Unalienable rights are those which God gave to man at the Creation, once and for all. By definition, since God granted such rights, governments could not take them away. In America, this fundamental truth is recognized and enshrined in our nation's birth certificate, the Declaration of Independence:
"[A]ll men are created equal...[and] are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
It is important to understand that the very premise of our nation is the fact that these rights are "God-given." If they are not given to us by an Authority higher than human government, then any government action to abolish those rights would be against God's will. Rights that is subject to government restriction or license is called a privilege rather than a right. The Founding Fathers understood this principle and created a revolution in political theory by enacting, for the first time in history, a government specifically established to protect the rights that had been given to man by God.
"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."
According to the Founders, unalienable rights belong to each person by virtue of the fact that man is made in God’s image, and is therefore endowed with certain attributes, powers, freedoms, and legal protections as part of his essence. These rights are thus inseparable -- or unalienable -- from each person individually and from the human race in general. They are a gift from the Creator and it is impossible for government to alter or nullify mankind’s divine inheritance. Except in extremely rare and limited circumstances, the unalienable rights of a particular individual, or the population at large, cannot be suspended, abrogated, or diminished by government. When government does take action against a particular right, it may only do so to the extent necessary to address a genuine concern for public safety. (See "Legitimate Exceptions" below.) Unalienable rights automatically belong to each individual at the moment his or her life begins and continue throughout that person’s time on earth.
An exhaustive list of the unalienable rights possessed by man would probably fill several volumes. However, at a minimum they include the right to life, liberty, and the pursuit of happiness. In general, the courts have not decided which rights are unalienable and which are not. Nonetheless, some philosophers have identified the following items, derived from the American Bill of Rights, as expanding on these themes:
- To act in self-defense (personal, family, innocents, nation against tyranny). (Second Amendment)
- To own and carry at home and in public weapons (firearms and knives, etc.) for self-defense and for ensuring that the nation remains free against tyranny from enemies both foreign and domestic. (Second Amendment)
- To own and control private property (land, money, personal items, intellectual property, etc.)
- To earn a living and keep the fruit of one’s labor.
- To freely migrate within the country or to leave the country.
- To worship -- or not worship -- God in the manner one chooses. (First Amendment)
- To associate with -- or disassociate from -- any person or group. (First Amendment)
- To express any idea through print, voice, banner, or other media. (First Amendment)
- To be secure in one’s home, papers, and person against unwarranted searches and seizures (privacy). (Fourth Amendment)
- To be advised of the charges, in the event of arrest.
- To have a judge determine if the accused should be held for trial or for punishment.
- To be tried by a jury of one's peers and face one's accuser, in the event of being charged with a crime.
- To be tried by a jury of one's peers, in the event of a suit in which the disputed amount is substantive.
- To suffer no cruel or unusual punishment.
- To establish, monitor, control, and petition our servant government to help secure the above rights.
- To abolish said government, when it becomes destructive of these rights.
Early History in America
In England as with much of the medieval world until the 16th century, people accepted the view called the "devine right of kings" to govern. God gave a king the right to govern, and the king would then grant rights, privileges and titles to people. To the extent that the English people enjoyed freedoms, it was because the King of England had signed the Magna Carta. Because rights did not inherently belong to each individual, English society accepted many inequities that would not be accepted today, such as slavery, indentured servitude, and limited rights for women.
The concept of unalienable rights in America extends as far back as 1620, when the first Pilgrims arrived on the shores of what is now Massachusetts, in search of religious freedom. According to Governor William Bradford, it was the unending attack on the rights of religious minorities in Britain which convinced the Pilgrims that leaving England was the only way to secure their liberties:
“The one side laboured to have the right worship of God and discipline of Christ established in the church… The other partie…endevored to have the episcopall dignitie (after the popish manner) with their large power and jurisdiction still retained; with all those courts, cannons, and ceremonies, together with all such livings, revenues, and subordinate officers, with other such means as formerly upheld their antichristian greatnes, and enabled them with lordly and tyranous power to persecute the poore servants of God.” (History of Plymouth Plantation)
Other pilgrims soon followed those carried by the Mayflower.
