The Volokh Conspiracy

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 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 Federalist No. 81, speaking of "of a pre-existing right of the State governments." Consider Jefferson's 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 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 political theory and moral discourse, has included the rights of nations, states, and I suspect many other entities.

	[Eugene Volokh, March 14, 2009 at 1:17pm] Trackbacks "Rights": 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 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 Federalist No. 81, speaking of "of a pre-existing right of the State governments." Consider Jefferson's 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 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 political theory and moral discourse, has included the rights of nations, states, and I suspect many other entities.