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What Use Is an “Inalienable” Right?

Americans know the Declaration affirms life, liberty, and happiness’s pursuit as inalienable rights. John Locke and others affirmed (some) rights as inalienable as well. Robert Nozick, in contrast, argued the right to liberty entailed people have the right to sell themselves into slavery.

The distinction wasn’t merely a theoretical point—it also had practical implications at the time of the founding.

When asked about the significance of a right being inalienable, most Americans initially respond it’s significant because it means those rights can’t be taken away by the government. While the answer is formally correct, it is irrelevant: An alienable right can’t be taken away either.

The bite of something being inalienable is not that it can’t be taken away, but that it can’t be given away. “Inalienability” is a restriction on the person who possesses the thing, it does not implicate the justness of someone taking the thing.

This is easy to see.

Let’s start with alienability. That something is alienable only means it can be transferred. That is, it can be sold or given away. My ownership rights over my house are alienable. I can sell or give it away. I can even alienate select parts of my rights. In renting my house, I alienate my right of occupation to another person.

That a right is alienable, however, does not entail it can justly be taken or stolen. If I make chairs, for example, my right over those chairs is entirely alienable: I can sell them or give them away. But if someone breaks into my factory and steals my chairs, the fact that my ownership rights over those chairs is alienable makes no difference to the fact a theft occurred.

What about inalienability? Americans have less direct experience with inalienable property, but the national obsession with all things Jane Austen means we’re more familiar with the concept than we might think.

The inalienability of the fathers’ estates provides the dramatic backdrop in Pride and Prejudice and in Sense and Sensibility. Primogeniture—estates being entailed to the first born child, usually along the male line—meant ownership of the estates were inalienable. While Mr. Bennett could use the estate during his lifetime, he could not transfer any right to the estate beyond his life. Hence his wife’s and daughters’ concern about their future if and when he died. This is the pickle Mrs. Dashwood and the girls find themselves in after Mr. Dashwood’s death.

So much for property law. What’s the practical relevance of inalienability for political rights?

If liberty (and life and happiness’s pursuit) is an alienable right, then despotic government can arise justly. Even as a possibility, in order to object to a government’s action as a violation of the right to liberty, one would need to trace the history of transactions between the people and the political leadership before one can identify a government’s action as a right’s violation.

Whether a government’s actions are actually rights violations would depend on the empirical, historical path of what the people consented to in the past, and on what rights they voluntarily alienated. Because of this empirical component, a government’s action could be a right’s violation in one political society yet not a violation in another political society that had alienated the right earlier.

If the right to liberty is inalienable, however, the history of transactions between the people and their leaders are irrelevant. Even if a people purported to surrender their right to liberty in the past, because the right to liberty is inalienable, their purported consent could not in fact transfer it. If liberty is an inalienable right, then anytime one sees liberty’s violation, one can conclude immediately it is unjust; the people never had the power to alienate their liberty in the first place.

One might ask, why is this of practical relevance, for who would ever willingly transfer their liberty right in the first place?

The best political examples are literary or historical. But even in modern American society, courts are careful with remedies in personal service contracts. While courts will forbid someone to work for another employer in breach of a personal service contract, they will not require performance of the originally-promised work as it would be too close to a form of legal servitude.

More generally, there are well-known examples in the Western canon in which liberty is alienable. In the Bible, Joseph effectively reduces the Egyptians to slaves in a series of transactions in Genesis (41.53-57 and 47.13-26). So, too, liberty was partly alienable in the Mosaic law, even for Hebrews. While Hebrews could be initially sold to another Hebrew for a maximum of seven years (Dt 15.12), nonetheless they could consensually commit to permanent servitude (Ex 21.5-6, Dt 15.16-17). Interestingly, while Hebrews could alienate their liberty, they could not alienate their lives or bodies (Ex 21.20, 26-27). And prohibition of returning fugitive slaves would set practical limits on treatment of slaves as well (Dt 23.15).

Or one might think of exchanges such as Mancur Olson sketches in his classic article on roving versus stationary bandits. A community seeks protection from the predation of roving bandits by ceding their rights to “stationary bandits.” Akira Kurosawa’s film, Seven Samurai, suggests a cinematic portrayal of this possibility—at least if a community were to engage less honorable samurai than portrayed in the film.

From these we can imagine the possibility of despotic governments arising consensually. Asserting the inalienability of the right to liberty answers this possibility: If the right to liberty is alienable, then whether despotic rule is just or unjust depends on the actual, historical set of agreements between the people and their ruler. But if the right to liberty is inalienable, then we know despotism is perforce unjust, irrespective of how it arose.

Asserting life, liberty, and happiness’s pursuit as inalienable rights, the Declaration preempted claims that earlier exchanges between crown and colonies may have consensually perfected policies to which the colonists objected. Being inalienable, the colonists could not concede those rights.

