states rights/language meaning

Mon Mar 16 16:29:24 PDT 2009

            I should think that items 1 and 2 would be excellent examples for my point – “science” at the time had a meaning which included knowledge generally.  (Samuel Johnson’s Dictionary, 1790 edition, gives five meanings: “knowledge,” “certainty grounded on demonstration,” “art attained by precepts, or built on principles,” “any art or species of knowledge,” and “one of the seven liberal arts, grammar, rhetoric, logick, arithmetic, musick, geometry, astronomy.”)  This is also, I believe, the standard interpretation of “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  “Useful Arts” was to be promoted by awarding patents for Discoveries by Inventors.  “Science” was to be promoted by awarding copyrights for Writings to Authors, and this was to broadly advance knowledge and not just what we now refer to by “science.”  

The difference between this meaning of “science” and the meaning of “rights” as “legal entitlements” (or sometimes moral entitlements) is that the broader meaning of science is now obsolete.  The use of “rights” to mean “legal or moral entitlements” (which could be possessed by groups as well as individuals) has been in continuous American use, to my knowledge, from before the Revolution to the present.

            As to item 4, it wasn’t just the anti-Federalists who talked about states’ rights – Madison and Hamilton (in Federalist No. 81) talked about it, too.  Several of my earlier examples were quotes from Madison and Hamilton, so it surprises me when I’m faulted for supposedly relying on anti-Federalists.  This leads me to think that lots of people during that era, anti-Federalists and Federalists alike, used “rights” to mean “legal or moral entitlements” that could be possessed by states, nations, and other collectives and not just by individuals.

            So I continue to be puzzled by why my argument is a “fallacy,” or reeks of “cultural idolatry,” or is “ad hominem” or what have you.  I’m making an assertion that “right” was a word that had a particular meaning, and I’m introducing evidence from a wide range of users that used it this way.  If you have evidence that the overwhelming majority of knowledgeable users of the English language at the time rejected that meaning, then I’ll be happy to concede error on this.  But so far the only actual evidence we’ve seen, I think, is that quite a few pretty prominent and competent users of the English language treated “right” as having that meaning.  Given this, I don’t see anything fallacious, idolatrous, or otherwise unsound in assuming that they had a good grasp of what that word actually meant at the time they used it.

            Eugene

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Monday, March 16, 2009 3:53 PM
To: conlawprof at lists.ucla.edu
Subject: states rights/language meaning

Eugene:

Here's the problem. 

1. The framers said philosophy was science. Therefore, (a) philosophy is science; or (b) philosophy was a "science" back then.

2. The framers said politics was a science. Therefore, (a) politics is a science; or (b) politics was a "science" back then. 

3. The framing culture often said X wasn't a "citizen." Therefore, (a) X is not a citizen; or (b) X was not a "citizen" back then. 

4. The anti-federalists said "states have rights." Therefore, (a) states have rights; or (b) they did back then.

These are fallacies. Both (a) and (b) of each proposition is flawed. The problem has absolutely NOTHING to do with definitions and everything to do with sense of reference. These problems are largely philosophical -- what is science, what is politics, what are rights, what is citizen? These involve complicated systems of thought that evolve as thought ideation develops (becoming more refined) 

Language is not a picture. Hence, what the framers called "science" is not as refined as what we call it, and when the framers used this word, they never meant to (and never did) contradict our claims that "philosophy is not science." In fact, when the framers say that philosophy is science and when we say it is not, neither of us are actually disputing anything. We are talking past ourselves and are stung by the language game. Also, for one to say that philosophy was "science" back in the day, we would have to put the word in quotes (to denote that it is only a parlance). [you will note that all (b)'s end with quoted words above].

Take the word "citizen." We see it as a dichotomy: either you're in, or you are an immigrant. Some uses of this idea in early American history had a third alternative: a non-immigrant (i.e., a member) who lacked participatory prerogatives. (I believe they used the word "denizen"). This would be logical given that America is really the first on the planet to have "citizens" (excluding arguments about antiquity). So if one were to ask whether X was a "citizen," one would introduce a game. Do you mean denizen or do you mean someone here on a visa? 

When Calvin and Ray tell you that states don't have "rights," you cannot refute them by quoting Anti-federalists. This is an ad hominem. It says that arguments are made more valid by people, not premises. It says that whatever the framers say must make the argument correct. It also wreaks of cultural idolatry. The better idea is to understand the following:

1. Calvin and Ray are either offering you a formalism (a program for rights) or a speaking etiquette (a nothing). If they are offering you a formalism, you would would judge it by its own logic and by the value of using formalism generally in jurisprudence. You would not go to the dictionary, then or now.

2. When anti-federalist say "states have rights," do they mean:

(a). the people in those states? 

(b)  "rights" and  "power" are interchangeable? Depending upon what "rights" they are referring to, it might be the same as the statement "states have powers," so that all that exists is a language game. Note that if their use is interchangeable with "power," their lexicon may be either unaware or undeveloped of Ray and Calvin's formalism, or they just might be speaking colorfully. You will note that it would not be uncommon to find formalistic notions that emerge in American constitutionalism that POST-DATE framer ideation. Notions become more refined as time goes by.    

(c). that non-living corporeal entities, like corporations (and fetus and animals by extension) have rights? (That is, what is their PHILOSOPHY of giving rights to non-conscious entities? If they don't have coherent views on this, we would reject them, not lionize them).

Got to run now.

Regards

Dr. Sean Wilson, Esq. 
Assistant Professor

Wright State University

New Website: http://seanwilson.org <http://seanwilson.org/> 

Daily Visitors: http://seanwilson.org/homepagelucy.html

SSRN papers: http://ssrn.com/author=596860 <http://ssrn.com/author=596860> 

________________________________

From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: conlawprof at lists.ucla.edu
Sent: Monday, March 16, 2009 12:51:35 PM
Subject: The meaning of words

            I’m certainly not comfortable inferring from Jefferson’s statements to what is morally or legally sound.

            But if Jefferson, Madison, and lots of other people in the late 1700s – and in the centuries sense – used a particular term in a particular way, that is strong evidence of the meaning of the term.  In this instance, it is strong evidence that the meaning of the term “rights” has never (at least in American history) been limited to “natural rights of individuals” or “legal entitlements of individuals” or “legal entitlements of individuals or nations but not states.”  Rather, it has generally meant something like “legal or moral entitlements,” and was applicable to a wide range of groups, including states.  Therefore, states have rights in the simple sense that, under the meaning that the word has had to educated (including legally knowledgeable) speakers of English throughout American history, “rights” has meant “legal or moral entitlements” of the sort that states, among others, could have.  

Whether states should have such legal entitlements, or whether it would be better for some reason if we were to stop calling them rights, or what the scope of the rights ought to be, are indeed a different matter, and one on which I express no opinion here.

Eugene

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