'Rights' and states—more on the flexibility (good and bad) of English words

|The Volokh Conspiracy |

Writing again about "republic" and "democracy" reminded me of another linguistic distinction that I often see in political arguments: The claim that states can't have rights—people have rights, the argument goes; states can only have powers.

Well, I will certainly agree that the rights of people can be distinguished in many ways from the rights of states. Humans have human rights directly, for instance; organizations of humans (whether states or corporations or churches or newspapers or advocacy groups) would have similar rights only derivatively of the humans' rights.

But if you're speaking of the English word "right," it has long been used to refer to legal or moral entitlements of states (and nations)—as well as of government branches—and not just of individuals. Federalist No. 46 refers to "the rights of the individual States." Federalist No. 43: "Whenever the States may choose to substitute other republican forms, they have a right to do so." No. 43 also speaks of the federal government's power with respect to states: "Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government…. The existence of a right to interpose, will generally prevent the necessity of exerting it." Federalist No. 51 discusses the rights of branches of government; so does Federalist No. 77.

Early Supreme Court cases likewise speak of the rights of nations and of states. In M'Culloch v. Maryland (1819), for instance, Justice Marshall says, among other things, "The Government which has a right to do an act and has imposed on it the duty of performing that act must, according to the dictates of reason, be allowed to select the means." "The Government which has a right to do an act and has imposed on it the duty of performing that act must, according to the dictates of reason, be allowed to select the means." "The people of a State, therefore, give to their Government a right of taxing themselves and their property." "[T]he means employed by the Government of the Union have no such security, nor is the right of a State to tax [those means] sustained by the same theory." "We have a principle which is safe for the States and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy between a right in one Government to pull down what there is an acknowledged right in another to build up; from the incompatibility of a right in one Government to destroy what there is a right in another to preserve." I could offer many more examples. [UPDATE: I added the M'Culloch quotes, just to illustrate my assertion about early Supreme Court cases.]

Might it be better if English speakers drew sharper distinctions among categories of legal or moral entitlements? Maybe. Maybe it would be better if we didn't use the same word ("right") for the rights of individuals, the rights of nongovernmental private organizations and the rights of governments. Maybe it would be better if we didn't use it both for positive rights (entitlements to affirmative help) as for negative rights (entitlements not to be restricted). Maybe it would be better if we didn't use it both for legal and moral rights, or both for rights against the government and rights against other citizens.

Yet today, the word "right," as an English word, does often refer to all such things, including in sophisticated legal and political writing; and it has done so for centuries. You can talk about the difference between how we should treat individuals' and states' claims of entitlement. But I see no basis for claiming that, as a linguistic or logical matter, Madison, Hamilton and lots of other people were wrong in how they used the English language on this score.