Inalienable rights?
Inalienable rights
“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.”
Americans like to cite their “RIGHTS” under the Constitution. The most vocal one is the second amendment to the US Constitution which second amendment advocate say is inviolable and should NOT be restricted by law. But is this an invioble (i.e. inalienable) right? It seems that if you review the philosophical history of rights, NONE of the rights in the Constitution are inalienable
Per James Rogers-associate professor of political science at Texas A&M University, “Alienate” is a term from property law. It means to transfer something. We alienate rights over property all the time by selling or given the property away. For example, the rights I have over the sofa I just bought are “alienable” rights. [1]
Keep this in mind- PROPERTY LAW.
One early philosopher on this subject was John Locke. “Locke wrote that all individuals are equal in the sense that they are born with certain “inalienable” natural rights. That is, rights that are God-given and can never be taken or even given away. Among these fundamental natural rights, Locke said, are “life, liberty, and property.”[2]
However, Locke was an outlier discussing property as inalienable. Other philosphers of freedom tended to turn to non-transferable, i.e. non-material, applications of inalienable. One can transfer property by sale or donation but one cannot transfer “life” or “liberty.”
To inform the discussion using a Wikipedia entry we can look at the rights in two modes: inalienable (natural) and legal:
a) Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are universal, fundamental and inalienable (they cannot be repealed by human laws, though one can forfeit their enjoyment through one’s actions, such as by violating someone else’s rights). Natural law is the law of natural rights.
b) Legal rights are those bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws). The concept of positive law is related to the concept of legal rights.
So we see a clear history of the discussion, distinction and philosophy of natural (inalienable) vs legal.
Let’s turn to the Constitutions and our founding documents.
The Declaration of Independence is certainly a founding document but it is NOT a GOVERNING document. Its purpose was to explain to the world mired in “divine right of kings’ the reasons the Americans do not feel the need to keep kneeling to King George. Jefferson wrote in the Declaration about inalienable rights “life, liberty, and the pursuit of happiness.” Notice he did not use Locke’s version, of which he would have been well aware, using property. Jefferson was arguably using the non-transferable version of the concept.
In the US Constitution, nowhere does Madison refer to any rights as inalienable. Based on discussion above we can rightly conclude that Madison’s Constitution (and all amendments following) regards to the concept of LEGAL rights, rather than natural or inalienable rights. Madison was as well educated philosophically as Jefferson. Both would have been steeped in the classics to their current modern philosophical models. If Madison had determined rights in the Constitution (AND its amendments per the process) were inalienable he would have likely wrote it so. He did not.
The Second Amendment is a convenient jumping off point primarily because its adherents claim it is inviolable and subject to NO regulation. Oddly, they do not claim this for any other amendment. The Bill of Rights only gets its name because it was deemed so as a means to pass the Constitution into law. But in reality, once we enacted an 11th amendment, the BoR just became ten amendments of what ultimately would be 27. The first ten are NO more important than the next 17.
The 15th Amendment says: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. — and goes further to say Congress shall have authority to enforce this. And Congress did- with, for example, the Voting Rights Act and its bipartisan renewal which was subsequently undermined by the US Supreme Court! [4] I won’t get into the ridiculous reasoning of Roberts etal on this ruling at this time usurping legislative control (which normally is an anathema to conservatives). The amendment clearly gives Congress the authority to ensure voting rights- Yet these rights are continually under regulation whether via ID laws, or poll taxes during Jim Crow, or other state level legislation. Nobody, for some reason, says voting rights are “inalienable” or inviolate.
The 14th amendment says, in part, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Again, “nor deny to any person within its jurisdiction the equal protection of the laws.”
Equal protection? We find this violated REPEATEDLY! Federal programs enacted for unemployment, Medicaid, voting access, etc., violated at the whims of given state legislatures. Access to the federal law and benefits depends on state residence and zip code. If you live in Michigan or California. ACCESS. Texas or Louisiana? DENIED
So we have 27 Amendments, a good which deal with INDIVIDUAL rights, yet only the second and sometimes the first and fourth, are deemed worthy of “unviobility” or being deemed “inalienable.” This all seems rather convenient to a given lobby group, don’t you think?
Ultimately, if Madison deemed rights in the Constitution INALIENABLE and invioble he would have written it so. He did not. The Constitution is LEGAL rights granted by the state.
Rights under the Constitution are not inalienable. You have no right to slander or yell “fire’ in a crowded theater under the first amendment. Under the fourth, the term “unreasonable” is subject to judicial oversight. Voting rights are subject (unfortunately) to state laws and social conditions.
(Nod to my son, Patrick Anderson Phd, with the initial discussion regarding inalienable which initiated my research).
[1] https://fee.org/.../why-it-matters-that-some-rights-are.../
[2] https://www.crf-usa.org/foundation.../natural-rights.html...
[3] https://en.wikipedia.org/.../Natural_rights_and_legal_rights
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[4] https://www.nytimes.com/.../26/us/supreme-court-ruling.html
