, 2009, at 1:12 PM, Kurt Lash wrote:
> There is an important doctrinal issue hiding in this talk about
> states "rights."
> We presume the term refers to some kind of privilege or immunity
> that can be vindicated in a court of law. If states (or, better,
> the sovereign people in the states) retain rights, then these rights
> ought to be judicially enforceable. Put another way, if we follow
> the historical understanding of states rights, the Supreme Court's
> reasoning in Garcia is incorrect.
> Kurt Lash
> James P. Bradley Professor of Constitutional Law
> Loyola Law School, Los Angeles
> ----- Original Message -----
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> Date: Saturday, March 14, 2009 10:02 am
> Subject: Apropos the rights of governments
> To: conlawprof at lists.ucla.edu
> > 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
> > 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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