Democratic Underground - “Unalienable Rights”

The meaning of “unalienable rights” has generated some recent interest on this forum, so I thought I would post on the subject—I’ve been meaning to post on it for some time anyway. This subject tends to come up in debates about gun rights, and I think it is important.

What are unalienable rights? What did the term “unalienable rights” mean at the founding?

The strongest possible evidence regarding the meaning of a founding document arises from the document itself (properly understood in its historical context, of course). Let’s take a look at the relevant passage.

The Declaration of Independence:

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.

http://www.archives.gov/exhibits/charters/declaration_transcript.html

One approach would be to consult an authoritative legal dictionary, look up “unalienable” and draw a conclusion. Let’s try that:

Main Entry: un•alien•able
Pronunciation: "&n-'Al-y&-n&-b&l, -'A-lE-&-
Function: adjective
: not alienable : INALIENABLE

Following the crumbs leads to

Main Entry: alien•able
Pronunciation: 'Al-y&-n&-b&l, 'A-lE-&-
Function: adjective
: that may be changed over to another's ownership alienable interest in property> — alien•abil•i•ty /"Al-y&-n&-'bil-&-tE, "A-lE-&-/ noun

(Both definitions are from Dictionary.com. Merriam-Webster's Dictionary of Law. Merriam-Webster, Inc. http://dictionary.reference.com/browse/inalienable . Interestingly enough, I went to findlaw.com to see how they defined “unalienable” and discovered that they use the Merriam-Webster's Dictionary of Law too).

Based on this definition, we would conclude that an unalienable right is a right that cannot be transferred to another entity.

What would that mean? Let’s look at an example. Life is an unalienable right, according to the Declaration of Independence. The fact that a man’s life is his unalienable (birth)right means that no entity—whether government, corporation or a fellow human being—can legitimately and lawfully take possession of his life. That is true whether by theft—as the slavers did when they stole people—or by his actual consent.

Why would someone consent to have another own his life? In ancient times, people sold themselves into slavery in order to save their children from starvation, to pay off debts and for other reasons.

In modern times there are still people who—for their own personal reasons—commit themselves to others as slaves or property. A man may surrender himself to a dominatrix, for example. He may sign a contract. He may obey her every command. He may swear by all that he holds dear to be her property forever.

Under US legal theory, however, his oath and signed contract have no legal authority. Their arrangement is all well and good, so long as he consents to serve her. The moment that he changes his mind, the contract and oath are void. They cannot be enforced in any American court.

Does the modern definition of “unalienable rights” mean that there is no possible way that he can be separated from his right to life? Actually no. There is nothing in the definition—“not alienable” or not capable of being “changed over to another's ownership” that implies that it forever belongs him. The fact that ownership of his life cannot be transferred does not mean that it cannot be forfeited. He can forfeit his life by committing a crime so horrible—let’s say genocide on a Hitlerean scale—that it merits death. He would then have no right to live—not because it had been “changed over to another’s ownership” or alienated, but because it had been forfeited.

So using a modern dictionary, we conclude that an unalienable right is a right that:

Cannot be legitimately taken
Cannot be legitimately alienated—sold, given away or otherwise transferred to another entity
May be forfeited by the owner.

Our third conclusion is vulnerable, though based in common sense, and should be substantiated by more explicit evidence.

Even our first two conclusions must remain tentative, since we have other serious issues to address. First, there is more in another founding document—the Constitution—that bears on this subject. We also need to remember that we have relied entirely on a modern dictionary and have not considered how the term was used in the founding era. Legal language, too, can change over time.

What else do the founding documents—in this case the Constitution—have to say about unalienable rights?

Amendment V

No person shall be… deprived of life, liberty, or property, without due process of law...

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

AMENDMENT XIV

Section 1.
… nor shall any State deprive any person of life, liberty, or property, without due process of law...

The government may deprive a person of life or liberty—even though they are unalienable rights—after due process of law. Intuitively, that harmonizes perfectly with our third conclusion. Let’s step through how this would work.

(The second coming of) Adolph Hitler is born with the full rights of life, liberty and the pursuit of happiness that every human being enjoys. Unfortunately, like his namesake, he chooses to lead one of the greatest genocides in human history. He is accused and brought up on charges. During that trial (also known as due process of law) he is presumed innocent—up until the verdict is reached. Being presumed innocent, he is presumed to still enjoy the right to life.

