states rights/language meaning
VOLOKH at law.ucla.edu
Mon Mar 16 20:29:37 PDT 2009
From: Volokh, Eugene
Sent: Monday, March 16, 2009 7:45 PM
To: conlawprof at lists.ucla.edu
Subject: RE: states rights/language meaning
If the claim is simply that we should call what people have for 200 years been calling “states’ rights” some other label, because that will facilitate analysis, that’s fine. (I’m not sure I’ll support that claim, but that’s a matter for another day.)
My point is simply that “states’ rights” is a concept that has been recognized in American law and political theory for 200 years – likely pretty much continuously from the 1780s until now -- and in English law as to nations and other entities for at least 100 years before. Perhaps it would have been better if “rights” were defined more narrowly, but they haven’t been.
I’m not sure what it means to call this simple point a “language game.” To me, it’s an assertion about the actual meaning of the word to law-knowledgeable English users for centuries. “States’ rights” have been recognized (under the definition of “rights” that I have pointed to). The concept makes perfect sense. People might want to urge a different name for it, but it seems to me that they can’t deny that the concept has existed, that it is logically coherent, and that it is hardly “idolatry” or an “ad hominem” argument to so assert.
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sean Wilson
Sent: Monday, March 16, 2009 5:34 PM
To: conlawprof at lists.ucla.edu
Subject: Re: states rights/language meaning
... alright Eugene, let's try it this way.
You say that the ancients spoke of "state's rights." And you say that "rights" are some kind of entitlement thingy. What if all that Calvin is saying to you is this: "the kind of rights states have are powers."
What would your ancients have said to this maneuver that is relevant to us? And isn't the answer "nothing" because this is a proposed "advancement" in the ideation of the thinking about the legal state -- something that happens, I imagine, in the 1800s during the period of legal formalism, "moral science," "law is a science" etc.?
I think you misunderstand the point of my 4 examples. They all support me. Let me show you. We say science is empirically falsifying conjecture (popper). The framers think, roughly speaking, that it is the regimented pursuit of the intellect to understand its world. Let us denote these as X(i) for Popper and as X(bar) for the framers. [I can't stick a bar above an X in an email; so let's just go with it. The bar is meant to denote generality; the (i) stands for "instantiation"]. The proposition "philosophy is science" for them, says "philosophy is X(bar)." For us, it is says "philosophy is X(i)." We can clearly say two things: (a) our proposition is false; (b) theirs is true; and (c) they never considered our proposition. So each of us can disagree about whether "philosophy is science" and not actually contradict each other. [By the way, I think you are wrong to say that their notion of science left our lexicon. It hasn't, really. Just take a look at all of the silly things that are called "science" today].
So the point is that these things are LANGUAGE GAMES. When they say "states rights," they mean to say "states in a federal relationship have entitlement thingys." Fine. They don't mean to say: (a) don't ever let anyone call these thingys powers; (b) don't develop a systematic understanding of where powers come from; (c) don't continue the intellectual development of the rights grammar; or (d) that corporeal (matter only) is given the liberty of conscious entities. Nothing that they have asserted is relevant to whether Calvin's formalism is a viable program.
What I have tried to get you to see is that this is in the first instance a problem about language philosophy, not dictionaries, and second a problem about the development of philosophy-of-rights in a legal system. Keep in mind what my opposition is here: I'm not against "states rights." What I am against is both originalism and the popular misunderstanding that these are linguistic matters resolved by digging up the quotes of the framing culture.
Now, maybe I can agree to an olive branch here. Maybe one can look at our post-FDR notion of "states rights" and see what similarities it has to those who talked about states rights before the power-grammar developed. What this would have to recognize is that (a) the ancients never addressed Calvin's formalism; (b) the world that birthed Calvin's formalism died with the New Deal; and (c) ours is a family resemblance idea to the liberty-side of that formalism.
Dr. Sean Wilson, Esq.
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>
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