Taking Back Our Stolen History
Unalienable vs Inalienable
Unalienable vs Inalienable

Unalienable vs Inalienable

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Also known as Natural Law or Absolute Rights, Jefferson understood “unalienable rights” as fixed rights given to us by our Creator rather than by government. All individual’s have unalienable rights. You cannot surrender, sell or transfer UNalienable rights; they are a gift from the creator to the individual and cannot under any circumstances be surrendered or taken. Jefferson’s thought on the source of these rights was impacted by Oxford’s William Blackstone, who described “unalienable rights” as “absolute” rights–showing that they were absolute because they came from him who is absolute, and that they were, are, and always will be, because the Giver of those rights–Jefferson’s “Creator”–was, and is, and always be. Moreover, because we are “endowed” with them, the rights are inseparable from us: they are part of our humanity. In a word, the government did not give them and therefore cannot take them away, but the government still strains at ways to suppress them.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” Declaration of Independence, 2nd para.

That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” – Declaration of Independence

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  – Amendment IX, U.S. Constitution Bill of Rights, i.e. framers recognized other rights that preceded the constitution, rights inherent in Anglo American Common Law and in natural law.

“Unalienable: incapable of being alienated, that is, sold and transferred.” – Black’s Law Dictionary, Sixth Edition, page 1523

“The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these “unalienable rights with which they were endowed by their Creator.”, U.S. v. Cruikshank, 92 U.S. 542 (1875)

“….The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights.”  – United States v. Twin City Power Co., 350 U.S. 222 (1956)

There is a very serious error made throughout America as related to Unalienable Rights. That is, that many people use the term “Inalienable Rights” and think that the terms are interchangeable. But they are as different as night and day.

You can surrender, sell or transfer INalienable rights if you consent either actually or constructively. Inalienable rights are not inherent in man and can be alienated by government.

Moreover, because we are “endowed” with them, the rights are inseparable from us: they are part of our humanity. In a word, the government did not give them and therefore cannot take them away, but the government still strains at ways to suppress them. Our rights are to be “secured” and protected by the government which we the people created. They are not granted by the government.

Thomas Jefferson asserted in the Declaration of Independence “…that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Jefferson understood “unalienable rights” as fixed rights given to us by our Creator rather than by government. The emphasis on our Creator is crucial, because it shows that the rights are permanent just as the Creator is permanent.

Jefferson’s thought on the source of these rights was impacted by Oxford’s William Blackstone, who described “unalienable rights” as “absolute” rights–showing that they were absolute because they came from him who is absolute, and that they were, are, and always will be, because the Giver of those rights–Jefferson’s “Creator”–was, and is, and always be.

To protect fundamental, individual rights, James Madison helped include the Bill of Rights in the Constitution. The intent was to remove them from government’s reach. The “unalienable rights” explicitly protected by the Bill of Rights include, but are not limited to, the rights of free speech and religion, the right to keep and bear arms, self-determination with regard to one’s own property, the right to be secure in one’s own property, the right to a trial by a jury of one’s peers, protection from cruel and unusual punishment, and so forth.

Among the “unalienable rights” implicitly protected in the Bill of Rights are freedom of conscience–how can one have freedom of speech or religion without freedom of conscience?–and the right to self-defense. As Associate Justice Samuel Alito wrote in the majority decision for McDonald v. Chicago (2010):

“Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in [District of Columbia v. Heller (2008)], we held that individual self-defense is a central component of the Second Amendment right.”

“Unalienable rights” are ours to keep, by virtue of our Creator. So said Thomas Jefferson through the Declaration of Independence, and he was seconded by James Madison through the Bill of Rights. I like Joel Skousen’s definition of our natural fundamental rights today, with gays claiming rights to marriage, politically correct speech propaganda attacking our free speech rights, freedom to bear arms, etc. He said that: “Fundamental Rights are those rights which all people can simultaneously claim without forcing someone to serve their needs.”

