God Talk and Americans’ Belief in Inalienable Rights

Inscription in the Jefferson Memorial of the Declaration of Independence

Inscription in the Jefferson Memorial of the Declaration of Independence

I posted earlier this week regarding whether Americans still believe the Declaration of Independence’s affirmation that they “consent” to laws and taxes through their legislative representatives. There may be good reasons Americans no longer believe they really consent to the laws their representatives enact, but it is a striking change from the beliefs articulated during the founding era.

In considering whether Americans still believe the Declaration of Independence, we next consider the most-well known section in the Declaration, “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.”

There are, of course, entire books devoted to these few lines. A few observations, however. First, what is the link between there being a creator and persons being endowed with “unalienable” (or inalienable) rights?

Americans typically read the commitment to inalienable rights to mean that these are rights no government can take away. They’re right in that the government cannot take away these rights, but “inalienability” is irrelevant. After all, the government cannot just take way alienable rights either.

“Alienate” is a term from property law. It means to transfer something. We alienate rights over property all the time by selling or given the property away. For example, the rights I have over the sofa I just bought are “alienable” rights. If I sell the sofa to someone else, then I have alienated my right to use and to dispose of that sofa; I have transferred those rights to the purchaser. But if someone breaks into my house and steals my sofa (it is a sweet sofa), the fact that my rights over the sofa are alienable does not in any way lessen the fact that the person who stole my sofa committed an injustice.

So, too, with government action. Alienable rights cannot any more be taken away by someone than inalienable rights can be. Where the bite with a right being “inalienable” comes in is that inalienable rights cannot be given away. Inalienable rights constrain the holder of those rights in a way that alienable rights do not. Inalienable rights are rights that cannot be given away.

Inalienable rights are, for example, the dramatic backdrop in Jane Austen’s Pride and Prejudice and Sense and Sensibility. In both books the family’s property is entailed along the male line, meaning that the heir who receives the property in one generation only has the right to use the land during his lifetime. That heir cannot sell or otherwise transfer the land permanently (say, by giving it to his wife or daughters). Ownership is inalienable in the stories.

The Declaration’s affirmation that the rights mentioned are inalienable is in fact a restriction on what individuals can do with those rights. They cannot transfer them to anyone else.

Rousseau discusses the notion’s significance in explaining a passage from Grotius:

If a private citizen, says Grotius, can alienate his liberty and make himself another man’s 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 alienate. To alienate means to give or to sell.

This then begs answer to the question, why would anyone in his or her right mind give away the right to life, liberty, or the pursuit of happiness?

Of course, today, the discussion over assisted suicide and the right to die is precisely a discussion over whether life is an inalienable or an alienable right. John Locke, for example, comments that suicide is impermissible because life is an inalienable right.

As for alienating liberty, it’s easy to imagine in the past a community willingly ceding their liberty to strongmen in what is effectively a protection racket. Aristocrats initially were the warrior class. A community might give away a lot in terms of rights to be protected by a class of warriors from the depredations of roving bandits. Or even in the Bible, because of the pressure of famine, the Egyptians effectively sold their liberty to Pharaoh. They alienated their liberty to preserve their lives.

The practicality of affirming that rights are inalienable is when one observes despotism one does not need to inquiry into the history of consent and agreement to know that the despotism is wrong. If rights are in fact alienable, then it’s entirely possible that through a long trail of problems and pressures, a community was consensually reduced to the status of effective slavery. One would need to go, as it were, through all the past paperwork to know whether the despotic power was in fact just or unjust, consensual or not. But when rights are inalienable, it does not matter what the paper trail says, whether people purported to transfer their rights to the despot in the past. The despotism is perforce wrong because the people never had the ability to transfer the rights in the first place. They were inalienable rights.

To return to the original question, then, what is the relationship between a Creator and inalienable rights? Moderns often take the god-talk in the Declaration as little more than a nod to the superstitions of the time. Jettisoning the god-talk, however, jettisons the possibility of rights being inalienable.

In Locke, for example, the reason that life is inalienable is because humans don’t own themselves, God does. No one can dispose of the life of another person because doing so trenches on God’s rights. This includes the human himself or herself: We cannot commit suicide because God owns our lives, not we ourselves. So, too, we cannot become slaves to another because we are already, as it were, God’s slaves. The irony is that the more abased humanity is before God the greater the dignity humans must accord to each other; liberty, as well as life and the pursuit of happiness, are all the more protected because of rights humans don’t and can’t have over themselves. They are “unalienable.”