Reader Discussion

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on March 22, 2019 at 10:41:16 am

Alienable liberty is the basis of Hobbes' system and for all social contract theories (and Hobbes would also say that, despotism being an evil, it is impossible that anyone would ever voluntarily consent to it; hence his famous definition of tyranny as monarchy misliked). The real problem, one that makes the Declaration more than merely a political expedient, is that social contract theory is only just that, a theory. No matter whose variant is under consideration, it always breaks down in the analysis. As it is impossible to enter into a social contract without alienating at least some liberty, the matter immediately becomes one of quantification, which is entirely speculative. Redefining liberty to exclude those aspects of it that must be alienated in order to live in political society merely avoids the issue, as does the conceiving of new kinds of liberty--positive liberty attainable only in society--to offset the liberty alienated. The Constitution before the 14th Amendment optimized the trade-off between liberty alienated and security gained, which is why it is a work of genius for the ages and will never be surpassed. But even it cannot withstand the desire of certain people to dominate the rest, and Hobbes would have regarded the attempt as doomed from the outset anyway.

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QET
on March 22, 2019 at 11:59:49 am

That's a good point about Nozick, I think. The fact that he doesn't believe in inalienable rights follows from something even more fundamental in his philosophical anthropology, I would argue:
he, like Rawls and other liberals and libertarians of the late 20th century, believes that the distinction between persons is the only essential quality the human self inherently has.
Of course they are wrong about that, and I'd argue this is one of the big differences between them and the Founders.
http://www.uffl.org/pdfs/vol28/UFL_2018_CJ_Wolfe.pdf

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CJ Wolfe
on March 22, 2019 at 12:57:55 pm

In your article you write that "the concept of inalienability is clearly entailed by social contract theory," and I don't see how this can be correct. Alienation of (some amount of/degree of/kinds of) liberty is the conceptual basis of the social contract. Your article concerns the right to life, which I suggest is not commensurable with the right to liberty, if only because life is indivisible--you are either alive or you aren't--but liberty is divisible (in theory, anyway). Alienation of life certainly cannot be the basis of social contract. And if we conceive of life as divisible after a fashion--I can make choices that weaken me, impair my health, hasten death; compared to another I have "less" of life in me--then we must grant its alienability.

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QET
on March 22, 2019 at 13:15:41 pm

Despite its use of the indicative mood, the article is about what shouldn't happen, not about what can't happen. As Lincoln said, you cannot give a dog a fifth leg by defining a dog as a five legged animal, and you cannot make a right inalienable by defining it as inalienable. That it would be "unjust" to take a supposedly inalienable right away means only that the right should not be taken away, not that it cannot be taken away. If you doubt this think of North Korea or China and the supposedly inalienable right of liberty.

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Max Hocutt
on March 22, 2019 at 15:54:00 pm

Well, actually, if we go by what America's founding fathers thought about the term "inalienable rights", we would not be having this conversation.

Inalienable rights do not come from other men, or from governments, or from society. They are given to us by God Himself, the Author of Liberty, and they are in our nature as human beings. We may be prevented from enjoying them but they are ours to keep--we cannot even give them away:

1) The Right to Life because without it there can be no liberty. This right is protected by our obedience to the Sixth Commandment;

2) The Right to Liberty (this includes equality, justice, individual sovereignty, self-government, conscience, assembly, association, movement, security, property, self-defense) and Pursuit of Happiness. All these rights are protected by our obedience to the Ten Commandments and Golden Rule.

It is upon these fundamental rights that all our other rights are inferred. For example, everyone is entitled to Equal Justice, but how that justice is administered is not. It is up to each society to work that out for themselves.

Bullies and tyrants can prevent us from exercising these rights and have been doing so since man first walked the earth. And we can sell ourselves into slavery but still those rights are ours to keep. That is why they are called "inalienable". And why slavery is an abomination unto God and a just society. There is no argument that can be made to justify depriving people of their God-given rights, sacred because they are God-given, and no amount of double-talk about State's Rights will make it so.

"Unalienable" is not a synonym for inalienable and we should never allow ourselves to be persuaded that it is. "Alienable" means it is not a God-given right and so "inalienable" is not a synonym for that word, either.

Writers who like to monkey with the meanings of words, especially to turn America's noble founding principles upside-down, must have some reason why they want to do this. I cannot imagine what. But, they don't know what they are talking about.

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Karen Renfro
on March 23, 2019 at 08:05:55 am

I'm pretty sure that "unalienable" -- the term that is used in America's DOI -- is a synonym for "inalienable."

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Jonathan Rowe
on March 23, 2019 at 13:27:59 pm

Oops! Thank you for correcting me, I got the terms backwards. You are correct that "unalienable" is the term in the Declaration of Independence, but the Founders did not use it interchangeably with "inalienable". I do not know why my Merriam-Webster's Dictionary gives them as synonyms for each other because I've read essays by constitutional scholars who argue that in law they do not mean the same exact thing.

