Government Rights

Yes, governments do have rights, not just powers.

|The Volokh Conspiracy |

A reader mentioned a claim that I'd heard before, which is that governments can only have powers, and only people can have rights. Now I agree that individual rights are in some ways different from organizational rights, whether of nongovernmental organizations or governmental ones; as a moral matter, organizational rights can only be derivative, I think, of individual rights. And as a legal matter, governmental rights and individual rights are often defined somewhat differently.

But as a matter of American legal language, governments, other organizations, and individuals are often said to have rights. For instance, consider 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 ….

The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war ….

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States—fixing the standards of weights and measures throughout the United States—regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated ….

Or consider Federalist No. 22:

The right of equal suffrage among the States is another exceptionable part of the Confederation….

In this case, if the particular tribunals [i.e., courts] are invested with a right of ultimate jurisdiction, …

Or Federalist No. 31:

It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments….

Or Fenemore v. United States, 3 U.S. 357 (1797) (Iredell, J.):

The only question, therefore, that remains to be decided, turns upon the right of the United States, to affirm the original transaction; and, if they have that right, it follows, inevitably, that they ought to recover from the Defendant an equivalent for the value of the certificate, which was surreptitiously obtained. I have no difficulty in saying, that the right exists; and that, the public interest, involved in the credit of a public paper medium, required the exercise of the right in a case of this kind.

Or Hannay v. Eve, 7 U.S. 242 (1806) (Marshall, C.J., for the Court):

Congress having a perfect right, in a state of open war, to tempt the navigators of enemy-vessels to bring them into the American ports ….

A legal right is, generally speaking, just a label for a legal entitlement, and governments can have that, both with respect to other governments and with respect to individuals. One can imagine a different legal system in which one word was used for basic moral entitlements (or even legal entitlements) of individuals and another was used for legal entitlements of governments; one can likewise imagine a legal system in which, for instance, a different word was used for entitlements to be free from governmental constraint than for entitlements to governmental benefit or protection. But in American law, the word "right" has long been used in all these contexts.

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  1. “But as a matter of American legal language…”.

    There you go again, conflating law with reality. Legal consensus makes governmental ‘rights’ no more real than it would make defining ‘pi’ as ‘three’ be three, even though that could be enforced by the state with further (not unfamiliar) grotesqueries to compensate for its being unreal.

    1. Laws have power.
      Your own idiosyncratic philosophical understanding has power only over you.

      1. Still, that doesn’t make a government power a right. All governmental rights are positive rights, so if you don’t think those exist, as many people don’t, well, there isn’t much arguing to be done over this

        1. My issue is not over whether there are positive rights or not, it’s with a comment saying ‘laws do not matter, only Truth (as I define it) matters.’ That’s not an argument, it’s self-validation.

          On the other hand, I think there’s a lot of interesting arguments over whether there are governmental rights, or what they mean, and whether positive rights are or should be a thing. You’ve got an intersection of history, and philosophy, and politics, and jurisprudence…meaty stuff and hardly an axiomatic undebatable topic.

        2. Careless, why would anyone suppose positive rights could not exist? What if you understand that political and civil rights are not granted by governments, but decreed by sovereigns as powers their subjects can enforce against government with the sovereign’s backing? If that is the case, why can’t a sovereign decree a positive right commanding government as readily as a negative right restraining government?

    2. This is just natural rights nonsense. If there were no people, there would still be pi. If there were no humans, humans would have no rights. You can insist all you want that natural rights exist absent consensus, but that has never been true, and never will never be true.

      The natural rights religion serves no purpose. There are sufficient reasons to resist government overreach without inventing some pre-existing, a priori “rights”. But creating these imaginary rights confuses the law, encourages people to treat their own policy preferences as divinely inspired, and generally promotes pointless tribalism. If you can’t articulate why it’s wrong to, say, imprison people for political speech absent an appeal to natural rights, you aren’t thinking clearly. It’s no different than screaming “WHO WILL THINK OF THE CHILDREN!?”

  2. Also from Article V, states have a right to equal representation in the Senate:

    no state, without its consent, shall be deprived of its equal suffrage in the Senate.

  3. The US Constitution makes a useful distinction between rights and powers. For example, the 9th amendment says the people have rights and the 10A says states have powers. Careful scholars have recognized this distinction ever since.

    You found a couple of examples that either use the terms in a sloppy manner, or that predate the Constitution. That’s all. The overwhelming American usage respects the distinction.

  4. I’d just as soon start out from first principles to clear up definitions for the context of creating a government.

    Only people have rights. Governments only have powers, and only those powers, given to it by the people (and by supermajority because if yo can’t ger most of the people agreeing government should have a power, it probably shouldn’t, as the vote is just an abstraction of might makes right.)

    And why is this important? To say a government has rights suggests some a priori concept that some entity called “government” may claim by divine…right. That is the concept we need to strip from the minds of people in the formation of governments.

    If someone wants to suggests “rights” has too much baggage to support this in this context, then we need another word.

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