I realize that I haven’t discussed what it means for the right to pursue happiness to be inalienable. The phrase “pursuit of happiness” is read so differently today than when it was written that it needs its own column to discuss. (Here’s a hint, although a likely unhelpful one: The King James Bible, the one used predominately in the era, renders, for example, Proverbs 3 as “Happy is the man that findeth wisdom.”)

The bigger point is that the increasing skepticism of our age undermines the prerequisite for affirming the Declaration’s assertion that certain rights are inalienable. Don’t get my argument wrong. This is not an argument for religious belief: I think that promoting religious belief in order to make sense of the Declaration of Independence is a silly, even frightening, notion. Nonetheless, if indeed the argument of the Declaration is an argument fitted particularly for a religious people, then we need to ask ourselves what the implications are when Americans fail widely to affirm a crucial postulate in the Declaration’s argument. Put differently, the question is what the implications are if Americans as a people are today ill-suited for the Declaration’s argument, and what the implications are if the Declaration’s argument is ill-suited for America.

James R. Rogers

James Rogers is associate professor of political science at Texas A&M University, and is a fellow with the Institute for Science, Technology and Public Policy at the Bush School of Government and Public Service. He also served as editor of the Journal of Theoretical Politics from 2006 through 2013.

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  1. says

    James Rogers mentions Locke and Rousseau in relation to “unalienable rights,” but he fails to mention two more relevant sources: Rev. Francis Hutcheson (who coined the phrase “unalienable rights”) and Jean Jacques Burlamaqui (a professor of jurisprudence at the University of Geneva and the era’s leading authority on natural law). In a nutshell, unalienable rights correspond to the inescapable duties of piety and benevolence, and governments exist to secure these rights to be pious and benevolent. See “The Declaration of Independence without Locke: A Rebuttal of Michael Zuckert’s ‘Natural Rights Republic'” at https://www.academia.edu/29164747/The_Declaration_of_Independence_without_Locke_A_Rebuttal_of_Michael_Zuckerts_Natural_Rights_Republic_

    Regarding the Ciceronean view of leading American Founders, in which piety and benevolence are characteristics of the mature human and the prerequisite for happiness, see “Nature’s God: Cicero and the Declaration of Independence” at https://www.academia.edu/6508461/Cicero_Natural_Law_and_the_Declaration_of_Independence

    For a discussion of the Founders’ May 1776 anti-Lockean DEFINITION OF HAPPINESS (essential for understanding the “pursuit of happiness”), see “Safety and Happiness: The American Revolutionary Standard for Governmental Legitimacy” at https://www.academia.edu/1479704/Safety_and_Happiness_The_American_Revolutionary_Standard_for_Governmental_Legitimacy

  2. gabe says

    Perhaps, the question is:

    Without anything GREATER than one’s own self, can rights be secured? Upon what are they grounded?
    correspondingly, and what I suspect may be an underlying, if unstated theme of the essay, is without such ground can (again, ought?) one expect that the citizenry will recognize that rights are simply the other side of the coin of *obligations.*

    As to “happiness”, as understood in the day, it was rather different than the modern understand which tends toward the hedonistic / avaricious; that era’s understanding of happiness presupposed a moral, religious(ly) inclined or aware people pursuing a virtuous life BY fulfilling their obligations to others and themselves (wisdom, learning, prudence, temperance, etc.). Only then may rights / happiness be said to being pursued.

    Far cry from the modern lament: ” I want the world and I want it now!”

  3. Scott Amorian says

    Keep in mind that the DOI was the continuation of the Declaration of Rights issued by the Continental Congress of 1774. The rights referred to in the DOI were the rights enumerated in the Declaration of Rights. The DOR was a complaint of the violation of certain rights. The issues of rights discussed in 1774 were not resolved to satisfaction. The successive document of 1776 redressed those failures in accordance with natural law.

    Other issues over rights could have been mentioned in the 1776 document, but were not. King George public denied that he would continue to protect the colonies. That alone was cause for separation from Britain because it is the protection by the King that enables his sovereignty. This fact was not mentioned in the DOI. One would think that such an important issue of natural law would find a clear and prominent mention in the DOI. But it would not have been appropriate to include it in the DOI because it was not mentioned in the DOR. The DOI of 1776 was the redress of the failure of rights discussed in the DOR of 1774, no more, no less. Those certain unalienable rights were the rights mentioned originally in the DOR.

