Do states/governments have rights?


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Ieyasu
October 1, 2004, 05:23 PM
This thread is a continuation of a discussion that was OT on another thread, so it's being moved to here.

I'm not going to bring across the related posts, but they start here: http://thehighroad.org/showthread.php?s=&threadid=103311&perpage=25&pagenumber=11


This is the remark that started the discussion:
Do you understand and accept the fact that governments, federal and state, do not and can not possess RIGHTS; that governments possess only POWERS?"

In response to posts containing quotes from the Articles of Confederation and comments from Founders during the Constitutional convention and state constitutional conventions mentioning either the rights of a state or the national government, insidious_calm wrote:
I believe the word rights was wrongly interchanged with powers due to the perception of authorities granted in contract law.

That model requires that the Founders, many of whom were lawyers (and one I guoted became a Supreme Court justice), were mistaken. Not only that, but below are quotes from constitutional commentators (published in the early 19th century), who were contemporaries of the Founders,
stating that states and the national government have rights. From the Founding period to our time, legal commentators refer to states and nations having rights. It is clear from their writings that regardless of whether a nation's charter is a constitution, a confederation, or some other form of government, governments possess rights. This is somewhat analogous to the fact that people have rights regardless of the form of government they are subject to (regardless of whether the government unjustly restrains people from exercising those rights). Also, as with people and government, positive rights can be created/delegated by the compact.

If I understood your post correctly you believe that the rights of states alluded to in the Articles of Confederation arose from the AOC and a misapplication of contract law. However, as mentioned in the previous paragraph, some of the Founders speak of the rights of government, independent of the type of national charter.

You claim states don't have rights. Can you show any contemporary documents or framers that explicitly say that the states do not have rights?

I think part of the reason this myth has arisen is the Constitution is read out of its historical context. Surely a concept can exist WITHIN the context of creating a document even if it doesn't appear explicitly. As I'm sure you know, most of the Federalists felt a Bill of Rights was unnecessary. Without the Bill, reading the Constitution, one might conclude that governments have powers and individuals have no rights! ("Right" is used only once in the unamended Constitutition and it only refers to securing the publishing
rights of inventors and authors.) There was a demand for a Bill of Rights, so it was added, however, nobody was asking for a statement of government rights, for what I hope are obvious reasons.

In fact, the second article from the AOC clearly supports the contention that the Founders believed that states had rights:
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.

That wording indicates that framers believed states had rights PRIOR to the AOC's conception, so those rights obviously did not arise as the result of a national contract.

I.C. wrote:
I believe part of the evidence of this lies in that some of the so called rights defined by the articles of confederation are in fact powers defined in the constitution.

I believe it is you, rather than the Founders, who is confusing powers and rights. As mentioned previously, without a grant of power, a right couldn't be executed. Using the Constitution as an example, the Founders granted the right to coin money to the national government. They delegated that power to a specific branch of government, and as a result that branch of government had the right AND power to coin money.

Your explanation requires that the framers and constitutional commentators who were talking about the rights and powers of states and national governments were continuously confused about the distinction, right on through 40 years beyond the ratification of the Bill of Rights. It further requires that the misunderstanding persists today, because law review articles and constitutional texts continue to mention the rights and powers of states and the national government.

Below are quotes from three JURISTS, who were contemporaries of the founders, and published constitutional commentaries in th early 19th century. The quotes here are only a SAMPLE. These commentaries are sprinkled with references to rights and powers of governments.

To assert all of these folks were confusing rights and powers (especially when they were lawyers and judges), when the model I described above comports to the contemporaneous evidence, is to strain credulity. (Unless of course some evidence of contrary writings from the time is provided, or some scholarly work today shows strong evidence that all of these lawyers and judges were confused.)

The commentator's below are referenced by date published.

St. George Tucker (source: http://oll.libertyfund.org/Texts/LFBooks/Tucker0257/Constitution/HTMLs/0023_Pt05_View.html):
"The state governments not only retain every power, jurisdiction, and RIGHT not delegated to the United States, by the constitution, nor prohibited by it to the states, but they are constituent and necessary parts of the federal government"

"it is likewise a maxim of political law, that sovereign states cannot be deprived of any of their RIGHTS by implication; nor in any manner whatever by their own voluntary consent, or by submission to a conqueror."

"From the moment of the revolution they became severally independent and sovereign states, possessing all the RIGHTS, jurisdiction, and authority, that other sovereign states, however constituted, or by whatever title denominated, possess."