I'm sorry I cannot recall who or when or where, but more than one. But the point that they made was that unalienable means permanently inseparable and inalienable means they can be under certain circumstances in law. This is a somewhat arcane subject, but I think Claremont Institute would be able to enlighten us.

If you remember that 18th Century Americans were the philosophical descendents of the Judeo-Christian Natural Law Tradition (Rule of Law, English Common Law, Scottish-English Enlightenment, Protestant Reformation & Resistance Movement, Radical Whig political philosophy) then you will see at once why they considered Liberty sacred.

It is a gift of God to the whole human race, given in equal measure to every individual human being. This does not mean everyone is born into a society where these rights are protected, but it means that they are entitled to them even so. Societies which uphold the Ten Commandments are able to create an environment where individual rights and public liberty are more likely to be respected in custom and law.

But, imbedded in this view is the idea expressed by John Locke, that to be considered just, man's laws must be consistent with God's laws. Cicero thought so, too. And the Founders endorsed this idea.

This means we must study the Ten Commandments, Golden Rule and Sermon on the Mount. Torah teaches that God is the Author of our Liberty, that by our individual voluntary obedience to the Moral Law our happiness is ensured. My obedience to the commandments protects your God-given rights, yours protects mine, and together we protect the rights of others. If they do likewise society will be free and independent.

The Holy Bible is a chronicle of a people whom God chose to demonstrate this operation of Cause and Effect. When His people obeyed His commandments they were free, independent, prosperous and happy. When they did not, they were ruled by domestic or foreign tyrants, taken as slaves, impoverished, oppressed. But, when they realized their misery was the consequence of failure to obey the commandments of God and they repented, and followed the rules, then their liberty was restored.

The commandments are not arbitrary and the consequences of obedience and disobedience are as predictable as the laws of physics. They are universal, for all people everywhere. Read them and see. They are universal and meant for all people everywhere. Peace comes to those who live by them. If everybody lived by them, voluntarily, there would be Peace on Earth.

I learned most of this stuff from reading the Founders, and many of my primary sources are published by Liberty Fund. 18th Century Americans did not get their ideas from French and German philosophers. To understand the Founding generation you have to read the Holy Bible (King James, Geneva, Luther were the most popular) the way they did, for spiritual truth, for history, for wisdom, for legal principles, for rhetoric.

Liberty comes from God. It operates according to the Laws of Cause & Effect. No matter who you are or what you believe, if you obey them you will be blessed. And so will the people around you. Nobody can take that away from you because it comes from the power who created the Universe, not from man. Liberty is inherent in our nature as human beings, and self-preservation is the first law of nature.

"We may look up to our Armies for Defence, but Virtue is our best Security."
Samuel Adams

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Karen Renfro
on March 25, 2019 at 12:35:37 pm

Good point QET- and thanks for reading what I wrote! But look closely- I didn't argue that the concept of inalienability is DERIVED from the social contract theory, but simply that it was implied by it. In other words: given Locke and the Founders' version of social contract theory, they must have believed in inalienable rights as well.
I'm not sure about what the ultimate conceptual basis of the social contract theory was, although I have a few ideas given the history. Was the whole social contract theory DERIVED from an argument about alienation? That doesn't sound right to me. Social contract arguments have deep medieval roots (back at least to Occam), and in one way or another go back to Biblical ideas about the garden of Eden. They don't all originate out of the British Common Law arguments on alienation, in other words.
For what it's worth (it may not be worth much), here is Garry Wills' discussion of the topic of alienation in "Inventing America" that I brought up in the article:
“[i]nsofar as a sovereign had right or rule over something, it was properly his (proprium), an alienum to others. To transfer, he must ‘alien’ it–and the juridical literature first used ‘alienable’ about this power to surrender territory or peoples while retaining rule over the proprium. Fiefs and domains were defined in terms of their alienability from the prince or crown. The same legal language was used for any title-transfer over an estate or property (see Chambers Cyclopedia, s.v. ‘alienation’). Whatever subsidiary holdings might be disposed of, the sovereign could never alien the realm’s very substance. (Sovereignty, after all, implied that nothing can
be ‘supremer’ than supremacy, so supremacy cannot yield its essence to another.) ... The right to alien property was a legal question Jefferson studied in Sir John Dalrymple, taking notes and copying extracts (Commonplace Book, 142-47)."

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CJ Wolfe
on March 25, 2019 at 15:39:46 pm

I'm not sure I understand your reason for placing so much importance on derivation. If by "ultimate conceptual basis" you mean whatever it was that caused Hobbes, e.g., and others to first imagine/conceive of social contract, then I can't say, as that is an empirical question whose answer is probably lost in the mists of time. But one thing is certain: alienation of liberty is a necessary condition of social contract, at least of the first social contract by individuals in the state of nature. Thus, alienability, not inalienability, of liberty is "entailed" by, is a logically required condition of, social contract.

