Investigating inalienable rights

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May 14, 2008 No Comments ›› Greg Jones

Investigating inalienable rights

Forthcoming from the University of Missouri Kansas City Law Review (http://www1 NULL.law NULL.umkc NULL.edu/lawreview/index NULL.htm) is an article co-authored by Professor Craig Stern of Regent University School of Law and yours truly entitled The Coherence of Natural Inalienable Rights.  The article is available for download (http://papers NULL.ssrn NULL.com/sol3/papers NULL.cfm?abstract_id=1129745) from the Social Science Research Network website (SSRN).  The article explores the prerequisites for a coherent theory of natural inalienable rights.  It argues that a proper a theory of inalienable rights requires, at least: (1) that a distinction must be made between a right and its object; (2) true inalienability, that is, the right absolutely cannot be separated from the person; and (3) a transcendent legal order, which is to say, it requires God (or something approximating Him).  These are cumulative points and none can be overlooked if one wishes to understand the basis upon which the Founders staked our independence and our constitutional order. 

The genesis of this article stems from a passage in Judge Robert Bork’s best-selling book, Slouching Towards Gomorrah (http://www NULL.amazon NULL.com/Slouching-Towards-Gomorrah-Liberalism-American/dp/0060987197) in which he stated that the Declaration of Independence employs mere “rhetorical flourishes” when it speaks of everyone being “endowed by their Creator with certain unalienable Rights” because “[t]he ‘unalienable Rights’ of the Declaration turned out, of course, frequently to be alienable.  The Fifth Amendment to the Constitution, for example, explicitly assumes that a criminal may be punished by depriving him of life or liberty, which certainly tends to interfere with his pursuit of happiness.”  In this discussion, Judge Bork assumes that inalienable rights do not, in fact, exist because people are deprived of life, liberty, and property all the time. 

This is a common but unfortunate error that causes people to misread both American history and law.  It leads many to claim that a titanic shift in the philosophy of the Founders occurred between the penning of the Declaration and the ratification of the Constitution.  Historians and political scientists often speak of a “radical” strain of thought during the Revolution that was dethroned by “practicality” during the drafting and ratification of the Constitution.  These experts deem such an explanation to be necessary because they fail to see inalienable rights underlying the framework of the Constitution.  In part, this article seeks to show that the apparent philosophical gulf between the Declaration and the Constitution is an optical illusion when seen through the lens of a proper theory of inalienable rights. 

Perhaps the more dire consequence of misunderstanding inalienable rights is that it robs those rights of their inherent power.  If inalienable rights are not truly inalienable—if they are, in fact, just “rhetorical flourishes” which disappear in the wake of hard practicality—then the liberty, individuality, and dignity of human beings are tangibly reduced.  To take one obvious historical example, an entire race of human beings was held in slavery against their will in this country for some 150 years.  If the right to liberty is not truly inalienable to human beings, then those people possessed no moral or legal claim to freedom prior to this country’s change in policy brought about by the 13th Amendment to the U.S. Constitution.  But of course they did possess the right to be free despite being deprived of their freedom in fact.  The deprivation did not and could not erase their claim to be free from involuntary servitude.  As this history starkly illustrates, one’s understanding of inalienable rights carries carries concrete consequences. 

Some precedents from the United States Supreme Court—especially the infamous “mystery of human life” passage from Planned Parenthood v. Casey (http://www NULL.law NULL.cornell NULL.edu/supct/html/91-744 NULL.ZO NULL.html) (1992)—flatly contradict this philosophical understanding of inalienable natural rights.  Professor Stern and I hope that in some small way this article (http://papers NULL.ssrn NULL.com/sol3/papers NULL.cfm?abstract_id=1129745) will serve to correct the wayward thinking of the Court and others which has divorced a transcendent legal order from our legal rights, with truly tragic results. 

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