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'Unalienable' vs. 'inalienable,' a salient distinction

By Arragon Perrone
On November 3, 2010

The ambiguous nature of current political discourse reveals the need to precisely define specific words in our nation's founding documents, the Declaration of Independence and the Constitution. In particular, the documents' terms "inalienable" and "unalienable" rights are commonly used interchangeably, even though they are actually two distinct types of rights. The lack of differentiation between the two has sparked arguments about the federal government's role in protecting or giving new rights. Before we can have a civil discussion about the proper role of government, Americans must agree on what the difference between these two terms means for democracy. If we do not, we suffer the consequences of relying on hazy definitions that change with every individual.

Unalienable rights are inherent to human nature. Only nature can give them, and no person or government can take them away. These are the kinds of rights referred to in the Declaration of Independence: "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." These lines establish that unalienable rights are given to humanity by the Creator and no government is justified in taking away these rights.

Since our country's founding, the recognition of unalienable rights has protected Americans and freed the oppressed. They are what led abolitionists to oppose the inhumanity of slavery. Decades later, a greater respect for unalienable rights brought better wages and safer working environments to industrial workers. In the 21st century, unalienable rights united democratic nations in opposing the tyrannical atrocities of Nazi Germany and the Soviet Union.

Whereas governments cannot give or take away unalienable rights, governments are able to regulate inalienable rights. Inalienable rights are established by the government and taken away by the consent of the governed. These rights can be traded whenever the government and the governed agree they can. Inalienable rights are referred to in the Ninth Amendment, which states that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," and in the Tenth: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

But the government can take away the enumerated rights outlined in the Bill of Rights – but if and only if Americans agree. This has happened throughout American history, often with negative reactions from citizens. During the Civil War, Abraham Lincoln suspended the writ of habeas corpus because the Constitution – signed by representatives of the people – gave him that power. After Sept. 11, 2001, Congress overwhelmingly passed the Patriot Act, which eliminated some inalienable rights for the sake of national security.

It is irrelevant to consider if the government should have made those decisions, since they did so legally and in accordance with our representative government. Instead, the significance of the government's actions lies in its ability to alter constitutional rights. Those rights could be taken away because they were inalienable.

The Supreme Court first mentions inalienable rights in their 1837 ruling in The Proprietors of the Charles River Bridge, Plaintiffs in Error v. the Proprietors of the Warren Bridge, and others (36 U.S. 420). The court decided that the federal government has the power to "employ the attention of government to promote the public welfare, and the interests of trade," a power which, in turn, "is as much inherent and inalienable, as the rights of taxation; which, it is said, resides in the government, and needs not be reserved expressly, in any grant of property or franchises, to individuals or corporations." In other words, the federal government has certain powers, such as taxation, that are not granted to businesses or individuals.

When people argue that the government is taking away their rights, they must differentiate between unalienable and inalienable rights. For instance, the government is perfectly justified in taxing its citizens (inalienable); but it has no right to enslave its population (unalienable).

Not every right can be termed "unalienable," but this is poorly understood, if at all, by Americans or the media. The Unalienable Project is a good source of online information regarding this issue. Its website includes links to documents, articles and additional websites that provide useful information to the non-politically savvy citizen. Some references are commentary, but others deal with primary material, such as the "Archiving Early America" website or The Federalist Papers.

In a time when the Tea Party says that the government wants to take away rights and the president announces that all people have a right to universal health care, knowing the difference between unalienable and inalienable rights becomes all the more important. If the American people want to protect their rights from the government, they need to understand just what their rights are and how they can be taken away.


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