They’re Making It Up:

Every so often I’ve heard people argue that “states and nations can’t have legal rights.” The claim isn’t just that states and nations don’t, as a moral matter, have basic human rights; it’s that it’s somehow wrong to talk about their legal rights. (For instance, some argue that the Second Amendment must secure individual rights, not states’ rights, because “rights” can only belong to individuals, not states; I agree the Second Amendment secures individual rights, but not for that reason.)

This claim, it turns out, falls into the category of They’re Making It Up. It’s generally made as an assertion of what the term “right” actually means — and that assertion is simply false, as a matter of American usage. It seems to be a simple theory that someone came up with, and that others who heard it adopted because it fit their political attitudes. They certainly didn’t adopt it based on evidence for the theory, because there is no such evidence.

I collect sources here; they include the Articles of Confederation and The Federalist, but Supreme Court cases speak the same way. Consider a few examples:

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. (Articles of Confederation.)

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 . . . . (Articles of Confederation.)

The right of equal suffrage among the States is another exceptionable part of the Confederation. (Federalist No. 22.)

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. (Federalist No. 31.)

There’s plenty more out there, too.

One could, of course, also claim that “right” should be defined to apply only to individuals, or only to individuals and nongovernmental organizations, and not to states or nations or government bodies. This isn’t how I’ve heard the claim made, but I can certainly imagine it being made this way.

This would also be Making It Up, but at least it would be honest Making It Up — it would be a self-conscious attempt to change the definition of this pretty old legal term. One would, of course, then have to give some good reasons for such a redefinition.

But simple claim that states and nations just can’t have legal rights under our current legal system, under the Framers’ vision of our Constitution, or under broader American legal traditions, is false.

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