Liberty is what people in the state of nature had overabundance of, and they preferred to trade some of it--only some--for a degree of security, in order that they might better enjoy the retained portion of liberty. That's the theory anyway. That kind of trade is still being made today. One imagines an optimal ratio of the one to the other, which is met neither in the state of nature nor in the modern progressive-authoritarian welfare state. But that is a separate matter. What seems inarguable is that liberty, at least, is alienable.

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QET
on March 29, 2019 at 20:21:33 pm

I am somewhat mystified by the tag "John Locke" at the beginning of James Roberts' effort. Locke never wrote about "unalienable rights," but Francis Hutcheson and Jean-Jacques Burlamaqui did. Hutcheson and Burlamaqui (and not Locke) were noted as "approved writers" in the 1761 Massachusetts Election Sermon. Hutcheson and Burlamaqui also wrote of "safety and happiness," which featured in the 1761 Massachusetts Election Sermon as the purpose of legitimate government. Around this time John Adams was reading both Hutcheson and Burlamaqui, and Adams later wrote definitions of "safety and happiness" -- the often-repeated colonial catchphrase -- in the original May 1776 congressional independence resolution. None of this has to do with John Locke.

Hutcheson, the Chairman of the Department of Moral Philosophy at the University of Glasgow, wrote that "unalienable rights" are the rights of conscience, corresponding to fundamental duties, featuring our duties of piety and benevolence (the two basic commandments of Jesus Christ). Burlamaqui, using similar language, wrote essentially the same thing. Happiness, especially for Hutcheson, was the byproduct of habitual virtue, with benevolence foremost among the virtues. Life and liberty are prerequisites for benevolent action, and those were the two unalienable rights mentioned by Hutcheson. For Hutcheson (followed by the Declaration of Independence), the collective right of revolution followed from the government's violation of the people's unalienable rights.

Burlamaqui, a professor of jurisprudence at the University of Geneva, introduced his influential treatise on natural law with the "noble pursuit" of "true and solid happiness." For Burlamaqui (as followed by the Declaration of Independence), the purpose of government was to secure natural rights, with natural right understood in terms of the pursuit of happiness, and with "true and solid" happiness including the "perfection" of the understanding (which is wisdom) and of the will (which is virtue).

The Founders, with unalienable/inalienable rights, were simply reiterating received wisdom from established academic authorities, and this had nothing to do with John Locke.

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John Schmeeckle
on March 30, 2019 at 14:58:10 pm

For those who are interested in what the Founders said, what they read, and whose ideas they valued, here is an abbreviated reading list. You will note many books from Liberty Fund, Inc.:

"The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution" by Colbourn (Liberty Fund, 1965 & 1998)

"Colonial Origins of the American Constitution: A Documentary History" ed. Lutz (Liberty Fund, 1998)

"The American Republic: Primary Sources" ed. Frohnen (Liberty Fund, 1992)

"American Political Writing during the Founding Era, 1760-1805" ed. Hyneman & Lutz (Liberty Fund, 1983)

""Political Sermons of the American Founding Era, 1730-1805" ed. Sandoz (Liberty Fund, 1998)

"George Washington: A Collection" ed. Allen (Liberty Fund, 1988)

"The Revolutionary Writings of John Adams" ed. Thompson (Liberty Fund, 2000)

"Franklin: Autobiography, Poor Richard, and Later Writings" ed. Lemay (Library of America, 1987 & 1997)Institutes

"John Witherspoon and the Founding of the American Republic" by Morrison (Notre Dame, 2005)

"The English Libertarian Heritage" ed. Jacobson, forward by Hamowy (Fox & Wilkes, 1965 & 1994)

"The Theory of Moral Sentiments" by Adam Smith (Oxford University Press, 1776; Liberty Fund, 1982)

"Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769" Vols. 1-4 by William Blackstone with and Introduction by Katz (University of Chicago, 1979)

"The Selected Writings of Sir Edward Coke" ed. Sheppard (Liberty Fund, 2003)

"Institutes of the Christian Religion" 1559 Edition by Calvin translated by Beveridge (Eerdmans, 1989)

"Magna Carta: The Birth of Liberty" by Jones (Viking Penguin, 2015, Penguin 2016)

"Cicero: The Republic, The Laws" translated by Rudd (Oxford University Press, 1998)

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Karen Renfro
on January 03, 2020 at 20:12:16 pm

[…] that first led the way for the country, those self-evident truths and the knowledge that God-Given Rights and the Bill of Rights are not to be subverted, that they are inalienable [Blog Editor: To the […]

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An Intro to ‘Liberty Violated’ – The NeoConservative Christian Right

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.