When the verdict is reached, however, Hitler is no longer presumed innocent. The only remaining issue is what rights are forfeit as a result of his crimes, and for what duration. Let us say that—in perfect harmony with the US Constitution—the judge rules that his life is forfeit for the obvious duration of forever.

Now the state—whether that term means Ohio, Oregon or the USA—can justly execute Hitler. They can deprive him of his life. Please note carefully that they are not depriving him of his right to life. That would be impossible. His right to life cannot be taken away by the state. The state can recognize a forfeiture and act accordingly, but it cannot decide on its own to take the right of life away from a person who legitimately holds that right.

Here is the sequence of events.

Hitler was born with unalienable rights, including life, liberty and the pursuit of happiness
Hitler forfeited his life—his right to life, his right to live, his birthright of life—by committing genocide
The state held a trial—due process of law—during which it established the fact that Hitler had forfeited his life by committing genocide
Recognizing the fact that Hitler had forfeited his life, the state elected to execute him

If the state deprived someone of his life while that person still had a right to life, that deprivation would be a human rights violation. By the same token, if the state imprisoned someone thus depriving her of her right to travel freely in any state of the US while she still had the right to travel freely, that would be a human rights violation. Therefore, before the state can deprive a person of their life or of part of their liberty it must establish that the person has already forfeited her life or a part of her liberty by committing a crime.

It is perfectly legal to deprive someone of something that is not their right. That is true not only of the state but of appropriate private parties. For example, the man who breaks off his arrangement with his dominatrix does her no (legal) injustice. She does not—and cannot—legally own him. Similarly, a woman who breaks off sexual relations with a man does him no (legal) injustice. He does not—and cannot—legally own her body. Life and the liberty of bodily integrity are unalienable rights.

This all makes sense and harmonizes with the Constitution, but we still have a serious hurdle left. We haven’t established that our understanding agrees with the term “unalienable rights” as used in the founding era.

Let’s get a little closer to the founding:

Unalienable: incapable of being transferred.

…The natural rights of life and liberty are UNALIENABLE.

Bouviers Law Dictionary 1897 Edition (According to some internet sources, which I haven’t been able to confirm, the 1856 Edition says the same thing.)

http://books.google.com/books?id=CYZOAAAAYAAJ&pg=PA1155&dq=%22Things+which+are+not+in+commerce,+as+public+roads,+are+in+their+nature&hl=en&ei=DkJZTpulDMnUiALj0JmyCQ&sa=X&oi=book_result&ct=result&resnum=3&sqi=2&ved=0CDcQ6AEwAg#v=onepage&q=%22Things%20which%20are%20not%20in%20commerce%2C%20as%20public%20roads%2C%20are%20in%20their%20nature&f=false

That sounds familiar. “Incapable of being transferred” means the exact same thing as the modern law dictionary’s incapable of being “changed over to another's ownership.” The meaning hasn’t changed. Nothing about this definition implies that unalienable rights cannot be forfeited.

Ok, that’s what they thought about natural or unalienable rights in 1897 (and possibly 1856). Now let’s look at a contemporary of the founders—the most respected and most cited legal authority of the era.

Blackstone (1827):

Those rights, then, which God and nature have established, and therefore called natural rights, such as life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.

http://books.google.com/books?id=lxBo6zahhOoC&pg=PA35&dq=%22those+rights,+then,+which+God+and+nature+have+established%22&hl=en&ei=8URUTtuiMeHmiAL48KzSDA&sa=X&oi=book_result&ct=result&resnum=5&ved=0CD4Q6AEwBA#v=onepage&q=%22those%20rights%2C%20then%2C%20which%20God%20and%20nature%20have%20established%22&f=false

Blackstone says explicitly what the Declaration and the Constitution say implicitly: Unalienable or natural rights can neither be given nor taken, strengthened or weakened by government, but they can be can be forfeited. The government has the legitimate power to recognize the forfeiture and to act accordingly. This is very clear to any knowledgeable person who thoughtfully reads the Declaration of Independence and the Constitution.

Our understanding of “unalienable rights” is on solid footing indeed. It is supported by internal and external, current and founding era legal authorities. (It is also supported by US Supreme Court cases, but this OP is long enough already.)

