Bench Memos

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Powers and Rights


Over at The Corner, Mark Hemingway unnecessarily submits to being upbraided by a lawyer for using the word “right” when he should have said “power” in reference to the authority of a state to regulate gun ownership.  Mark’s correspondent says this distinction is “fundamental” and that we must never, ever speak of a government’s “right” to do anything–that only individuals have rights.

But this allegedly fundamental distinction is a johnny-come-lately in politico-legal discourse.  Thomas Hobbes, John Locke, William Blackstone, framers of the Constitution including the authors of The Federalist–all spoke of the “rights” of governments to do things, or the rights that attached to political offices.  By the time of the founding, it was becoming uncommon to speak of individuals having “powers,” and so the distinction was starting to take hold on that side of the ledger.  But right through the founding period and beyond, the word “right” was often used synonymously with “power” where governments were concerned.  There may be a lot that’s wrong with the phrase “states’ rights” in our history, for instance–but only with its use, not with the phrase itself.

So Mark, you were only being old-fashioned in referring to a “right” of a state to legislate.  And what conservative could fault you for being old-fashioned?


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