The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Government Rights

Yes, governments do have rights, not just powers.


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.