The Right of Life

When Thomas Jefferson wrote of “certain Unalienable Rights,” he placed them in the proper order, with Life being the first and most basic of all. This is the right to simply exist as a sentient being… one able to perceive sensations, a consciousness. Unalienable rights come into being at the moment that a human becomes a human. I do not mean when the individual becomes a viable human, capable of life outside the womb. Both sides of the abortion issue agree that a zygote… a human female egg fertilized by a male sperm… is human, and that every day after it becomes an embryo for about 270 days it is human. Our right to life means our right to express our humanness and to simply be alive. The opposite is the death of a human being. The right to life gets very complicated, since none of us were able to leave the womb and live without assistance, sustenance and support. An argument about embryonic viability here entirely misses the point, since even post-birth humans need daily care until at least age 5 (or 10) or they will likely die. So along with our own innate right to life, we acknowledge our responsibility to assist other human life to exist and express itself. Maslow pointed to the need of breathing, food, water, sleep, sex, homeostasis and excretion… all part of maintaining life, and without any one of those needs, life would eventually stop. Note here that the right of life is seldom exercised individually, but is inextricably tied to the lives of others.

Right of Personal Security

The next step up the Unalienable Rights pyramid is the right to protect one´s very life and bodily existence. And by acknowledging the duties we have to others to whom we give life… our progeny… we extend the right to protect their lives also. Personal security first means that our bodies are safe from harm. That security encompasses both protection by others while we are unable to secure our own safety and protecting ourselves and our loved ones after we become capable of assuring our own safety. Note here that the right of personal security is seldom exercised individually, but is inextricably tied to the safety of others. The Second Amendment has its foundation in this unalienable human right, relying upon it to secure a free state through the use of a militia. The Second Amendment is not the “right” to keep and bear arms. It is the restriction on Congress to violate the Unalienable Right of Personal Security. Both the 4th, 5th and 14th Amendments were supposed to secure this Right.

The Right of Labor

The first manifestation of the greater Right of Property is found in the Right of Labor. Every human being owns the work of his own mind and hands, and any hindrance to his employing his mental and physical ability in whatever method he thinks proper, without causing injury to another individual, would be a violation of the Right of Labor. This right will be found in Maslow´s Safety block.

Right to Acquire and Enjoy Property

“Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product is a slave.” Ayn Rand, The Virtue of Selfishness

This Right touches all of the other Unalienable Rights. First, a human fully possesses his own body, and may do with it what he pleases, as long as his choices do not violate the property rights of another human. Next, man owns his labor and may use his labor for his own subsistence. He may use his labor as an expression of value or a medium of exchange, and may freely exchange that value to acquire property. Then he may have quiet enjoyment of his property according to any manner that best reflects his happiness. Property may take the form of physical assets, but may also be less tangible assets like intellectual property. Property rights mean ownership and control, which includes the right to use an asset as well as the right to prohibit others from using the asset. Property rights also allow the owner to determine the value of an asset, and to even destroy an asset if he so chooses. The only restriction on the Unalienable Right of Property is that it does not infringe upon the Unalienable Rights of others.

As John Locke stated in The Second Treatise on Government (1690) “The great and chief end therefore of men uniting into commonwealths, and putting themselves under government, is the preservation of property.” What man would willingly join a society that did not protect his enjoyment of the fruits of his own labor?

In The Wealth of Nations (1776), Adam Smith states that “private property created a role for government in defending property (rights), and the existence of government created the security to stimulate the creation of new property.” Many today wonder why the economies of the nations are in such dreadful shape. But most governments around the world are undermining property rights, the very reason for their existence. When there is no predictability in the marketplace, and individuals are preyed upon by governments, the incentive for creating new property is diminished or altogether extinguished. Those still seeking to create new property will migrate to the governments that best protect property rights. That´s why capital is leaving America for foreign locations and will continue to do so.

Right to Contract

This Unalienable Right gives all individuals the liberty to voluntarily enter into contract with any other individual or group of individuals, so long as there is agreement as to the terms of the contract by all parties involved, and so long as the contractual agreement does not violate another individual´s Unalienable Rights. Therefore, in light of property rights, individuals may sell their labor to an employer at mutually agreeable terms. Individuals may profit from the disposition of other property by mutual agreement.

All Unalienable Rights preceded the establishment of governments. However, governments chafe mightily under this Right. In America, the years 1897 to 1937 were a 40-year period in which the US Supreme Court vigorously protected the Right to Contract. This period of time is called the “Lochner years,” referring to Lochner v. New York (1905). In Lochner, the High Court struck down a New York statute that set maximum working hours. Justice Rufus Peckham, writing for the majority, stated that the Due Process Clauses found in the 5th and 14th Amendments were stout enough to protect the Unalienable Right to Contract, and that the State of New York had no business restricting the hours that an employee and employer may agree to. After 1937, the Court has relentlessly attacked the Right to Contract, supporting laws like the minimum wage and child labor statutes. Most of the burdensome Federal regulations are attacks on the Right to Contract, since they require parties to contracts to perform acts that they would likely not agree to if given a choice.