    There was no international court to make judgment in the case, but a judge still had to be called upon if the Americans were to have an authoritative ruling. The God of Natural Law was called upon to make the natural law case authoritative. Without the invocation of such a judge the DOI would have no standing since there would have been no court to have standing in. No court, no ruling. Therefore the court of God had to be appealed to.

    The theory of law in the DOI was theory found in natural law. Natural facts that did not need to be introduced were simply noted as being self evident. The non-self evident facts presented in the DOI were the facts of failure to respond appropriately to the violation of rights given that complaints had been made previously when a reasonable amount of time and effort were given to redress the violations. The redress did not occur. Therefore the judgment of God’s court of natural law must be that the colonies were independent.

  4. John Schmeeckle says

    In response to Scott Amorian, I think that the Declaration of Independence goes far beyond the 1774 declaration of rights and grievances by including HAPPINESS. The 1774 declaration mentioned the rights of life, liberty and property, which were summed up as SAFETY in the May 1776 resolution for independence, which also defined happiness in terms of virtue. The Declaration of Independence should be read as a continuation of this May resolution, which prominently mentions the principle of protection and sovereignty. Scott Amorian is mistaken in claiming that the Declaration doesn’t mention this principle. To quote from the Declaration’s denunciations of King George: “He has abdicated Government here, by declaring us out of his Protection and waging War against us.”

  5. says

    “The question is what the implications are if Americans as a people are today ill-suited for the Declaration’s argument, and what the implications are if the Declaration’s argument is ill-suited for America.”

    The preamble to the constitution for the USA offers hope for life much as a person’s religion may offer them hope for death.

    In our proposal for an achievable, perhaps better way of living, the Declaration’s argument served its purpose for the people past and present: the USA is independent of England. However, it is time to put English-derived “common good” aside so as to collaborate for the promise of the constitution for the USA.

    Willing citizens today may collaborate for comprehensive safety and security (worthy of another post and a book) so that each person may responsibly pursue personal interests during their brief journey in life rather than accept imposed religious-political doctrine. By “responsibly” I mean observing statutory law and cooperating-with if not collaborating-for comprehensive safety and security; amend the law when injustice is discovered. Institutions that cooperate for comprehensive safety and security may flourish in the USA, and dissident institutions may face constraint by statutory law. Thus, international institutions with canon that conflicts comprehensive safety and security must have accommodation that assures believers, both domestic and foreign, observe US statutory law.

    It seems self evident that the Declaration became obsolete when on June 21, 1788, nine states ratified the draft constitution for the USA. They established a nation of nine states which the four remaining free and independent states could join. The 1788 ratification was a consequence, but not a purpose of the Declaration of Independence.

    The history is boring to some: The loyal thirteen were English colonies until 1774, when they changed their style to states. In 1776, they declared war for independence. In February, 1778, the states signed a military alliance with France. France was in the Second Hundred Years War with England. France strategized and helped execute entrapment of the British at Yorktown, VA in 1781. England surrendered to France and the states. The Treaty of Paris, 1783 recognized thirteen free and independent states, naming each of them; the Continental Congress ratified it in January, 1784. The states struggled to remain a confederation, but some concluded they needed a nation.

    Two thirds of delegates signed the draft constitution on September 17, 1787, leaving 1/3 dissident-delegates for their reasons. Among reasons were 1) desire to include theism, in particular Christianity, in particular factional Protestantism, and 2) preference for governance by a confederation of states rather than by the people in their states. The purpose and aims of specifying the nation are in the civic agreement stated in the preamble. However, most people, encouraged by the political regimes, have neglected for 230 years the agreement stated in the preamble.

    The First Congress erroneously re-established factional Protestantism by hiring congressional chaplains. Today, in Greece v Galloway, a citizen who complains about legislative prayer is labeled “niggling.” I’m niggling. Further, they established theism, in particular factional Protestantism, now Judeo-Christianity in the practice of the First Amendment’s religion clauses. Islam seems to differ from Christianity and Judaism in that it is first a political doctrine and second a religious one. The religion clauses may be revised to promote thought, a human duty, rather than religion, an institutional imposition on the people.
    Political regimes revise history to advance their agenda. For example, in 1863, Abraham Lincoln said a nation emerged in 1776 and Civil-War-soldiers died so “government of the people, by the people, for the people, shall not perish from the earth.” However, a government with sufficient citizen-involvement had not existed and yet does not exist. Benjamin Franklin’s republican form of government has not been established much less preserved by the people. The people will always be divided between the willing and the dissidents to the moral agreement stated in the preamble. Likewise, President Trump is revisionist to say “Make America great again.” America cannot be great without a super-majority, perhaps 2/3, of citizens willing and collaborating to observe the civic agreement that is stated in the preamble.

