What States' Rights?
VOLOKH at law.ucla.edu
Sun Mar 15 15:34:43 PDT 2009
Ray Kessler writes:
(2) Also, I think we all agree that in its original form, in the
Anglo-American legal system, the concept of "rights" only applied to
individuals (e.g. Magna Charta, English Bill of Rights of 1688 (?)).
This is a historical assertion, and perhaps it's correct, but I
wonder what the support for this is. As I mentioned, by the 1600s,
English publications spoke of the rights of nations. Locke wrote of the
rights both of the people and of princes. Perhaps there was a time
before then that "the concept of 'rights' only applied to individuals"
in the English legal system (never in the American legal system), and
perhaps in English political theory. But what reason do we have to
actually believe this as a historical matter?
(4) However, IMHO, using that analogy muddied the waters and
created an oxymoron (in light of the original def. of "right" being
limited to individuals.) I still contend that in our Anglo-American
tradition, prior to the American Revolution, when people perhaps started
thinking about how they would put together a new government composed of
previously sovereign "states" (nee colonies), became worried about the
fate of the soon-to-be states in a soon-to-be federal system, started
looking around for arguments and concepts to protect the states and
created the oxymoron of "states rights."
Again, what's the historical support for this historical
assertion? By the Revolution, talk of the rights of nations was
routine; I would think the rights of states in a federal union would be
a logical application of that well-established principle, not something
you need to "look around for" or something that "muddied the waters."
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