Our understanding, though well supported, is controversial. So let’s look at an alternate understanding.

On Inalienable Rights (http://faculty.cua.edu/pennington/Law111/AdlerInalienableRights.htm) by Mortimer J. Adler, Ph.D, has recently been brought to my attention as a representative statement of an opposing view.

I can’t quote more than a few paragraphs, so I will summarize his key arguments by paragraph. (You can follow the link above to check my summation.)

Paragraph 1 (Paraphrase/Summary): There are civil, legal and constitutional rights, conferred by man-man institutions. They are alienable rights, because the institutions that conferred them can take them away.

Paragraph 2 (Paraphrase/Summary): Human or natural rights are different as they are the result of natural endowment. Since they are not given by man-made institutions, they cannot be taken away by those institutions. They are thus inalienable.

Paragraph 7 (Paraphrase/Summary): The Declaration says we have inalienable rights to life and liberty. What of criminals who are imprisoned or executed? Aren’t we taking away their lives and liberty? Then how can we still say that their lives and liberty are inalienable?

We are not taking away their liberty—we are taking away only a portion of their liberty. True they cannot travel freely across the US or decide when to go outside. But they can twiddle their thumbs or hum a bar of music. They can pray. They can meditate.

This leads to another fact that is being overlooked. Even if bound like a mummy, a person still has some control over himself. It is impossible to TOTALLY remove a human being’s liberty short of killing her or rendering her unconscious. Remember that, it will come up again.

As to executed prisoners, yes, we most definitely are taking away their lives. I can’t argue with Adler there.

Paragraph 8 (Paraphrase/Summary): It is easier to deal with the question of imprisonment than the question of execution.

Indeed, from Adler’s POV, this is true. I was heartened to see that he was smart enough to see it. Most people (unfortunately not all—there has been one outlier) I have debated have seen this point. Actually, the question of execution—and the Constitution’s treatment of it—is totally incompatible with Adler’s position.

At least he is intelligent enough to see it and honest enough to admit it.

Paragraph 9 (Paraphrase/Summary): The antisocial behavior that justifies imprisonment forfeits, not the right but its full exercise. Prisoners still have some liberty of action but their incarceration severely limits the exercise of that liberty.

Adler is conflating partial loss of liberty with full loss of liberty. As I pointed out above, full loss of liberty is impossible for conscious, living prisoners. The judge hasn’t sentenced them to full loss of liberty nor could she. But the liberty that they have lost was not in their possession—they had forfeited part of their right to liberty before being deprived of it.

Paragraph 10 (direct quote): “The right remains in existence both during imprisonment and after release from prison. If the prison warden attempted to make the prisoner his personal slave, that would be an act of injustice on his part, because enslavement would be a violation of the human right to the status of a free man. This human right belongs to those in a prison as well as those outside its walls.”

Here Adler’s conflation reaches full bloom. The right to the liberty that was forfeit does not remain in existence for the duration of the sentence. If the state imprisoned a man and thereby deprived him of an unalienable right he still retained, that would constitute a human rights violation. It is only because he forfeited the right that they can justly deprive him of it. And remember, the right forfeited is NOT the full right of liberty. Once again, it is impossible to FULLY deprive someone of his liberty short of death or a forced coma or other forced unconsciousness.

By conflating a full loss of liberty with the partial loss of liberty to which people are (and actually can be) sentenced, Adler allows the specter of personal slavery to the warden to be raised with apparent plausibility. The plausibility is only apparent.

Addler’s next sentence is interesting—personal slavery to the warden “would be a violation of the human right to the status of a free man.” I was under the impression that prisoners were not “free men”—even if they are not personal property of the warden.

It is true that if a prisoner lost his full right to liberty, he would have no rights to be violated by anyone taking possession of his body or doing anything whatsoever to him. But no one is, or ever can be under US law, sentenced to full loss of liberty. Not only is it practically impossible, approaching it would violate the Eighth Amendment’s protection against “cruel and unusual punishments”—a protection that operates before and after due process of law.

Paragraph 11 (direct quote):”When the criminal's term of imprisonment comes to an end, what is restored is not the individual's right to liberty (as if that had been taken away when he entered the prison), but only his fuller exercise of that right. It is the exercise of that right that is given back to him when he walks out of the prison gates, not the right itself, for that was never taken away or alienated.”