Right of Free Speech

This is the freedom to speak freely, provided that your speech does not violate the free speech of other individuals. The Right of Free Speech is an absolute right, subject to no other restrictions than another individual´s Unalienable Rights. Naturally, your liberty to speak does not allow for libel, slander, fraud or falsehood. This is another Unalienable Right which governments despise, and most governments do not allow untrammeled free speech. And free speech may take many forms, such as spoken, written, printed and performed.

Right of Beliefs or Conscience

Individuals have an Unalienable Right to believe what they wish, to worship as their conscience dictates, or as a negative right, to not believe or not worship as their conscience dictates.

Right of Personal Liberty

The classical liberal (the good kind) concept of personal liberty is as a moral principle in which an individual is free to govern himself, his life and his property without outside compulsion, force or fraud, provided that his personal governance does not intrude upon or violate the liberty of another individual.

Right to the Pursuit of Happiness

“Striving to find meaning in one´s life is the primary motivational force in man.” -Dr. Viktor Frankl, 1992

The Pursuit of Happiness provides the vehicle through which man can find life´s meaning.

The Pursuit of Happiness would be found on Maslow´s pyramid at the very top as a Self-Actualization need. But this Right encapsulates all the other Rights and cannot be accomplished until the other Unalienable Rights are in place and utilized. Your pursuit of happiness would be short-circuited if you do not enjoy the Rights to Life, Labor, Property, Contract, Belief and Liberty.

To understand how this phrase “the pursuit of happiness” found its way into the Declaration of Independence, you must know some background about Thomas Jefferson. He was strongly influenced by the Greek philosopher Epicurus, even referring to himself as an Epicurean. The teacher´s philosophy was simple: if you cultivated close friendships, limited your desires to the essential necessities of life, and rejoiced in the moment, happiness was yours to keep. Everything in moderation.

The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same conditions. The right to pursue them, without let or hinderance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. It has been well said that ‘THE PROPERTY WHICH EVERY MAN HAS IN HIS OWN LABOR, AS IT IS THE ORIGINAL FOUNDATION OF ALL OTHER PROPERTY, SO IT IS THE MOST SACRED AND INVIOLABLE.”

Think about a Being that creates humans, then endows them with Unalienable Rights simply because they are human, and the pinnacle of their Rights being the Right to the Pursuit of Happiness! Not its attainment, but the pursuit. The Creator is no cosmic Joker, playing a cynical game by creating a desire in the breast of each human being for happiness, but having no available tools to meet the desire. We are endowed with the desire, the ability and the Unalienable Rights necessary to live a life of purpose and meaning, and to pass on those purposes and those meanings to subsequent generations, all seeking the same outcomes.

This right is a large ingredient in the civil liberty of the citizen. To deny it to all but a few favored individuals, by investing the latter with a monopoly, is to invade one of the fundamental privileges of the citizen, contrary not only to common right, but, as I think, to the express words of the constitution. It is what no legislature has a right to do; and no contract to that end can be binding on subsequent legislatures. . . BUTCHERS’ UNION CO. v. CRESCENT CITY CO., 111 U.S. 746 (1884)

“Burlamaqui (Politic c. #, . 15) defines natural liberty as “the right which nature gives to all mankind of disposing of their persons and property after the manner they may judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and so as not to interfere with an equal exercise of the same rights by other men;” and therefore it has been justly said, that “absolute rights of individuals may be resolved into the right of personal security–the right of personal liberty–and the right to acquire and enjoy property. These rights have been justly considered and frequently declared by the people of this country to be natural, inherent, and unalienable.” Potter’s Dwarris, ch. 13, p. 429.

