Rights You Cant Give Away

Rights You Cant Give Away

via First Things | On the Square by ft@firsthings.com (James R. Rogers ) on 6/4/12

Most Americans know the Declaration of Independence states that God endows people with certain unalienable" rights. When I ask my students what it means for a right to be inalienable, they respond that it means that government cannot take those rights away. I follow up that modal answer by asking whether that means that government can then take away rights that are alienable. At that point we usually need to pause to consider a bit more rigorously what it means for a right to be inalienable.

My students miss the point of the adjective. It is no less wrong for the government to take away an alienable" right than it is for the government to take away an inalienable" right. The difference between the two isnt that one can be taken away while the other cannot. Rather, an inalienable right cannot be given away by the person who has it. Inalienability" is a restriction on the set of choices that individuals can make.

The Declaration borrows the word from property law. An alienable" right over property means that the property can be sold or given away by the owner. Property that is inalienable" cannot be transferred by the owner. The dramatic backdrop in several of Jane Austens novels, notably including Pride and Prejudice, comes from property that is inalienable. The estate in the story has been entailed" to the first-born male of each generation. While Mr. Bennet has use of the property during his lifetime, because he has no son, the property will go automatically to Mr. Collins on his death. Mr. Bennet cannot sell the land permanently (although he can rent the land out during his lifetime), and he cannot give it away to his wife, daughters, or to anyone else. Ownership of the estate in inalienable; this inalienability limits what Mr. Bennet can do with the estate.

Rousseau explains the notions application in political theory:

If a private citizen, says Grotius, can alienate his liberty and make himself another mans slave, why should not a whole people do the same, and subject themselves to the will of a King? The argument contains a number of ambiguous words which stand in need of explanation. But let us confine our attention to one only alienate. To alienate means to give or to sell.
But what is the practical significance of a right being inalienable? Why would an individually voluntarily become a slave, let alone an entire community?

Throughout human history, many peoples have not had a strong yet limited government to call upon for their protection, and isolated communities became easy prey for groups of roving bandits unless they secured protection from a warrior class. In some places these powers grew over time until the population was effectively reduced to the status of slaves. Other pressures could induce populations to cede their rights. Consider the report in Genesis 47 in which, as a result of the pressure of famine, Joseph effectively bought" the Egyptians for Pharaoh and reduced them to slavery.

There is a very practical use to some rights being inalienable." Instead of being inalienable, if rights were alienable, then when we observe a political community in effective slavery to its leaders, we would need to trace the history of agreements between that community and its leaders, much like clearing the title for a house, to assess whether their reduced political status was just or unjust (i.e., some tyrants may hold their power justly if rights were alienable). But if these rights are inalienable, the actual history of agreement would not matter-the people themselves did not have the right to alienate what are inalienable rights, and therefore they hold those rights whether they purported to transfer them to their political leaders or not. We would know that every tyranny is unjust no matter the history of consent between the people and their leaders.

But what relevance might a discussion of roving bandits and consensual slavery have to the political questions facing the U.S. today?

Take modern discussions of a right to die" and assisted suicide." The discussion is precisely one of whether we understand life to be an inalienable right or whether life is an alienable right. An inalienable right to life means that the decision whether to continue ones life is not a matter solely within the domain of an individuals liberty.

That liberty includes a right to die"meaning a right of an individual to choose to end his life at his discretionstrikes at the very heart of the aspirations of U.S. government as reflected in the Declaration. This not simply a quaint historical fact: In the Declarations theory, life being an alienable right is a postulate of despotism.

Secondly, while the god-talk in the philosophy of John Locke (the philosopher who most directly influenced this part of the Declaration), is often taken to be superfluous to his philosophical argument, in reality its not. Locke argues that life is an inalienable right precisely because God owns us and, therefore, we do not own ourselves. For Locke, human self-ownership would entail that all rights are alienable rights. Divine ownership" of the human person is a necessary predicate for rights to be inalienable in his view. There are no inalienable rights without a Creator who endows those rights.

To be sure, this raises as many questions as it answers. What is the relationship between the Declarations affirmations of inalienable rights and the positive law of the U.S. Constitution, both historically and today? What is the nature of the Creator" affirmed in the Declaration and what is the minimal set of attributes this Creator must have in order to endow humanity with inalienable rights? What does it mean if the majority of U.S. citizens at some point no longer affirm any deity consistent with the documents upon which their governments are, or were, based? Can a self-standing philosophy of human dignity" substitute for the role that God plays in the theory of the Declaration, or does the edifice of inalienable" rights necessarily collapse when humans, rather than God, own" themselves?

These are important questions that stem from recognizing that the concept of inalienable rights isnt an issue merely when governments that grab power from their citizens without their consentit would be just as wrong for governments to grab those rights even if rights were alienablerather, inalienable rights inure against the possibility that people in some situations can be induced to give those rights away.

James R. Rogers is department head and associate professor of political science at Texas A&M University. He leads the New Man" prison ministry at the Hamilton Unit in Bryan, Texas, and serves on the Board of Directors for the Texas District of the Lutheran Church-Missouri Synod.

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