What States' Rights?

[Raymond Kessler]

Great discussion.  Wish I had time to do the research to answers some of the questions, but I have a real-world job that always seems to be getting in the way.

 

Ray Kessler

Prof. of  Criminal Justice

Sul Ross State Univ.

 

 

 

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Francisco Forrest Martin
Sent: Monday, March 16, 2009 8:16 AM
To: conlawprof at lists.ucla.edu
Subject: Re: What States' Rights?

 

States (as well as individuals and nations) DO have rights, according to Vattel and Blackstone. The Framers used both Vattel and Blackstone in drafting the Constitution. Why waste anymore time on this issue?

Francisco Forrest Martin

-----Original Message----- 
From: Sean Wilson 
Sent: Mar 15, 2009 8:41 PM 
To: conlawprof at lists.ucla.edu 
Subject: Re: What States' Rights? 




Eugene:

 

The question is whether Ray's assertion is a formalism (a logic) or merely a speaking convention. We can only know this by asking Ray (or whomever) what Court decisions would come out differently if we followed the idea that states only had powers, not rights. If Ray is, in fact, offering a formalism, whether it is good logic would first be a matter of: (a) whether we believed in formalist jurisprudence at all (some might think this whole way of reasoning about law faulty); (b) whether its logic was contingent upon something important (such as a real commerce clause and matters internal to a single nation). All of these matters are more important than who spoke what, when (for both of you). [I realize he made the historical assertion first].

 

I think the most prudent answer to the puzzle is to see "states rights" as being neither a breach of speaking etiquette, nor an idea rendered impossible by a formalism. The third option that I suggested is the best: it is a family resemblance idea, that's all. In fact, remember that case where Scalia says that the feds cannot commandeer state agents to do their gun checks? (I don't remember the name or the facts well -- haven't looked at it in years. But I know you know what I am trying to refer to here). This case is clearly an extension of individual rights logic to states. The idea is one of "bodies:" that the federal organ cannot use the state organ that way. 

 

Note that if one were in a governmental system where states didn't exist, there would be no basis in "power logic" to say that a central apparatus could not command a local one. It wouldn't even be an issue. Note also that if we had a meaningful section 8 arrangement, one would simply consult the "my powers-your powers" arrangement to answer the question. That also would rely upon the same sort of logic. But because states are now run over, all that is left is family resemblance. All that is left is to say the state gets a discreet practice, X, just like gays do (e.g., sodomy). So we have, in effect, "states rights" today because, well, the powers logic doesn't really work in the post-FDR world.

 

As to Locke and the others that you cite, we probably would need to be careful about what is political rhetoric, what is being said poetically, etc. Much of what you say about referring to rights of states in the international law world seems to me to be referring to the people of one state against the people of another, not a corporeal body. (But I haven't thought about it much).

 

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: Sunday, March 15, 2009 6:34:43 PM
Subject: RE: What States' Rights?

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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