“From these passages it is evident; that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man. Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects, that induced them to unite in society. No man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry. . . The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the constitution. . . Where is the security, where the inviolability of property, if the legislature, by a private act, affecting particular persons ONLY, can take land from one citizen, who acquired it legally, and vest it in another?” VANHORNE’S LESSEE v. DORRANCE, 2 U.S. 304 (1795)

(“[T]he Due Process Clause protects [the unalienable liberty recognized in the Declaration of Independence] rather than the particular rights or privileges conferred by specific laws or regulations.” SANDIN v. CONNER, ___ U.S. ___ (1995)

In the second article of the Declaration of Rights, which was made part of the late Constitution of Pennsylvania, it is declared: ‘That all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding; and that no man ought or of right can be compelled, to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent; nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments, or peculiar mode of religious worship; and that no authority can, or ought to be, vested in, or assumed, by any power whatever, that shall, in any case, interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.’ (Dec. of Rights, Art. 2.). . . (The Judge then read the 1st. 8th. and 11th articles of the Declaration of Rights; and the 9th. and 46th sections of the Constitution of Pennsylvania. See 1 Vol. Dall. Edit. Penn. Laws p. 55. 6. 60. in the Appendix.) From these passages it is evident; that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man. Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects, that induced them to unite in society. No man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry. The preservation of property then is a primary object of the social compact, and, by the late Constitution of Pennsylvania, was made a fundamental law. . . The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the constitution. VANHORNE’S LESSEE v. DORRANCE, 2 U.S. 304 (1795)

I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations. . . It demeans the holding in Morrissey – more importantly it demeans the concept of liberty itself – to ascribe to that holding nothing more than a protection of an interest that the State has created through its own prison regulations. For if the inmate’s protected liberty interests are no greater than the State chooses to allow, he is really little more than the slave described in the 19th century cases. I think it clear that even the inmate retains an unalienable interest in liberty – at the very minimum the right to be treated with dignity – which the Constitution may never ignore. MEACHUM v. FANO, 427 U.S. 215 (1976)

All commissions (regardless of their form, or by whom issued) contain, impliedly, the constitutional reservation, that the people at any time have the right, through their representatives, to alter, reform, or abolish the office, as they may alter, if they choose, the whole form of government. In our magna charta it is proclaimed (2d section of the Bill of Rights, under the 9th Article of the Constitution of Pennsylvania), that ‘all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of these ends they have at all times an unalienable and indefeasible right to alter, reform, or abolish their government, in such manner as they may think proper.’ It has been well said, by one of the ablest judges of the age, that ‘a constitution is not to receive a technical construction, like a common law instrument or a statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them.’ Per Gibson, C. J., in Commonwealth v. Clark, 7 Watts & S. (Pa.), 133. BUTLER v. COM. OF PENNSYLVANIA, 51 U.S. 402 (1850)

The rights of life and personal liberty are natural rights of man. ‘To secure these rights,’ says the Declaration of Independence, ‘governments are instituted among men, deriving their just powers from the consent of the governed.’ The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these ‘unalienable rights with which they were endowed by their Creator.’ Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself. U S v. CRUIKSHANK, 92 U.S. 542 (1875)

“. . . The question presented is not whether the United States has the power to condemn and appropriate this property of the Monongahela Company, for that is conceded, but how much it must pay as compensation therefor. Obviously, this question, as all others which run along the line of the extent of the protection the individual has under the Constitution against the demands of the government, is of importance; for in any society the fulness and sufficiency of the securities which surround the individual in the use and enjoyment of his property constitute one of the most certain tests of the character and value of the government. The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights. UNITED STATES v. TWIN CITY POWER CO., 350 U.S. 222 (1956)

‘By the common law, the king as parens patriae owned the soil under all the waters of all navigable rivers or arms of the sea where the tide regularly ebbs and flows, including the shore or bank to high- water mark. … He held these rights, not for his own benefit, but for the benefit of his subjects at large, who were entitled to the free use of the sea, and all tide waters, for the purposes of navigation, fishing, etc., subject to such regulations and restrictions as the crown or the Parliament might prescribe. By Magna Charta, and many subsequent statutes, the powers of the king are limited, and he cannot now deprive his subjects of these rights by granting the public navigable waters to individuals. But there can be no doubt of the right of Parliament in England, or the Legislature of this state, to make such grants, when they do not interfere with the vested rights of particular individuals. The right to navigate the public waters of the state and to fish therein, and the right to use the public highways, are all public rights belonging to the people at large. They are not the private unalienable rights of each individual. Hence the Legislature as the representatives of the public may restrict and regulate the exercise of those rights in such manner as may be deemed most beneficial to the public at large: Provided they do not interfere with vested rights which have been granted to individuals.’ APPLEBY v. CITY OF NEW YORK, 271 U.S. 364 (1926)

History of Unalienable Rights

In England as with much of the medieval world until the 16th century, people accepted the view called the “devine right of kings” to govern. Monarchs claimed that God gave kings the right to govern, and the king would then grant rights, privileges and titles to people. To the extent that the English people enjoyed freedoms, it was because the King of England had signed the Magna Carta. Because rights did not inherently belong to each individual under that current framework, English society accepted many inequities that would not be accepted today, such as slavery, indentured servitude, and limited rights for women.