"Whether this original compact be considered as merely federal, or social, and national, it is that instrument by which power is created on the one hand, and obedience exacted on the other. As federal it is to be construed strictly, in all cases where the antecedent RIGHTS of a state may be drawn in question."

"The sum of all which appears to be, that the powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the RIGHTS of a state or of the people, either collectively, or individually, may be drawn in question."

William Rawle:

"A high function also appertains to the judiciary in the EXCLUSIVE RIGHT to expound the Constitution, and thereby to test the validity of all the acts of the legislature."

"The natural inclination of those who possess power, is to increase it. History shows that to enlarge the description of treason has often been resorted to as one of the means of increasing power. To have left to
the legislature an unlimited RIGHT to declare what should amount to this crime would have been less consistent with public safety, than to fix, by common consent, its plain definition and exact limits."


"The United States, therefore, justly reserved to themselves the RIGHT to punish this high offence, and the state courts, since the adoption of the
Constitution, have abstained from intermeddling with prosecutions on account of it."


Joseph Story (appointed to the Supreme Court by James Madison.)

"The first resolution adopted by the convention on this subject of the powers of the general government, was that the national legislature ought to be empowered to enjoy the legislative RIGHTS vested in congress by the confederation, and moreover..."

"Nor can any power be inferred in the states to regulate commerce from other clauses in the constitution, or the acknowledged RIGHTS exercised by the states."

"While this sheet was passing through the press, President Jackson's Proclamation of the 10th of December, 1832, concerning the recent Ordinance of South-Carolina on the subject of the tariff, appeared. That document contains a most elaborate view of several questions, which have been discussed in this and the preceding volume, especially respecting the supremacy of the laws of the Union; the RIGHT of the judiciary to decide upon the constitutionality of those laws; and the total repugnancy to
the constitution of the modern doctrine of nullification asserted in that
ordinance. As a state paper it is entitled to very high praise for the clearness, force, and eloquence, with which it has defended the RIGHTS and POWERS of the national government. I gladly copy into these pages some of its important passages, as among time ablest commentaries ever offered upon the constitution."

[the following are selective quotes from Jackson within the above passage]

'"The constitution has given expressly to congress the RIGHT of raising revenue, and of determining the sum the public exigencies will require. The states have no control over the exercise of this RIGHT, other than that, which results from the power of changing the representatives, who abuse it, and thus procure redress. Congress may undoubtedly abuse this discretionary power, but the same may be said of others, with which they are vested.'


"What are they? Every law, then, for raising revenue, according to the South-Carolina Ordinance, may be rightfully annulled, unless it be so framed, as no law ever will or can be framed. Congress have a RIGHT to pass law for raising revenue, and each state has a RIGHT to oppose their execution, two rights directly opposed to each other; "

"No one, fellow citizens, has a higher reverence for the reserved RIGHTS of the states, than the magistrate, who now addresses you."

Again, as in all cases, Jackson's comments as relayed by Story are only a sampling of the instances in which the RIGHTS of states or the national government are referred to.

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benEzra
October 1, 2004, 06:36 PM
From strictly a language standpoint, the word "right" can often be used synonymously with "authority." As in, "the authority of the people to keep and bear arms shall not be infringed." If I have the right to speak freely, I have the authority to speak freely, and so on.

In that sense, right=power=authority. Dunno how that stacks up with the legal history of the term, though.

insidious_calm
October 1, 2004, 07:40 PM
I believe it is you, rather than the Founders, who is confusing powers and rights. As mentioned previously, without a grant of power, a right couldn't be executed. Using the Constitution as an example, the Founders granted the right to coin money to the national government. They delegated that power to a specific branch of government, and as a result that branch of government had the right AND power to coin money.


Your own words prove my point. I don't believe you understand the nature of a right. You certainly haven't defined it as I asked you to. Anyway, taking your supposition to its natural conclusion, you yourself only have 'rights' because the constitution granted you the 'power' to claim them. That simply is not the case. The constitution merely reaffirmed prexisting inalienable rights. Your rights exist BECAUSE you exist, not because someone gave you the power to execute them. Govenments did not exist until men decided to create them. Men cannot grant rights anymore than they can take them away. They can however grant the AUTHORITY to exercise certain rights on their behalf. An attorney does not have the authority to make legal decisions on your behalf until you give it to him. That's why they call it the 'power of attorney' and not the 'right of attorney' because power is the natural derivitive of authority.


