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Inalienable Rights

March 3, 2010

This is a theme that recurs here, the idea that because we enjoy the inalienable rights of life, liberty and the pursuit of happiness, that whenever the government does something that we dislike as an individual then our rights are infringed upon. Are they?

The idea of inalienable rights arose from the development of the idea of natural law and natural rights during the enlightenment, although the precepts of the philosophy existed in the stoic philosophy and Islamic jurisprudence.

John Locke developed the theory once again in the 1600’s identifying them as “life, liberty, and estate”, as did others. Locke was a very strong influence upon Jefferson who essentially appropriated his ideas for inclusion in the Declaration of Independence. Locke originally expounded upon this theory in his Two Treatises of Government.

Written in 1689 the second Treatise lays out Locke’s idea of a civil government based upon natural (inalienable / unalienable) rights and the social contract. Here he lays out the rights that people enjoy in a state of nature, i.e. a state in which no government or civil authority exists, and people are under no compunction to obey anyone but themselves and their own whims. Where others believed that those existing in a state of nature and thus enjoying the perfect freedom of their inalienable rights would be living in perfect happiness, Locke realized that in reality such a state would be anarchy. To avoid such a state, according to Locke, men enter a social contract and form civil societies. In Locke’s view however men do not lose their inalienable rights, as they do under Hobbes’s view of the social contract, they instead should be protected by that society –

IF man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom? Why will he give up this empire, and subject himself to the dominion and control of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property. (2nd Tr., 123)

Once that society is formed the people are under obligation to submit to the laws of the society, his rights are subsumed –

And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation, to every one of that society, to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact, if he be left free, and under no other ties than he was in before in the state of nature. For what appearance would there be of any compact? what new engagement if he were no farther tied by any decrees of the society, than he himself thought fit, and did actually consent to? This would be still as great a liberty, as he himself had before his compact, or any one else in the state of nature hath, who may submit himself, and consent to any acts of it if he thinks fit.

For if the consent of the majority shall not, in reason, be received as the act of the whole, and conclude every individual; nothing but the consent of every individual can make any thing to be the act of the whole: but such a consent is next to impossible ever to be had, if we consider the infirmities of health, and avocations of business, which in a number, though much less than that of a common-wealth, will necessarily keep many away from the public assembly. To which if we add the variety of opinions, and contrariety of interests, which unavoidably happen in all collections of men, the coming into society upon such terms would be only like Cato’s coming into the theatre, only to go out again. Such a constitution as this would make the mighty Leviathan of a shorter duration, than the feeblest creatures, and not let it outlast the day it was born in: which cannot be supposed, till we can think, that rational creatures should desire and constitute societies only to be dissolved: for where the majority cannot conclude the rest, there they cannot act as one body, and consequently will be immediately dissolved again. (2nd Tr, 97, 98)

Thus the objection of an individual does not invalidate or make unjust the rules of society. Those who insist that their rights are supreme are in fact attempting to live outside the civil society and break the social contract.

This state exists as long as the state protects the three inalienable rights, life, liberty and property (or pursuit of happiness in the case of the Declaration of Independence) once this ceases to be the case then the members of that society have the right to overturn it –

And to this I say, that every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway; and in effect, it reaches as far as the very being of any one within the territories of that government. (2nd Tr., 119)

(…)

But though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure every one’s property, by providing against those three defects above mentioned, that made the state of nature so unsafe and uneasy. And so whoever has the legislative or supreme power of any common-wealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the force of the community at home, only in the execution of such laws, or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion. And all this to be directed to no other end, but the peace, safety, and public good of the people. (2nd Tr., 131)

(…)

These are the bounds which the trust, that is put in them by the society, and the law of God and nature, have set to the legislative power of every common-wealth, in all forms of government.

First, They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court, and the country man at plough.

Secondly, These laws also ought to be designed for no other end ultimately, but the good of the people.

Thirdly, They must not raise taxes on the property of the people, without the consent of the people,[defined in 140 as the majority] as given by themselves, or their deputies. And this properly concerns only such governments where the legislative is always in being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves.