The concept of unalienable rights in America extends as far back as 1620, when the first Pilgrims arrived on the shores of what is now Massachusetts, in search of religious freedom. According to Governor William Bradford, it was the unending attack on the rights of religious minorities in Britain which convinced the Pilgrims that leaving England was the only way to secure their liberties:

“The one side laboured to have the right worship of God and discipline of Christ established in the church… The other partie…endevored to have the episcopall dignitie (after the popish manner) with their large power and jurisdiction still retained; with all those courts, cannons, and ceremonies, together with all such livings, revenues, and subordinate officers, with other such means as formerly upheld their antichristian greatnes, and enabled them with lordly and tyranous power to persecute the poore servants of God.” (History of Plymouth Plantation)

Other pilgrims soon followed those carried by the Mayflower.

As these early Christian communities continued to grow and flourish in the new world, the notion that each individual possesses inherent dignity, value, and freedoms which the government ought to protect, became a recurring theme in political discussions and in religious writings and sermons. Preachers, pastors, civic leaders, and lawyers drew extensively from the Bible’s teachings on morality, Creation, and the nature of God to support this position, and the American public was very receptive. By 1775 the concept of unalienable rights was firmly entrenched in the collective consciousness of the thirteen colonies, having been sharpened by decades of abuse and taxation under British colonial rule. The time was right for change. In the hope of achieving a new political construct dedicated to preserving each person’s God-given rights and liberties, American patriots severed all ties with the British Crown and initiated a daring war against the most powerful nation at that time:

“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” — The Declaration of Independence (1776)

“For the principle aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature.” — William Blackstone, Authority on English Law

“[A]ll men are born equally free,” and possess “certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity.” — George Mason, Father of the Bill of Rights

“To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness.” — James Madison, Father of the Constitution

“Nothing then is unchangeable but the inherent and inalienable rights of man.” — Thomas Jefferson, Author of the Declaration of Independence

“Among the natural rights of the colonists are these: First a right to life, secondly to liberty, thirdly to property; together with the right to defend them in the best manner they can.” — The Rights of the Colonists, by Samuel Adams; American Statesman, Patriot, and Founding Father

“The public good is in nothing more essentially interested, than in the protection of every individual’s private rights.” — William Blackstone, Authority on English Law

“The principle view of human law is, or ought always to be, to explain, protect, and enforce such rights as are absolute.” — William Blackstone

The successful conclusion of the War for Independence in 1783 left the Americans free of their British oppressors, but faced with the daunting task of creating a new type of government that would transform the dream of universally protected God-given rights into a practical reality. Nothing like this before had ever been attempted. Consequently, the representatives of the thirteen states who assembled for the constitutional convention in Philadelphia (1787) had no illusions that the destiny of the new nation lay in their hands. To their great credit, they soon produced a legal manuscript which is arguably the greatest charter of liberty the world has ever known: the Constitution of the United States of America. This document, along with its first ten amendments—commonly called the Bill of Rights—set forth the framework and mechanisms by which the unalienable rights of the People would be recognized and protected from overreaching officials. Simply put, the Constitution establishes a limited government (a Constitutional Republic) that is empowered to protect the unalienable rights of the People, and is prohibited from doing virtually anything else. After two hundred years, the principle of unalienable rights, though buffeted by statism, atheism, communism, and individual ambition, remains at the core of American political, legal, economic, and social theory:

“The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.” — Preamble to the Bill of Rights
(NOTE: This means the Bill of Rights is not a grant of rights, but a prohibition against government infringement. It also means the Bill of Rights takes precedence over the main body of the Constitution.)

“The right of the individual against the State has ever been one of our most cherished political principles. The American Constitution has set down for all men to see the essentially Christian and American principle that there are certain rights held by every man which no government and no majority, however powerful, can deny. Conceived in Grecian thought, strengthened by Christian morality, and stamped indelibly into American political philosophy, the right of the individual against the State is the keystone of our Constitution. Each man is free.” — President John F. Kennedy

“All men are made in the image of God; all men are brothers; all men are created equal; every man is heir to a legacy of dignity and worth; every man has rights that are neither conferred by nor derived from the state, they are God-given.” — Dr. Martin Luther King, Jr.

