What States' Rights?
Sheyman at kentlaw.edu
Mon Mar 16 10:23:46 PDT 2009
Jack Rakove discusses the 18th century meaning of rights in depth, and takes a position like Eugene's. See Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 291 (1996):
"Rights did not pertain to individuals alone, nor did they come neatly bundled. The people as a whole had a right to be ruled by law. Communities, corporate bodies, and governing institutions all had rights, which they exercised on behalf both of the collective groups so constituted and their individual members."
Steven J. Heyman
Professor of Law
Chicago-Kent College of Law
565 W. Adams Street
Chicago, IL 60661
sheyman at kentlaw.edu
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 3/16/2009 11:46 AM
To: Sean Wilson; conlawprof at lists.ucla.edu
Subject: [POSSIBLE SPAM] RE: What States' Rights?
Leading Americans discussing law and politics have been talking about the rights of states - and not just of nations and other collective bodies - since around the time of the Framing. Madison (1791) on the Bank Bill: "It [the Bank Bill] would directly interfere with the rights of the States, to prohibit as well as to establish Banks." 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" and "provided that the legislative right of any State within its own limits be not infringed or violated." Gov. Randolph in the Virginia Ratifying Convention: "I conceive that neither the life nor property of any citizen, nor the particular right of any state, can be affected by a treaty." On a somewhat different note, Madison writing to Jefferson: "that a State which would violate the Legislative rights of the Union, would not be very ready to obey a Judicial decree in support of them." I doubt more citations are necessary here.
So what we see, I think, is that in America from the Framing on -- and, as I noted before, in England and in America well before the Framing -- one definition of "right" was "a legal or moral entitlement to something," which could be possessed by nations, states, and other groups as well as individuals. It may well be that the underlying arguments for recognizing the right would have differed from rightsholder to rightsholder (for instance, it may well be that to Americans the moral rights of governments were derivative of the natural rights of citizens). But all were called "rights."
Nor is there anything at all illogical, contradictory, or otherwise not "ok" to use "rights" this way. It's a perfectly sensible definition, as well as being a historically acceptable one. If the claim is that using a narrower definition of rights would make various forms of legal analysis or argument clearer or more effective or what have you, I'd be happy to listen to that, though I'm always skeptical of attempts to redefine well-settled English (and legalese) terms. But it seems to me hard to deny that states have been described as having rights throughout American history, and that this broad definition of "right" is internally coherent (though not necessarily internally homogeneous).
Sean Wilson writes:
Ok, I think I've got this worked out. I had to do some thinking about this. This was nagging me yesterday. This is a language game.
Consider these two propositions:
P: individuals have rights, states have powers
Q: states have rights too.
One who asserts P is either doing one of two things. Let us call it P(1) and P(2). The first thing, P(1), simply offers us a functional language-pair. P(1) simply disciplines the brain to call what is being distributed to individuals something different from what is distributed between institutions. There are many rules of grammar and jargon that do this sort of policing. Compare: government taxes, but private entities bill. Government appropriates but companies allocate. You could crisscross these grammars and do no harm whatsoever. If you said you paid the government's bill on April 15th, you would be completely understood. Therefore, if you said "the President has rights against Congress," although you would sound like an Englishman describing the American system, you would be completely understood (and thought to be speaking colorfully). There is nothing "wrong" here in saying "institutions have rights."
But P(2), I think, is different. P(2) says something explicitly programmatic. It says, in effect, that our method for determining what states are allowed to do is different from the calculus that tells us what individuals are allowed to do. It is a juxtaposition of logics. The idea is that states gain their entitlement through what we might call "grocery-list logic" (things in their charter or constitution and what is implied from the act of charting itself). So you look at the grocery list, maybe throw in some emergency stuff, and -- bang -- there is your product. Individuals, on the other hand, have a grocery list too, but it is more fluffy and explicitly recognizes that the stuff can't be comprehensively listed. Some say it even evolves. So you have two logics here. One says: states = groceries plus emergencies. The other: individuals = time-honored essentials plus their development. Hence the dispute over what are the "rights" and where do they come from, but not a corresponding dispute about what are powers and where they come from. One is more metaphysical; the other more "down to earth."
And so, when someone asserts P(2), they are asserting that the entitlement calculus differs. They are asserting something similar to those who use property versus contract logic. This is like asking whether a covenant runs with the land versus whether a contract term is material. If there is no difference, it is just a matter of speaking. But if it is a different calculus or logic, it is a different BEHAVIOR. Therefore, whereas P(1) involves a matter of English grammar only, P(2) now becomes a matter of Wittgensteinian "grammar" (conditions of assertability). P(2) therefore says that states get only the "power logic," which is a different sort of configuration.
How does Q fit in? Well, given that the post FDR world has destroyed the utility of using "power grammar" with respect to states, one is now left only to talk with "rights grammar." There is nothing else left. Therefore, one who asserts Q simply makes a family-resemblance claim. (Pinker had an interesting assertion in Words and Rules. A fellow was trying to say whether a bar stool was a chair. His brain found it to fit the picture well enough and threw it in). And so, because states now play an entitlement game of sufficient resemblance to what individuals play with the federal creature, one says in a parlance, "states rights." Having destroyed one grammar, one simply picks up the other configuration.
Last point: Eugene raises an interesting point. He says that in an international-law context, we deploy rights logic between countries. And he says it is therefore ok to important this framework into an existing country that has (or once had) dual sovereigns. I think he is wrong on this point. Because whenever American government has had a meaningful power separation between institutions (states, feds, pres, congress), powers logic always served the needs. It is only when powers between institutions collapsed or disappeared that we then started using rights-logic. In fact, one might argue that constitutional programs are the events that birthed power logic in the first place, and that the absence of world government is the thing that causes international law to use rights-logic for states .
I have another point to make about history, but I'll try it later in the day.
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