Unalienable Means You Cannot Even Give Your Rights Away, and Here Is Why

Here is a trivia question with a trick in it. In the most famous sentence in American history, which word is spelled oddly? Not "Creator." Not "happiness." The odd one is unalienable, which looks like a typo, sounds like a legal term your lawyer would mutter, and appears in no ordinary conversation. Most of us read straight over it as a decorative adjective, the way you skip the Latin on a dollar bill.

That is a mistake, and an expensive one. The word is the hinge of the sentence. It was chosen with care by men who knew precisely what it meant in the law of their day, and it makes a claim much stronger than "we have rights." It says there are rights you cannot give up even if you want to. Not for a price, not for a favor, not at the point of a gun, and not by a vote of your neighbors. Let me explain what that means, why it was believed, and why it is the best defense we have against the most polite kind of tyranny.

What the word meant

To alienate something, in the legal language of the eighteenth century, means to transfer it to another person: to sell it, give it, or sign it over. Property is alienable. You can sell your farm. You can give your watch to your son. A right that is alienable is one you can transfer.

An unalienable right is one that cannot be transferred, whether the holder is willing or not. It is not that nobody may take it from you by force, though that is true too. It is that you yourself cannot hand it over, because it was never yours to dispose of in that way.

That sounds strange at first. We usually think of a right as something we own, and what you own, you may give away. But think about the ordinary cases. You may agree to work for another man for a year. You may not, in any legitimate legal system, agree to be his property for life. A contract that purports to make you a slave is not a hard bargain; it is void. The right to your own person is not the sort of thing a contract can reach.

Where the idea came from

The distinction was not Jefferson's invention. It came out of the natural-law tradition the Founders had read.

John Locke, in the Second Treatise of Government (1689), argued that a man cannot, by his own consent, give another man absolute arbitrary power over his life. Since he does not have such power over himself, he cannot hand it to someone else. Locke reasoned that a man "not having the power of his own life" cannot "by compact, or his own consent, enslave himself to any one." You cannot give what you do not have. See Consent of the Governed Was a Precise Idea in Locke, Not a Slogan for how consent works in his theory.

Francis Hutcheson, the Scottish philosopher of Glasgow, drew the distinction between alienable and unalienable rights explicitly. In his posthumous System of Moral Philosophy (1755), he held that property is naturally alienable but that some rights, among them life, liberty and the right of private judgment in matters of religion and conscience, cannot rightly be transferred. A man's faculty of judgment cannot in fact be handed over to another, he argued, and so the right to exercise it is not his to sign away.

The American state declarations of rights picked up the language. The Virginia Declaration of Rights, drafted by George Mason and adopted on June 12, 1776, said that all men have "certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity." The Massachusetts Declaration of Rights of 1780, written chiefly by John Adams, said that all men are born free and equal and have "certain natural, essential, and unalienable rights."

That is the vocabulary in which Jefferson was writing.

A word about spelling

The spelling has its own small story. In Jefferson's rough draft of the Declaration, the phrase appears as "inherent & inalienable rights." The final text approved by Congress, and the first printed copies made by John Dunlap in Philadelphia, which bear the date July 4, read "unalienable." Nobody can say for sure who changed it, and nobody has to. In the eighteenth century "inalienable" and "unalienable" were interchangeable, and both forms were used in the period. The meaning is the same either way, and the engrossed copy of the Declaration at the National Archives uses the form we know.

The text that carries the weight

Here is the sentence, so we can read it as it is written:

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.

Three things deserve notice. First, the rights are endowed by their Creator. They are not conferred by the government or by a contract. They come with the person. Second, they are called unalienable, so they are not subject to transfer. Third, the next clause says that governments are instituted "to secure these rights," so government is the servant of rights that exist before it.

Now read the phrase "unalienable" with Locke and Hutcheson in your ear. It excludes a long list of arrangements that look like consent and are not: the contract by which a man signs himself into bondage, the pledge of his conscience to a master, the "agreement" by which a population surrenders every liberty to a ruler. All of those are void, because the holder never had the power to make them.

