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!?”

      1. Natural rights does not mean what you seem to think. Not even close.

        There are sufficient reasons to resist government overreach without inventing some pre-existing, a priori “rights”

        With no rights, there can literally be no government overreach.
        Or no way to “enforce” the prohibiting of overreach.

        We’d have Rothbardians screaming at the clouds, even more than now, which alone is terrifying.

        1. “With no rights, there can literally be no government overreach.”

          Why, because you say so? Which of these two arguments do you think is more persuasive:

          (1) The government shouldn’t murder people because murder violates peoples’ rights, man.
          (2) The government shouldn’t murder people because I’m a people, and I don’t want to be murdered.

          The entire concept of “rights” always devolves into human self-interest. Because they were invented by humans, promoting their self-interest. The creation of rights–by people–has always been about self-interest.

          1. “(2) The government shouldn’t murder people because I’m a people, and I don’t want to be murdered.”

            And the government should pay attention to your wants, why? They may be very inconvenient to it, after all.

            1. What additional force to compel the government does yammering about how you have real, inherent rights?

              1. Sarcastr0 beat me to it, but it’s actually worse than that. If the only argument you have for a government determined to harm you is “I have a natural right preventing you from doing that to me” you’re effing doomed. If you speak to others on wholly foreign terms, why would you expect them to treat you differently? “Zeus commands you not to execute me.” “Ok, well I don’t believe in Zeus, so keep swinging.”

                If government is a thing you must to persuade, you need to speak at it on its own terms. If a government is coming after you with a knife, presume it hasn’t internalized your views about natural rights.

                1. I think you have nothing left but “the war of all against all”, then.

                  1. So what? Natural rights regimes emerged from Hobbesian states of nature.

                    Natural rights isn’t some miraculous panacea for political conflict. To the contrary, it encourages uncritical thinking about your own natural rights, making it harder for real compromise to emerge between people with different interests. Natural rights is just shorthand for “na na na I win, I don’t have to engage you on your own terms because my rights are special”.

                  2. You are only right if humans are all antisocial sociopaths. Luckily, we are by-and-large social creatures and as such empathy, reason, nationalism/tribalism, etc. all serve to prevent a war of all against all.
                    And I’d wager they do so much more effectively than insisting everyone must semantically adhere to your preferred political philosophy.

                    1. And, not to pile on, antisocial sociopaths are precisely the sort of people to not care about natural rights, however defined.

  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.

    1. You said right. Article V does not. I wonder why.

  3. You may to have confused the issue at hand, IMHO. Yes, government has rights, grammatically. But.NONE of THOSE rights may exist unless they are delegated. The distinction you disfavor, is simply that same distinction. And it’s even many iberttartians who fail to so. Granted, many conservatives and libertarians wind up giving pedantic lectures, even when they are not germaine.

    On the other hand, it’s especially critical when comparing the 9th and 10th Amendments — so shamelessly distorted by Ron Paul, and southern racist for over a century. Unenumerated POWERS are reserved to the states, which some — especially Ron — claim means that states can do whatever they choose, and only “rogue judges” would EVER defend fundamental human rights from abuse by state or local governments (“libertarian” statists)

    But the 9th reserves unenumerated RIGHTS to the people, and INTENTIONALLY never names those rights. And all those rights are co-equal – Life, Liberty, Pursuit of Happiness … and many others which are never listed, intentionally.

    Individual rights are superior to state powers — the 9th over the 10th — and it’s even many so-called libertarians we need that protection from. I’m just saying this may not be the place to deal with grammatic usage.

  4. 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.

  5. 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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