Fourthly, The legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have. (2nd Tr., 142)

(…)

The reason why men enter into society, is the preservation of their property; and the end why they chuse and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which every one designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society. What I have said here, concerning the legislative in general, holds true also concerning the supreme executor, who having a double trust put in him, both to have a part in the legislative, and the supreme execution of the law, acts against both, when he goes about to set up his own arbitrary will as the law of the society. He acts also contrary to his trust, when he either employs the force, treasure, and offices of the society, to corrupt the representatives, and gain them to his purposes; or openly pre-engages the electors, and prescribes to their choice, such, whom he has, by sollicitations, threats, promises, or otherwise, won to his designs; and employs them to bring in such, who have promised before-hand what to vote, and what to enact. Thus to regulate candidates and electors, and new-model the ways of election, what is it but to cut up the government by the roots, and poison the very fountain of public security? for the people having reserved to themselves the choice of their representatives, as the fence to their properties, could do it for no other end, but that they might always be freely chosen, and so chosen, freely act, and advise, as the necessity of the common-wealth, and the public good should, upon examination, and mature debate, be judged to require. This, those who give their votes before they hear the debate, and have weighed the reasons on all sides, are not capable of doing. To prepare such an assembly as this, and endeavour to set up the declared abettors of his own will, for the true representatives of the people, and the law-makers of the society, is certainly as great a breach of trust, and as perfect a declaration of a design to subvert the government, as is possible to be met with. To which, if one shall add rewards and punishments visibly employed to the same end, and all the arts of perverted law made use of, to take off and destroy all that stand in the way of such a design, and will not comply and consent to betray the liberties of their country, it will be past doubt what is doing. What power they ought to have in the society, who thus employ it contrary to the trust went along with it in its first institution, is easy to determine; and one cannot but see, that he, who has once attempted any such thing as this, cannot any longer be trusted. (2nd Tr., 222)

but it is not societies responsibility to conform to the will of the individual, as Locke notes they can remove themselves to another society more of their liking. Even in the case of rebellion man can never return fully to the state of nature and perfect enjoyment of his natural rights because he has given over a portion of those rights to society –

To conclude, The power that every individual gave the society, when he entered into it, can never revert to the individuals again, as long as the society lasts, but will always remain in the community; because without this there can be no community, no common-wealth, which is contrary to the original agreement: so also when the society hath placed the legislative in any assembly of men, to continue in them and their successors, with direction and authority for providing such successors, the legislative can never revert to the people whilst that government lasts; because having provided a legislative with power to continue for ever, they have given up their political power to the legislative, and cannot resume it. But if they have set limits to the duration of their legislative, and made this supreme power in any person, or assembly, only temporary; or else, when by the miscarriages of those in authority, it is forfeited; upon the forfeiture, or at the determination of the time set, it reverts to the society, and the people have a right to act as supreme, and continue the legislative in themselves; or erect a new form, or under the old form place it in new hands, as they think good. (2nd Tr., 243)

My original question was whether our inalienable rights are infringed upon when the government passes a law that we as individuals don’t like. The answer is mainly no. When we gave or consent to the government we surrendered a portion of our individual sovereignty for the security that society provides us. If the government engages in acts so outlandish that it violates it’s basic reason for being, protection of life, liberty, and the pursuit of happiness then we are at liberty to assert ourselves and change the government. Until that time men who have given, either their tacit or explicit consent are bound to obey the laws of that society.

(Just for fun go through Locke’s work and see how many of the grievances in the Declaration you can find mentioned)

(source)

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6 Comments leave one →
  1. March 3, 2010 9:12 am

    That’s a good post, but ultimately sorely incomplete. Inalienable or “fundamental” rights are exempted from societal infringement. You don’t have to read any further than Amendments 1 and 2 to know this.

    The answer is no, individuals do not submit their inalienable rights to the social compact. That is simply untrue and false as a matter of Constitutional and Natural law.