Freedom is one of the deepest and noblest aspirations of the human spirit. People, worldwide, hunger for the right of self-determination, [and] for those inalienable rights that make for human dignity and progress.” — President Ronald Reagan

“One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” — U.S. Supreme Court Justice Robert H. Jackson

“As drafters of our Bill of Rights, the Framers inscribed the principles that control today. Any deviation from their intentions frustrates the permanence of that Charter…” — Chief Justice of the U.S. Supreme Court William Rehnquist

Legitimate Exceptions

Despite the sacred nature of unalienable rights, there are circumstances when one or more of them can be legitimately abridged or violated. Of course, in order to protect the rights of peaceful people, it could sometimes be necessary to infringe the rights of aggressors. When the Constitution’s Framers wrote, in the Fifth Amendment, that “no person shall be…deprived of life, liberty, or property, without due process of law,” they were acknowledging that sometimes a person can be deprived of these rights, even though they are part of what it means to be a person. Under the Constitution of the United States and American legal tradition, there are at least six times when the unalienable rights of a person, or the nation at large, may be legitimately infringed or suspended:

  1. Due processCertain rights may be temporarily or permanently suspended through a court trial, or due process. If someone has committed a theft, for example, he may be found guilty by a jury of his peers, incarcerated, and thus lose a great deal of his personal freedom for a certain period of time. He may also be forced to turn over some of his property to settle the related fine or to pay restitution. In the most extreme criminal cases, such as capital murder, the accused may forfeit his right to life.
  2. Injunctions – A court may also issue an injunction to temporarily suspend a person’s right to conduct certain activities. Technically speaking, an injunction does not constitute due process, since no jury is involved. However, an injunction is generally regarded as an acceptable infringement on personal rights, inasmuch as it is a temporary measure and seeks only to block activities which may be harmful to others, or which may be found illegal at a subsequent trial. Nevertheless, injunctions cannot compel any person to do what is otherwise illegal or unconstitutional, such as forcing a witness to testify against himself or forcing a witness to change testimony which the witness believes to be true.
  3. Lawsuits to protect the rights of others – Although not explicitly stated in the Constitution, it is clear that the exercise of one person’s unalienable rights may not interfere with the exercise of another. U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. is alleged to have said, “The right to swing my fist ends where the other man’s nose begins.” In other words, a person is free to exercise his or her unalienable rights without restraint, so long as he harms no other person, nor prevents anyone from exercising their own rights. When conflict does arise, the offended party may sue in a court of law in order to have their rights restored, or to be made financially whole, by legal process.
  4. Eminent domain – Whenever there is a compelling need to appropriate privately owned real estate for use by the general public, the government may exercise the power of eminent domain to take the land. There are two provisos. First, the land must be used for a public benefit. Second, the owner must be fairly compensated for the cost of the land. The fair market value is the highest price the owner would get for the property, were he to make it publicly available. In the event that the owner and the government cannot agree on a price, an appraiser may be asked to help assess the value. If there is still no agreement, the case may be put before a court and both sides may produce expert witnesses to attest the property’s worth.
  5. Invasion or rebellion – In the event of an invasion of the United States, or a rebellion against the government, the right of habeas corpus may be temporarily withheld. Article I, Section 9, of the Constitution provides: “The privilege [right] of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”  A writ of habeas corpus is a judicial order that commands a prison official or jailer to bring a detainee before a judge to determine if said person is being lawfully held and, if not, to command his release. Anyone who objects to someone’s detention may petition for the writ. This right is therefore one of the surest guarantees of liberty, because it prevents the government from arbitrarily imprisoning those it sees as a threat to its power. The right may only be suspended when the nation faces imminent or actual invasion, or when a violent rebellion has been launched against federal personnel or property, and then only to the extent the “public safety” requires it.
  6. Direct taxation – Any activity or right that is taxed is necessarily infringed. In McCulloch vs. Maryland, U.S. Supreme Court Chief Justice John Marshall observed that “the power to tax involves the power to destroy.” The fiscal encumbrance of any unalienable right, therefore, is a violation of that right and may lead to its destruction. For that reason, the taxing power of Congress is strictly limited. For example, churches have special, limited tax exemptions.