One of the other questions you didn't answer was whether or not governments are entities by themselves. This is not the case. Governments do not exist outside those that they govern. Because of that fact, it is not possible for them to possess rights. If the governed are taken away then the government ceases to exist. On the other hand, if governments are taken away people still exist, albeit in anarchy. In other words, governments are created by men. They may also be disbanded by men. Rights cannot be taken away. Authorities on the other hand, and their natural derivitive - powers, may be revoked by the will of men. By your definition you only have rights because you were given 'power' or authority to exercise them. Authority = permission, and permission can be revoked. Governments may only represent rights, they may not possess them.


I.C.

insidious_calm
October 1, 2004, 07:52 PM
"The first resolution adopted by the convention on this subject of the powers of the general government, was that the national legislature ought to be empowered to enjoy the legislative RIGHTS vested in congress by the confederation, and moreover..."

"Nor can any power be inferred in the states to regulate commerce from other clauses in the constitution, or the acknowledged RIGHTS exercised by the states."


As you can further see by these quotes, the government does not possess rights. The word 'vested' clearly demonstrates that fact. Certainly government may exercise rights on your behalf, but they are still your rights.


I.C.

Ieyasu
October 1, 2004, 09:44 PM
"You certainly haven't defined it as I asked you to."

It's irrelevant to this discussion. If the founders believed that governments have rights, that's sufficient since they're the one's who wrote and interpreted the Constitution.

Anyway, taking your supposition to its natural conclusion, you yourself only have 'rights' because the constitution granted you the 'power' to claim them.

I didn't make that claim and you are making an incorrect assumption. The analogies I drew were to illustrate a point -- not to carve out all exceptions. Some rights, do arise as a result of a compact between the government and the people, but "inalienable rights" do not. I simply don't want to get in a debate about the source of "inalienable rights," since it's irrelvant. Again, the Founders, their contemporaries, and subsequent commentaries support the theory of rights and powers I briefly described.

The constitution merely reaffirmed prexisting inalienable rights. Your rights exist BECAUSE you exist, not because someone gave you the power to execute them.

I never said it didn't. Again, you are only talking about a subset of rights. Inalienable rights aren't the only source of rights. Now if you really insist on an elaboration of what other rights the Founders referred to, I'll provide a very brief summary.

Govenments did not exist until men decided to create them. Men cannot grant rights anymore than they can take them away. They can however grant the AUTHORITY to exercise certain rights on their behalf.

That last sentence is your opinion, not the Founders. They clearly had a different view of the definition of rights and powers. The Founders did believe that certain rights could be ceded to a government, and rights created and granted as well. That is the terminology they used. You obviously seem to have a different definition, which you apparently cannot find any scholarly support for.

"An attorney does not have the authority to make legal decisions on your behalf until you give it to him. That's why they call it the 'power of attorney' and not the 'right of attorney' because power is the natural derivitive of authority."

The attorney has the right once the power is granted.

[edited to add: The above is a bit silly since this example is irrelevant to the rights/powers of governments.]

One of the other questions you didn't answer was whether or not governments are entities by themselves. This is not the case. Governments do not exist outside those that they govern. Because of that fact, it is not possible for them to possess rights.

Referring to the last sentence, again, that is your opinion and apparently your own personal defintion of what rights are. The Founders believed differently. And as I mentioned, THEIR view has continued to hold sway. That is why your original comments that started this thread are incorrect. What you said may be true with YOUR definition of what you believe a government right is, but it's not the view that the Founders held, nor apparently how most jurists view it today either.

If the governed are taken away then the government ceases to exist. On the other hand, if governments are taken away people still exist, albeit in anarchy. In other words, governments are created by men. They may also be disbanded by men. Rights cannot be taken away.

The Founders believed that government rights could be created or taken away. That doesn't mean they are not rights. Well, by your definition it makes them not rights, but again, the founders and apparently modern-day legal theory does not accept your definition of rights.

By your definition you only have rights because you were given 'power' or authority to exercise them.

Incorrect. Government rights have this limitation, not "inalienable rights." Again, there are other kinds of rights.



Only by your definition. Not what the Founders thought were rights.

[QUOTE]The word 'vested' clearly demonstrates that fact. Certainly government may exercise rights on your behalf, but they are still your rights.

Not exactly. What about the right to coin money? By your definition it's not a right, however by what the Founders considered a right, it clearly is. The right to coin money was never considered an individual or inalienable right. Again, by your view I understand that is not a right, but again, the Founders considered it a right.