As these early Christian communities continued to grow and flourish in the new world, the notion that each individual possesses inherent dignity, value, and freedoms which the government ought to protect, became a recurring theme in political discussions and in religious writings and sermons. Preachers, pastors, civic leaders, and lawyers drew extensively from the Bible’s teachings on morality, Creation, and the nature of God to support this position, and the American public was very receptive. By 1775 the concept of unalienable rights was firmly entrenched in the collective consciousness of the thirteen colonies, having been sharpened by decades of abuse and taxation under British colonial rule. The time was right for change. In the hope of achieving a new political construct dedicated to preserving each person’s God-given rights and liberties, American patriots severed all ties with the British Crown and initiated a daring war against the most powerful nation at that time:
- “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. 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, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
-- The Declaration of Independence (1776)
- “For the principle aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature.”
-- William Blackstone, Authority on English Law
- “[A]ll men are born equally free," and possess "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity.”
-- George Mason, Father of the Bill of Rights
- “To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre,
in favor of private rights and public happiness.”
-- James Madison, Father of the Constitution
- “Among the natural rights of the colonists are these: First a right to life, secondly to liberty, thirdly to property; together with the right to defend them in the best manner they can.”
-- Samuel Adams, American Statesman and Patriot
- “The public good is in nothing more essentially interested, than in the protection of every individual's private rights.”
-- William Blackstone, Authority on English Law
- “The principle view of human law is, or ought always to be, to explain, protect, and enforce such rights as are absolute.”
-- William Blackstone
The successful conclusion of the War for Independence in 1783 left the Americans free of their British oppressors, but faced with the daunting task of creating a new type of government that would transform the dream of universally protected God-given rights into a practical reality. Nothing like this before had ever been attempted. Consequently, the representatives of the thirteen states who assembled for the constitutional convention in Philadelphia (1787) had no illusions that the destiny of the new nation lay in their hands. To their great credit, they soon produced a legal manuscript which is arguably the greatest charter of liberty the world has ever known: the Constitution of the United States of America. This document, along with its first ten amendments -- commonly called the Bill of Rights -- set forth the framework and mechanisms by which the unalienable rights of the People would be recognized and protected from overreaching officials. Simply put, the Constitution establishes a limited government (a Constitutional Republic) that is empowered to protect the unalienable rights of the People, and is prohibited from doing virtually anything else. After two hundred years, the principle of unalienable rights, though buffeted by statism, atheism, communism, and individual ambition, remains at the core of American political, legal, economic, and social theory:
- “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”
-- Preamble to the Bill of Rights
(NOTE: This means the Bill of Rights is not a grant of rights, but a prohibition against government infringement. It also means the Bill of Rights takes precedence over the main body of the Constitution.)
- "The right of the individual against the State has ever been one of our most cherished political principles. The American Constitution has set down for all men to see the essentially Christian and American principle that there are certain rights held by every man which no government and no majority, however powerful, can deny. Conceived in Grecian thought, strengthened by Christian morality, and stamped indelibly into American political philosophy, the right of the individual against the State is the keystone of our Constitution. Each man is free."
-- President John F. Kennedy
- "All men are made in the image of God; all men are brothers; all men are created equal; every man is heir to a legacy of dignity and worth; every man has rights that are neither conferred by nor derived from the state, they are God-given."
-- Dr. Martin Luther King, Jr.
- “Freedom is one of the deepest and noblest aspirations of the human spirit. People, worldwide, hunger for the right of self-determination, [and] for those inalienable rights that make for human dignity and progress.”
-- President Ronald Reagan
- “One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
-- U.S. Supreme Court Justice Robert H. Jackson
- “As drafters of our Bill of Rights, the Framers inscribed the principles that control today. Any deviation from their intentions frustrates the permanence of that Charter…”
-- Chief Justice of the U.S. Supreme Court William Rehnquist
Despite the sacred nature of unalienable rights, there are circumstances when one or more of them can be legitimately abridged or violated. Under the Constitution of the United States and American legal tradition, there are at least six times when the unalienable rights of a person, or the nation at large, may be legitimately infringed or suspended:
Certain rights may be temporarily or permanently suspended through a court trial, or due process. If someone has committed a theft, for example, he may be found guilty by a jury of his peers, incarcerated, and thus lose a great deal of his personal freedom for a certain period of time. He may also be forced to turn over some of his property to settle the related fine or to pay restitution. In the most extreme criminal cases, such as capital murder, the accused may forfeit his right to life.