  2. jenn1964 permalink*
    March 3, 2010 10:10 am

    **Add – Sorry I don’t mean to sound bitchy or preachy. I appreciate the comments and I didn’t realize how mean I sounded until I had hit post**

    In my opinion you do have to read further. Both the first and second amendment derived from other philosophical works including the works of John Locke. In the case of the second amendment – it derived directly from the English Bill of Rights which were rightsgranted by the state not derived naturally.

    To claim that under the constitution those rights cannot and have nlot been denied by the individual states is to ignore history. Until the passage of the 14th amendment the Bill of Rights did not apply to the states and they routinely denied “fundamental rights” It was illegal in some states to advocate abolition, states had official religions, free blacks were denied the ownership of guns. Blacks were denied citizenship under Dredd Scott. To claim that under natural law they cannot be submitted to the social contract you have to ignore what Locke wrote in plain language.

    Thomas Paine probably agreed with your position, but he wrote Rights of Man in 1791 long after the Declaration so I don’t think it can be legitimately applied here. And to be honest I haven’t read Rights of Man so I can’t say for sure he does agree with you, and I don’t have time to go through all 396 pages. Given the way the French Revolution turned out my guess is that he did advocate an near anarchic state in which no government held legitimacy. That ultimately led to Napoleon.

  3. March 3, 2010 10:40 am

    “Bitchy or preachy”? Huh? Jenn I’m from Jersey, you couldn’t sound bitchy or preachy with me if you tried. Relax.

    “In the case of the second amendment – it derived directly from the English Bill of Rights which were rights granted by the state not derived naturally.”

    That’s true, but we learned our lesson. Obviously, if “rights” are “granted” by anyone other than a creator of all things, they can correspondingly be limited or taken away by the grantor. This, among other things is the great leap forward we made in 1787. I think that statement helps me, actually.

    “To claim that under natural law they cannot be submitted to the social contract you have to ignore what Locke wrote in plain language.”

    I do ignore a lot of what Locke says for that reason. If rights are natural, and I believe they are, then any philosophy that justifies their abrogation at the hands of a State comprised of men is incoherent and, frankly, wrong. There’s a reason there’s a bill of rights and it’s not so that the majority can infringe on the inalienability thereof.

    Yeh I’m no anarchist, I hope the CL comes back because he’s far closer to that level of libertarianism than I and can respond more intelligently on that issue. But I don’t have to hate all government to recognize where their authority ends. Several places into which their authority shouldn’t even start are those inhabited by the natural, inalienable rights of man.

    Seriously though, don’t even sweat sounding bitchy or preachy with me. Others may be a little less thick-skinned, for sure, but you couldn’t offend me if you tried.

    Great post. Thanks.

  4. March 3, 2010 10:59 am

    http://hotair.com/archives/2010/03/03/to-keep-and-bear-arms/

    I couldn’t have said it any better myself.

    There are most definitely some things we relinquish to government in order to operate peacefully amongst ourselves as a civil society.

    The right to keep and bear arms is not one of them.

  5. March 3, 2010 12:46 pm

    My original question was whether our inalienable rights are infringed upon when the government passes a law that we as individuals don’t like.

    Not necessarily.

    Thus the objection of an individual does not invalidate or make unjust the rules of society. Those who insist that their rights are supreme are in fact attempting to live outside the civil society and break the social contract.

    Even in the world today, there are slaves and slave masters who are supported by the majority/society. Yet, even though it may be legal and accepted, it remains unjust in the extreme.

    Neither majority nor law, make right.

    If so, how would a minority who is clearly in the right, oppose the majority who is clearly wrong, being that majority makes right?

    Our inalienable rights are neither granted nor enumerated by the declaration/constitution. Rights exist prior to government. Dred Scott was wrong and in violation of that man’s inalienable rights, no matter what the law and/or society said.

  6. March 3, 2010 12:53 pm

    “Our inalienable rights are neither granted nor enumerated by the declaration/constitution. Rights exist prior to government.”

    Yup. And that’s also why we have a right to keep and bear arms.

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