June 21, 2013 This July 4th Americans celebrate their 237th Independence Day. The Declaration of Independence, signed during the midst of the American Revolution in 1776, was not just a statement of grievances against the British monarchy but also a declaration of freedom from it, citing unalienable rights of self-governance. Please notice that I said un-alienable, not in-alienable rights. Most believe there is no real difference between the two words. But not so fast. When unalienable was replaced with inalienable it diminished the original intention of personal rights, among which are “life, liberty and the pursuit of happiness.”
The Declaration of Independence begins with the reason for the colonists’ separation from the Monarchy; a separation entitled by “the Laws of Nature and nature’s God.” (Capitalization and lack of capitalization is original.) It continues:
“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…”
Despite the fact that at the time of the Declaration unalienable rights were considered to be for white men only, the word, unalienable, refers to rights inherent to all humans, no matter gender or race. I find it interesting how the word unalienable is rarely used anymore and how modern versions of the Declaration now use the word inalienable. Even President Obama uses the word inalienable. What’s up with that?
Pay close attention to the difference between the definitions of unalienable and inalienable given below. They are subtle but very important.
Bouvier’s Law Dictionary (1856) defines unalienable: “Incapable of being transferred. Things which are not in commerce, as, public roads, are in their nature unalienable. Some things are unalienable in consequence of particular provisions of the law forbidding their sale or transfer; as, pensions granted by the government. The natural rights of life and liberty are unalienable.”
Blacks Law Dictionary, 2nd Edition, (1910) defines unalienable: ”Not subject to alienation; the characteristic of those things which cannot be bought or sold or transferred from one person to another such as rivers and public highways and certain personal rights; e.g., liberty.”
William Blackstone, 18th century Common Law English jurist and judge defined unalienable in his Commentaries on the Laws of England, 1:93:
“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.”
(“[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)
Essentially, unalienable rights are inherent to being human and exist forever outside of the world of commerce; they cannot be bought, sold or transferred…ever.
Now here is, INALIENABLE.
Bouvier’s Law Dictionary (1856) defines inalienable: “A word denoting the condition of those things the property in which cannot be lawfully transferred from one person to another. Public highways and rivers are inalienable. There are also many rights which are inalienable, as the rights of liberty or of speech.”
Black‘s Law Dictionary 2nd Edition (1910) defines inalienable: “Not subject to alienation; the characteristic of those things which cannot be bought or sold or transferred from one person to another such as rivers and public highways and certain personal rights; e.g., liberty.” (emphasis mine)
[Morrison v. State, 252 S.W.2d 97, 101, 1952] In this decision, the Missouri Court of Appeals defined inalienable rights as those rights incapable of being surrendered or transferred; at least without one’s consent. (emphasis mine)
U.S. Legal.com 2013 defines inalienable: “Inalienable right refers to rights that cannot be surrendered, sold or transferred to someone else, especially a natural right such as the right to own property. However, these rights can be transferred with the consent of the person possessing those rights.” (emphasis mine)
According to Bouvier’s Law Dictionary (1856), the meaning of inalienable began much the same as unalienable; but it changed over time starting with the 1910 definition. Inalienable has evolved to mean rights that can be transferred with the consent of the person having them. If someone consents to transfer their rights, those rights can no long be considered un-alienable, impossible to transfer, inherent human rights. They become rights “in commerce.”
Maybe you are scratching your head and still saying, so what? Here’s the deal. Inalienable rights (as currently defined) are transferable by one’s consent via contract, which includes the concept “social contract.”
Social contract theory originated with the political philosophy of Plato, was popularized by Thomas Hobbes in the 17th century, and then embedded deep into the concept of the U.S. Constitution and U.S. Government in 1787.
What is it? A social contract is a political philosophy typically defined as an agreement a nation’s people make with their government for mutual benefit. But actually, it is an agreement the people tacitly consent to (without signature); the belief being the state only exists to serve the will of the people and therefore as part of the deal, the people give up some rights so government can provide safety and order.
In conclusion, the social contract Americans unwittingly made at the time of the U.S. Constitution was breached when unalienable rights became inalienable rights. Unalienable rights had originally been considered the same as one’s private property, which included all physical property, one’s labor and even privacy (part of liberty). However, unalienable rights became inalienable rights transferred in commerce to the government via statutory laws, regulation and taxation.
The Declaration of Independence refers to this potential loss of un-alienable rights when it states: “…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…”
The time has come for Declaration 2.0.
Think outside the box. Live outside the cage.