    Inhabitants of this land have never been uniform. Daniel Boorstin in The Americans: the Colonial Experience (2010) quotes the Rev. Hugh Jones, in 1724: “If new England be called a Receptacle of Dissenters, and an Amsterdam of Religion, Pennsylvania the Nursery of Quakers, Maryland the Retirement of Roman Catholicks, North Carolina the Refuge of Runaways, and South Carolina the Delight of Buccaneers and Pyrates, Virginia may be justly esteemed the happy Retreat of true Britons and true Churchmen for the most Part; neither soaring too high nor drooping too low, consequently should merit the greater Esteem and Encouragement.”

    Ending the African slave trade was a subject of the Frist Continental Congress as well as the Constitutional convention. Inhabitants of 1790 were 20% slave and among freemen 99% factional Protestant with 5% able to vote. Today, 100% of non-criminals may vote and less than 15% practice the traditional Protestant factions. A black faction, perhaps 3%, that holds white Protestantism as the oppressor cannot be ignored. Today, nearly 25% of citizens are non-religious, and the next nearest faction is Catholic at near 21%. The non-religious are the largest faction in the USA! They (we) will not yield freedom-from oppression.

    The human being seems too psychologically powerful to negotiate or collaborate about another person’s God or none. In other words, no one enters a public forum to disclose his or her God and consider amendment. If soul is involved in the-objective-truth, no one wants to take responsibility for another person’s soul: Responsibility for one person is enough. Naïve or arrogant people cite their God hoping to appear to have the higher opinion, but the people don’t subjugate to personal opinion. The days of dominant public opinion beyond comprehensive safety and security may be over. There seems no place for “God talk” in collaboration for comprehensive safety and security.

    National independence was accomplished on June 21, 1788. That day, government according to the preamble to the constitution for the USA was made possible: government by willing people. When a super-majority of the people recognize the promise and power of the preamble, there may be a quiet revolution toward comprehensive safety and security according to the-objective-truth—collaboration for civic justice.

    We now celebrate each June 21 as Personal Independence Day. We think it is an appropriate holiday before the 4th of July, because personal independence is required for national independence without tyranny against the people.

    • John Schmeeckle says

      Phil Beaver, you appear to be confused. You speak of “the promise and power of the preamble” to the Constitution but want to dismiss “English-derived ‘common good'”. But “common good” is just another way of saying “general welfare,” which is part of the preamble to the Constitution! Furthermore, you repeat the English-derived phrase “safety and security” in relation to the Constitution. This phrase “safety and security” comes from John Locke, as opposed to the phrase “safety and happiness” (derived from Cicero), which George Washington, James Madison, and a unanimous First U.S. Congress used in relation to the Constitution. I am not writing to opine on the validity of your libertarian vision for improving the political climate in the USA today. What I am saying is that your vision is NOT synonymous with the political theory that motivated the Founders.

      As I have discussed elsewhere, the phrase “safety and happiness” was defined in the May 1776 congressional independence resolution (see http://startingpointsjournal.com/may-resolution-declaration-of-independence/ ). This May resolution was the starting point for the Declaration of Independence AND for the original State constitutions (except for South Carolina’s) AND for the U.S. Constitution (as implied by Chief Justice Marshall in Marbury v. Madison). As I see things, to properly understand the original mindset of the Founders as these documents were drafted, it is necessary to familiarize oneself with the political thought of Cicero and his eighteenth-century followers Francis Hutcheson, Jean-Jacques Burlamaqui, and Emer de Vattel — as opposed to today’s common anachronistic (and arguably Orwellian) projection of a “modern liberal” reading of John Locke onto our nation’s founding documents.

      • says

        Thank you for your comments. I read both of Rogers’ posts, all comments (some needing more attention), and two essays of yours—the academia one and the startingpoints one. Your scholarship seems appreciable.