Most importantly I have demonstrated that the Founders and contemporary legal scholars believe that governments have rights! Therefore your intial statement about governments not having rights needs to be qualified that it's your PERSONAL opinion/THEORY based upon your personal defintion of what rights are or should be (until you can demonstrate otherwise according to legal-theory X or legal commentator Y).

Standing Wolf
October 1, 2004, 10:45 PM
Certainly government may exercise rights on your behalf, but they are still your rights.

Yeah, and pigs may suddenly sprout little wings, too.

another okie
October 1, 2004, 11:00 PM
You guys are arguing about nothing.

At the founding of our nation most people accepted the natural rights theory, but not everyone, and even those who did accept it weren't always consistent in their language, any more than people are today using "standard capacity" instead of "high capacity." To expect consistency in language of such a diverse group of people as the founders is unrealistic.

It is certainly true in "pure" natural rights theory that only individuals have rights, not groups or states or corporations. Instead they have powers, duties, and responsibilities. However, the terms are considered interchangeable by so many today and were considered interchangeable by so many in 1776 (not by me!) that you have to accept some imprecision in the way people talk. Not everyone is a philosopher.

Ieyasu
October 1, 2004, 11:10 PM
You guys are arguing about nothing.

I didn't start it. ;) The original statement triggering this was: Do you understand and accept the fact that governments, federal and state, do not and can not possess RIGHTS; that governments possess only POWERS

It is clear that a statement like that needs to be qualified because that is clearly contrary to the founder's and their contemporaries way of thinking.

Here's, what I think is a good summary:

The very term “rights” at the time of the Founding had multiple meanings, with some considered inalienable natural rights, others seen as natural rights that could be given up to government control, and others viewed as mere positive rights created by constitution, statute, or common law.

Thus, I think an unqualified, strident statement that governments don't have rights is absurd, although I see it often on the 'net. It's not a sustainable claim.

Ieyasu
October 1, 2004, 11:30 PM
To expect consistency in language of such a diverse group of people as the founders is unrealistic.

Yet, the quotes I displayed, clearly show a consistency, that governments have rights. They may not be natural rights, but again at the Founding, there was the belief that different kinds of rights existed. And again, even though the group was diverse, I'd like to see something from that period contradicting the material posted. And even if someone does, that still doesn't change the fact that the post that triggered this discussion needs to be qualified.

Ieyasu
October 1, 2004, 11:37 PM
Sorry for the scattered posts, but I've been coming and going...

At the founding of our nation most people accepted the natural rights theory

What I want to make clear is that regardless of whether they all believed in natural rights, I believe they were unanimous in the understanding that there were different kinds of rights regardless of whether they came from God or some other source. Some were cedeable some were not.

[Edited to add: If I.C. had qualified his claim by stating that governments do not possess natural or inalienable rights, some time and bandwdith would have been saved. ;) ]

insidious_calm
October 1, 2004, 11:55 PM
I guess we'll just have to agree to disagree. I do subscribe to the natural rights theory. (Thanks Okie, I knew I couldn't be the ONLY one!) IMO anything else is dangerous to liberty. Look where we are now. :uhoh: Really it seems to be just common sense seeing as how rights existed long before governments, but I guess I'll just go crawl back under my tiny, shrinking shield of liberty and watch as the youngin's redefine rights, liberties, and happiness. :rolleyes: Thanks for the discussion.


I.C.

Ieyasu
October 2, 2004, 12:02 AM
I guess I'll just go crawl back under my tiny, shrinking shield of liberty and watch as the youngin's redefine rights, liberties, and happiness.

Well, I hope you're not throwing me into THAT category! (Not the youngin's part, the shrinking liberty part.) Cuz I agree with you that our freedoms are shrinking (and I do believe indviduals possess natural rights).

Ieyasu
October 2, 2004, 02:01 AM
You guys are arguing about nothing.

Okay, another okie, my last comment on that remark of yours. It IS an important argument when one considers the usual context in which the claim that states don't have rights is usually made. It's usually made when refuting the contention that the 2nd Amendment protects a states' right. I think I've clearly shown, that regardless of what the various philosophers' ruminations on rights may be, based on original intent, states can have rights. Therefore, using the states don't have rights argument is a flawed one. There are much better ways to shoot down the states' rights argument. That line of argument should never be tendered!

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