This is a bald assertion, not backed by any clear logic . Adler is, among other things, assuming his conclusions.

Paragraph 12 (direct quote):When we come to capital punishment, we cannot deal with the question in the same way. The death penalty takes away more than the exercise of the right to life. It takes away life itself.

The death penalty does not take away the right to life. The state cannot take away the right to life, it can only take away life. If the state is operating legitimately, it can only take away life from someone who has already forfeited their life and any and all rights to it. To take the life of someone who has not forfeited that life is a human rights violation.

Paragraph 13 (direct quote):If that right is inalienable, it cannot be taken away by the state, nor can it be forfeited by the individual's misconduct. It is one thing to forfeit the exercise of a right and quite another to divest one's self of a right entirely. What cannot be taken away by another cannot be divested by one's self.

These are a lot of unsupported assumptions that have no support in the legal term “unalienable rights” or even in “inalienable rights.” The last sentence is totally gratuitous. “What cannot be taken away by another cannot be divested by one's self”—if that were so, people would be incapable of committing suicide or even of reject medical care that another couldn’t legally deny them, since their life is an unalienable right. Adler is assuming his conclusions and taking serious shortcuts. Usually when a person has to take such radical shortcuts and make such bald assertions, it indicates that their arguments are agenda driven.

Paragraph 14: Addler reaches the agenda-driven result towards which his too easy conclusions have been tending—the death penalty is apparently unjustified and a violation of a natural human right.

Adler’s article takes no notice of any legal definitions or any historical uses of the terms “unalienable rights.” He defines the term “inalienable rights” as allegedly used in the Declaration of Indepenence to suit his argument. Also note that Adler’s conclusion means that the Constitution is in direct conflict with the Declaration of Independence. If life is an “unalienable right” and if that means that “it cannot be taken away by the state, nor can it be forfeited by the individual's misconduct” then the Constitution is wrong—twice!—when it says that life can be taken away “after due process of law.”

Adler doesn’t address the Constitution itself, so he is not obliged to address this inconsistency, but others who argue this position (and claim to be agreeing with the Constitution) are obliged to address it.

The theory that crime forfeits, not the criminal’s right but its full exercise is incompatible with both common sense and the Constitution. This is seen most sharply in the case of execution, but it is also clear in simple imprisonment. Every innocent person has the right not to be imprisoned. If the government imprisons an innocent person, that is a civil rights violation. That is why falsely imprisoned persons win lawsuits. To say that government can legitimately imprison a person who has a right not to be imprisoned is fascist.

Adler’s theory is illegitimate according to the founding documents.

****

What does the definition of "unalienable rights" have to do with arms rights and arms laws? The question often arises as to whether felons can legitimately be forbidden arms after their incarceration. Those who say that they cannot often take positions similar to Adler’s. But while it is true that life is an unalienable right and that self-defense and the right to effective tools of self-defense are rights that are part of that right, it does not follow that released felons have the same right to arms as others. Unalienable rights can be forfeited.

What I find offensive is that often on this board, people who despise America and her legal traditions haughtily presume to condemn us and our laws. As part of their efforts, they often attempt to teach what they don’t understand. This is one of the subjects about which I have been “taught” what seems, to me at least, to be utter nonsense.

There is a lot more evidence that I could produce; there are Supreme Court cases that clearly support this American understanding of unalienable rights—including cases bearing directly on the issue of armed felons.

But those who despise our country couldn’t care less what the Supreme Court has said—not because they can refute it logically, but because it isn’t the Supreme Court of Canada or of a European state or of Australia or New Zealand or the like. (And of course, it doesn't agree with their personal views.)

Dealing with these people, especially the appallingly ignorant and condescending ones--is draining and depressing, and I don’t always have the time or emotional energy to refute their nonsense. But I thought that someone here might find my thoughts interesting or even informative.

I would appreciate feedback. I may be confident in my conclusion—it harmonizes with current and founding era legal definitions, the Declaration of Independence, the Constitution and with Supreme Court cases that I haven’t bothered to cite—but I realize that I may have made errors. I am always open to considering other points of view and evaluating critiques of my positions made by intelligent people.

So what do you think?

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