Rights and Judicial Federalism
Whether one is looking at judicial federalism as the apportionment of the nation's law work, as the initiatives of state courts, or even as the devolution of responsibility from federal to state courts, the question of rights intrudes. Most often the question is posed thusly: Does judicial federalism serve to expand or contract rights? A straightforward question? Perhaps. A simple one? Certainly not.
To ask the question is to speak of rights as if they were commodities, like corn or electricity. It is not at all clear that rights may be so quantified as to allow measurement of their expansion or contraction. When one speaks of a commodity, it is intuitively clear what it more or less means. If we sought to know whether a certain method of farming, or a certain fertilizer would lead to more or less corn, or perhaps would have no effect on the yield, a simple experiment, ending in a commonly accepted measurement, would demonstrate to all, with perfect clarity, the truth of the matter. No such experiment exists for rights.
But quantifying is only the beginning of any inquiry, not the end. For we would want to know the costs associated with different methods or fertilizers, and whether there was environmental damage associated with either. Is the fertilizer dangerous to produce? Perhaps most importantly, do we need to produce more corn? Is there a glut or a shortage in the market? Thus, does having more corn make us better off or worse off? To ask the question is to illustrate the problem.
Some rights advocates seem to have no such worries. To them you can never be too thin, or too rich, or have too many rights to paraphrase a common 1980s fallacy. Were we to engage in reductio ad absurdum we could finally ask what a person would be to whom every possible right had been given? Well, the words king or queen come to mind.