Nature, scope and limits

The concept of “unalienable rights” draws controversy over how they are identified and enforced. In the eighteenth century, the definition that unalienable rights were defined by God, meant that the rights were not subject to the whim of the King to grant or withdraw. Social structures have evolved since then, so the debate has shifted to whether a particular right originates with God or is recognized by a particular society. In a society with freedom of religion, the practical definition of the nature, scope and limits of rights is not decided by theologians. If unalienable rights come from God, then people will differ on those rights in societies with many religions. For example, the early Mormon Church accepted polygamy, where a man could marry more than one woman at a time.

American society did not accept that as an unalienable right, and armed conflict resulted. Similarly, the Roman Catholic Church did not recognize the rights of people to divorce, while the views of American society as a whole viewed people as holding those rights. People can debate whether someone’s views on these subjects are inspired by God, but probably both sides could argue whether divorce or polygamy were included in “life, liberty and the pursuit of happiness.” So, in a democracy, individuals’ understanding of their unalienable rights get resolved in the context of maintaining social order through the rule of law. While unalienable rights should in theory be protected from the opinions of the majority, as a practical matter, if there is a consensus in society, legislation and litigation will result in the scope and limits of a right being set in a manner that does not reflect the opinions of a minority. Because consensus evolves over time, the latitude that people have to enjoy what they believe are unalienable rights can shift as well.

Natural insecurity

In a state of nature, Man’s natural liberties are very insecure. Threats that range anywhere from dangerous predatory animals to natural disasters, harsh weather and climate, disease, and immoral thieving men. By comparison, a tyrannical king seems to make a little more sense. In discussing the insecurity of Natural Rights, John Locke wrote:

If man in the state of Nature be so free as has been said, if he be absolute lord of his own person and possessions, equal to the greatest and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of any other power? To which it is obvious to answer, that though in the state of Nature he hath such a right, yet the enjoyment of it is very uncertain and constantly exposed to the invasion of others; for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit this condition which, however free, is full of fears and continual dangers; and it is not without reason that he seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties, and estates, which I call by the general name – property.

It is a simple matter of fact, an insecure single person uses property as a means to make their his life more secure. A house to protect self and family against the elements, animals, and other humans. A weapon to increase that security. Medicine to fight disease. Land which to build a house and which to farm.

This is why property is inseparable from Liberty, and without the right to property, there cannot be Liberty. Private property is the litmus test.

Threats and safeguards

A number of safeguards are built into the American system of government to protect our rights whether or not someone would classify them as “unalienable”. These include:

  • The Bill of Rights
  • Grand Juries
  • Jury trials (Petit Juries)
  • Habeas corpus
  • Popular vote of congressmen and senators
  • Recall of elected officials
  • Impeachment and removal of the President
  • The right to petition for redress of grievances
  • The right to demonstrate against the government
  • The right to publish critiques of the government
  • The right to petition a grand jury to indict officials
  • Constitutional checks and balances between the various branches of government
  • Limitation on Enumerated Powers to 19 (plus the power to remove the President)
  • The right to appeal executive or agency actions and lower court decisions to a higher court
  • The right to place referenda or citizen originated questions on the ballot
  • The right to abolish the government and start over

Recent threats to our unalienable rights come mainly from the exercise of government power. Of late, they include:

Human rights” is often used interchangeably with the term “unalienable rights.” The difference between these two concepts, however, is that unalienable rights are those authored by God. They are thus both irrevocable and nearly unlimited in scope. Man’s role is simply to discover and protect them. The common idea stems from the belief that the rights are inherent in all mankind. People from across the spectrum of political thought can protect these rights whether they believe in God or moral philosophy. The fundamental challenge is the difficulty to assert a right in a government or society that denies its existence. So, if a member of a society wants a new right recognized, a local political or legal process is involved. But if there were a universally recognized set of unalienable or human rights, then that person could argue that the universal right should apply in all societies.

When the Founders wrote in the Declaration of Independence that “all men are created equal,” they were not ignoring the obvious differences that make people individuals—differences in appearance, personality, aptitude, skills, and character. All men are equal in the sense that, since we are all human, we are born with certain inherent, natural, and unalienable rights. Those rights include “life, liberty, and the pursuit of happiness.” This essential equality means that no one is born with a natural right to rule over others without their consent, and that governments are obligated to apply the law equally to everyone.

Sources:

Chronological History of Events Related to Unalienable Rights

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