A court may also issue an injunction to temporarily suspend a person’s right to conduct certain activities. Technically speaking, an injunction does not constitute due process, since no jury is involved. However, an injunction is generally regarded as an acceptable infringement on personal rights, inasmuch as it is a temporary measure and seeks only to block activities which may be harmful to others, or which may be found illegal at a subsequent trial. Nevertheless, injunctions cannot compel any person to do what is otherwise illegal or unconstitutional, such as forcing a witness to testify against himself or forcing a witness to change testimony which the witness believes to be true.
Lawsuits To Protect the Rights of Others
Although not explicitly stated in the Constitution, it is clear that the exercise of one person’s unalienable rights may not interfere with the exercise of another. U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. is alleged to have said, “The right to swing my fist ends where the other man's nose begins.” In other words, a person is free to exercise his or her unalienable rights without restraint, so long as he harms no other person, nor prevents anyone from exercising their own rights. When conflict does arise, the offended party may sue in a court of law in order to have their rights restored, or to be made financially whole, by legal process.
Whenever there is a compelling need to appropriate privately owned real estate for use by the general public, the government may exercise the power of eminent domain to take the land. There are two provisos. First, the land must be used for a public benefit. Second, the owner must be fairly compensated for the cost of the land. The fair market value is the highest price the owner would get for the property, were he to make it publicly available. In the event that the owner and the government cannot agree on a price, an appraiser may be asked to help assess the value. If there is still no agreement, the case may be put before a court and both sides may produce expert witnesses to attest the property’s worth.
Invasion and Rebellion
In the event of an invasion of the United States, or a rebellion against the government, the right of habeas corpus may be temporarily withheld. Article I, Section 9, of the Constitution provides: “The privilege [right] of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
A writ of habeas corpus is a judicial order that commands a prison official or jailer to bring a detainee before a judge to determine if said person is being lawfully held and, if not, to command his release. Anyone who objects to someone’s detention may petition for the writ. This right is therefore one of the surest guarantees of liberty, because it prevents the government from arbitrarily imprisoning those it sees as a threat to its power. The right may only be suspended when the nation faces imminent or actual invasion, or when a violent rebellion has been launched against federal personnel or property, and then only to the extent the "public safety" requires it.
Any activity or right that is taxed is necessarily infringed. In McCulloch vs. Maryland, U.S. Supreme Court Chief Justice John Marshall observed that "the power to tax involves the power to destroy." The fiscal encumbrance of any unalienable right, therefore, is a violation of that right and may lead to its destruction. For that reason, the taxing power of Congress is strictly limited. For example, churches have special, limited tax exemptions.
Nature, scope and limits
The concept of "unalienable rights" draws controversy over how they are identified and enforced. In the eighteenth century, the definition that unalienable rights were defined by God, meant that the rights were not subject to the whim of the King to grant or withdraw. Social structures have evolved since then, so the debate has shifted to whether a particular right originates with God or is recognized by a particular society. In a society with freedom of religion, the practical definition of the nature, scope and limits of rights is not decided by theologians. If unalienable rights come from God, then people will differ on those rights in societies with many religions. For example, the early Mormon Church accepted polygamy, where a man could marry more than one woman at a time. American society did not accept that as an unalienable right, and armed conflict resulted. Similarly, the Roman Catholic Church did not recognize the rights of people to divorce, while the views of American society as a whole viewed people as holding those rights. People can debate whether someone's views on these subjects are inspired by God, but probably both sides could argue whether divorce or polygamy were included in "life, liberty and the pursuit of happiness." So, in a democracy, individuals' understanding of their unalienable rights get resolved in the context of maintaining social order through the rule of law. While unalienable rights should in theory be protected from the opinions of the majority, as a practical matter, if there is a consensus in society, legislation and litigation will result in the scope and limits of a right being set in a manner that does not reflect the opinions of a minority. Because consensus evolves over time, the latitude that people have to enjoy what they believe are unalienable rights can shift as well.
Threats and safeguards
A number of safeguards are built into the American system of government to protect our rights whether or not someone would classify them as "unalienable". These include:
- The Bill of Rights
- Grand Juries
- Jury trials (Petit Juries)
- Habeas corpus
- Popular vote of congressmen and senators
- Recall of elected officials
- Impeachment and removal of the President
- The right to petition for redress of grievances
- The right to demonstrate against the government
- The right to publish critiques of the government
- The right to petition a grand jury to indict officials
- Constitutional checks and balances between the various branches of government
- Limitation on Enumerated Powers to 19 (plus the power to remove the President)
- The right to appeal executive or agency actions and lower court decisions to a higher court
- The right to place referenda or citizen originated questions on the ballot
- The right to abolish the government and start over
Recent threats to our unalienable rights come mainly from the exercise of government power. Of late, they include:
- Hate Crime laws - Infringe on the right to think in a politically incorrect manner; they also give special rights and status to privileged groups.
