Posted by Eugene Volokh:
"Rights":
http://volokh.com/archives/archive_2009_03_08-2009_03_14.shtml#1237051024
I keep hearing people claim that only people can have "rights," and
governments, states, and the like can't. Now if people want to argue
that it would be better if the word "rights" were limited to the
rights of individuals, I don't have that much to say about it. But the
claim is often made about what the meaning of the word is, or what it
was in the Good Old Days. (Often it's accompanied with the assertion
that historically "power" has been used for what governments may do,
and "right" has been reserved only for the entitlements of individuals
relative to other individuals or the government.)
The trouble is that a historical matter, "right" has been used to
describe a legal or moral entitlement, whether of individuals, states,
countries, or other entities, throughout all of American history, and
I suspect for much of British history before then. Consider, for
instance, the [1]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, in Congress
assembled.
The United States in Congress assembled, shall have the sole and
exclusive right and power of determining on peace and war, except
in the cases mentioned in the sixth article
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 ... [and] 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[.]
Consider [2]Federalist No. 81, speaking of "of a pre-existing right of
the State governments." Consider Jefferson's [3]Opinion on the French
Treaties, which spoke of the "rights of nations," a term that had been
used at least since the late 1600s years (and quite possibly more, I
just did a quick search for this) in English publications, including
writers the Framers found highly influential, such as Cicero, Vattel,
Grotius, and Algernon Sidney (the first three in translation). And
consider the talk of [4]The Rights of the British Colonies in the
years before the Revolution.
So maybe it would have been better if "right" covered less territory,
and were divided into different words along many dimensions --
negative vs. positive, individual vs. possessed by collective
entities, legal vs. moral, asserted against individuals vs. asserted
against the government. You could try to invent such words, though as
with any proposals to change the language the battle will be uphill
and very likely a losing one.
But I think we have to acknowledge that the actual meaning of "right"
throughout American history, in legal discourse but also in
[5]political theory and moral discourse, has included the rights of
nations, states, and I suspect many other entities.
References
1. http://www.law.ou.edu/ushistory/artconf.shtml
2. http://www.constitution.org/fed/federa81.htm
3. http://avalon.law.yale.edu/18th_century/jeffop2.asp
4. http://www.constitution.org/bcp/otis_rbcap.htm
5. http://www.constitution.org/jl/2ndtr19.htm
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