        I think “God Talk” is a private pursuit with no standing in the discovery of civic justice. “Civic” refers to persons who collaborate for comprehensive safety and security more than for other institutional or ideological causes.
        I promote the preamble as it is. The constitution for the USA neither modifies nor limits the preamble. Neither government nor God limits the preamble. It is an agreement by willing people in their states to collaborate for the goals stated in the preamble. A civic people amend the articles of the constitution as needed to remedy discovered injustice. Their religious institutions flourish.

        Moreover, I paraphrase the preamble with 2017 terms that motivate me to use it without losing the 1787 essence. For example, “more perfect Union” referred to the perpetual commitment by people in 13 states. Now there are people in 50 states (and Puerto Rico wants to be the 51st). But I want a phrase that refers to the people who collaborate for 2017 living. Thus, I use “integrity” rather than “Unity.” It’s only my preference, because I have not yet collaborated with others people. Others might have a better idea. I use “integrity” to mean both understanding and wholeness. ”More perfect integrity,” may not make sense, so I might suggest “promote public integrity.” I want to collaborate with willing people and hope you are willing, because you know so much, have read so much, and care.

        I want better than the past and don’t dismiss “common good.” I have a different idea as to what is the common good (also what is general welfare). The term I prefer is “comprehensive safety and security,” derived in collaboration with my friend Hugh Finklea. John Locke missed “comprehensive,” perhaps asserting his theism defines the common good. Cicero’s “safety and happiness,” isn’t working. In short, we have no particular desire to be synonymous with writers, old or new. However, we work hard to write ideas scholars may understand and improve through collaboration rather than domination and ridicule (Alinsky Rule No. 5).

        The world seems at a nadir of erroneous competition for dominant opinion, especially among the Abrahamic religions. I work to comprehend what the ascent might be. I think the ascent may include ideas that are made possible by American history, derived from its inspiration for independence from England. Otherwise, perhaps ascent could not be emerging in 2017. However, I want to accept and advance America’s potential more than preserve its traditions.

        A couple of considerations might help us collaborate. First, it matters not whether a civic person is Christian, Jew, Muslim, other religious, or non-religious. Every civic person has the best possible beliefs for him or her. This is so whether the person is young or old, well or not. Perhaps the American dream is freedom-from tyranny so that each person may acquire the liberty-to perfect his or her unique person.

        It is important that someone coaches each newborn to imagine perfecting their unique person. Ralph Waldo Emerson gave that message in “Divinity School Address,” 1838, and he refers to a messenger. If the person’s unique quest is promising, their religious beliefs or non-religious beliefs are valid for them, and are of no civic interest. A civic people know there will always be dissenters for reasons the dissenter may or may not comprehend. A civic people’s tools include the preamble, statutory justice, the-objective-truth, and fidelity. Every civic religion flourishes in the privacy of minds, homes, churches, and voluntary associations that either collaborate for or cooperate with discovered, statutory justice.

        I presented quite a bit to talk about and hope you are willing to collaborate. I realize you may oppose comprehensive safety and security, but your collaboration may lead to a better phrase.

        • John Schmeeckle says

          Phil Beaver, your posts contain a number of interesting ideas worthy of discussion. I’ll try to keep this selective response more or less within the parameters of the topic of James Rogers’ article.

          You wrote, ‘I think “God Talk” is a private pursuit with no standing in the discovery of civic justice. “Civic” refers to persons who collaborate for comprehensive safety and security more than for other institutional or ideological causes.’

          That is a common view these days, but it does not fit the prevailing view of the Founders and of the society that they lived in. For example, “God talk” was a prominent part of the Declaration of Independence. As every colonial lawyer at the time knew, the English jurisprudence in which they were trained was grounded on the Law of Nature, which in turn included the theological suppositions of a transcendent, omnipotent, omniscient and benevolent divine being commonly referred to as “God.”

          The Founders understood “unalienable rights” in terms of the moral duties of piety and benevolence. At the time, atheism was considered scandalous, and deism only slightly less so.

          The Founders considered it of utmost importance to promote the development of virtue in the children of the community. In their wisdom, they decided that organized religion, not government, should play a dominant role in doing this, although compulsory prayer in public schools is one example of universally practiced government support of the promotion of virtue.

          Your emphasis on “comprehensive safety and security” would seem to be more restricted than the Constitution’s phrase, “promote the general welfare,” and I’m inclined to wonder why you choose not to use the Constitution’s phrase. What do you think of the following quote citing examples of what the government should do to promote the general welfare?

          “Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people.”

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