- McCain-Feingold law - Infringes on freedom of expression immediately before an election.
- Fairness Doctrine - Infringes on the right of a person (or group) to express only what they believe.
- Executive Orders - Hundreds of directives issued by the President carrying the force of law, but not legislated by Congress.
- The War on Terror - Military Tribunals / Denial of Habeas corpus / Rendition / PATRIOT ACT / FISA Violations
- The War on Drugs - Asset Forfeiture Laws (permit the government to deprive someone of their property without due process.)
- U.S. Supreme Court Kelo decision - Distortion of the power of eminent domain, allowing the government to take land which belongs to one private person or group, and give it to another. See income redistribution.
- Suspension of Habeas corpus during the war on terrorism.
"Human rights" is often used interchangeably with the term "unalienable rights." The difference between these two concepts, however, is that unalienable rights are those authored by God. They are thus both irrevocable and nearly unlimited in scope. Man’s role is simply to discover and protect them. The common idea stems from the belief that the rights are inherent in all mankind. People from across the spectrum of political thought can protect these rights whether they believe in God or moral philosophy.
The fundamental challenge is the difficulty to assert a right in a government or society that denies its existence. So, if a member of a society wants a new right recognized, a local political or legal process is involved. But if there were a universally recognized set of unalienable or human rights, then that person could argue that the universal right should apply in all societies.
In the 20th century, secular concepts of human rights proliferated: the Universal Declaration of Human Rights; the American Convention on Human Rights; the African Charter on Human and Peoples' Rights; the European Convention of Human Rights; various United Nations conferences' declarations on the environment, economic development, AIDS, and other topics; and the Geneva Conventions and their additional protocols.
The most well-known example of human rights is the United Nations 1948 Universal Declaration of Human Rights or UDHR. This document contains thirty articles listing about fifty rights authored and approved by the UN under the leadership of Eleanor Roosevelt, among others. At the time the UN Declaration was ratified by its members, it was hailed by Americans as a major advancement in the cause of liberty.
The Universal Declaration provides:
- Article 29 (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
The first International Conference on Human Rights was held in Tehran, Iran, in 1968. A powerful bloc of Asian, African, and Arab states successfully asserted their control over the UN Human Rights Program. Their aggressive conference diplomacy was the culmination of a major transition in UN politics, with supposedly Western notions of individual freedom rejected in favor of an agenda that privileged economic modernization and the collective rights of peoples in Third World nations over those of individuals in those nations. Twenty years after the iconic image of Eleanor Roosevelt holding the Universal Declaration of Human Rights, the residual elements of the program she presided over were repudiated in a storm of insistent demands from the new anti-colonial order.
The UDHR implicitly asserted that human rights are superior to notions of state sovereignty and called for the imposing of moral standards across the globe. These notions of universal human rights derive in part from Wilsonianism--the efforts of President Woodrow Wilson after World War I. They were reiterated in 2002 by President George W. Bush in his refusal to recognize Iraqi sovereignty and his efforts to impose a new democratic system of governance upon Iraq, and are a component of the Neoconservative effort to spread democracy in the Middle East, even in places like Iraq and Afghanistan. The UN has supported this program, but the high cost has troubled Americans.
Deeply influenced by the UN's 1948 Universal Declaration of Human Rights, the Indian constitution provides for a host of rights, including the right of equality, cultural and religious freedoms, and the right to education. Discrimination based on race, caste, gender, birthplace, and religion was subsequently outlawed. Yet, political and social realities have intruded. Because of India's multiplicity of religious and ethnic groups, each with their own traditions and beliefs, and the complex interplay between these groups, the principles contained in the constitution have not always been followed in practice.
- ↑ Burke (2008)
- Burke, Roland. "From Individual Rights to National Development: the First UN International Conference on Human Rights, Tehran, 1968," Journal of World History 2008 19(3): 275-296, in EBSCO
- Devine, Carol et al. Human Rights: The Essential Reference (1999) online edition
- Langley, Winston E. Encyclopedia of Human Rights Issues since 1945 (1999) online edition
- UN. Human Rights: A Compilation of International Instruments - Vol. 1 pt. 1 (2002) by Office of the United Nations High Commissioner for Human Rights Geneva; online edition