Why conscience is the clearest case

The strongest example is the oldest: freedom of conscience. Can you, by contract, bind yourself to believe something? Can a government, with your consent, assign you a creed?

James Madison gave the American answer in his Memorial and Remonstrance Against Religious Assessments of 1785, written to oppose a Virginia bill to tax citizens for the support of Christian teachers. He wrote that the right of every man to exercise religion according to his convictions is "in its nature an unalienable right," and he gave two reasons. First, "because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men." You cannot believe a thing simply because you were told to, because belief follows what you actually find convincing. Second, "because what is here a right towards men, is a duty towards the Creator."

Notice the structure of that second reason. A right against other men is, from the standpoint of the believer, a duty to God. And a duty to God is not an asset you own and may sell. If you contracted to give up the practice of your faith, the contract would purport to dispose of something that was never yours to dispose of. See Madison's 1792 Essay Says Your Conscience Is Your Property Too and The conscience clause Madison wrote for the Bill of Rights and lost for how Madison carried the idea forward.

The consequence for majorities

Here is where an old word becomes a living constraint, and it is the part most Americans have never been told.

A right that is merely granted by the majority can be withdrawn by the majority. A right that is unalienable cannot be touched by anyone, the majority included, because nobody ever had the power to give it away in the first place. That is why the Bill of Rights is written the way it is. "Congress shall make no law..." is not a rule about how much a legislature may do by simple majority; it removes certain subjects from the legislature's reach altogether.

The Supreme Court put the principle in memorable language in West Virginia State Board of Education v. Barnette (1943), where it held that schoolchildren could not be compelled to salute the flag. Justice Robert Jackson wrote that the very purpose of a Bill of Rights was "to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." And, he continued, a person'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." That is the doctrine of unalienable rights in the language of a Supreme Court opinion. See two schoolgirls, a flag salute and the 1943 ruling that protected conscience.

The principle is also the reason that democratic government and constitutional government are not the same thing. A democracy without limits is a majority with a license. A republic under a constitution says that some things are not on the ballot.

The strongest objection, answered

Now to be fair to the other side. The best objection says: this is an elegant idea, but we alienate rights all the time. We waive the right to a jury and plead guilty. We sign confidentiality agreements. We sign away a measure of privacy to get a mortgage. Employees agree to give up some freedom of movement for a paycheck. If no right could ever be waived, society could not function. And if some rights are unalienable and some not, who draws the line?

It is a good objection, and the answer has four parts.

1. Some rights are waivable, and the law has always said so. The distinction is between rights that protect a particular interest and may be set aside by their holder, such as the right to a jury trial, which a defendant may waive, and the deepest rights of the person, which cannot be. The line is not arbitrary. It tracks whether the right concerns the thing that makes the person a person: his body, his conscience, his freedom as a moral agent.
2. A waiver must be voluntary and informed, and some arrangements cannot be made voluntary at all. A contract to serve a master for life is void not because it was unfair but because its object, the surrender of a person's very agency, is outside what a contract can do. John Stuart Mill, no friend of the natural-rights tradition, agreed in On Liberty (1859): the principle of liberty cannot require that a man be free not to be free, and a contract to sell oneself into slavery is void for that reason.
3. The Thirteenth Amendment, ratified in 1865, writes the point into the Constitution. It bars slavery and involuntary servitude, except as punishment for crime, and it does not say "unless the person agrees." Even consent cannot cure it.
4. The test is not whether people have in fact given up rights, but whether the arrangement may be enforced. Many people have signed away their conscience in some private way. The question is whether the law will lend its power to hold them to it. The answer for the deepest rights is no.

The verdict: the objection shows that the idea needs care at the edges. It does not show the idea is empty. The core, that a person's life, body and conscience are not tradable goods, is as stable as any principle in the law.

Why it matters now

The modern version of the problem is rarely a contract for slavery. It is a quieter bargain: surrender a little privacy for convenience, a little speech for access, a little autonomy for a promise of safety. Each trade looks like consent. The unalienable-rights tradition asks a hard question of every such trade: is this the sort of thing that a person may legitimately give away, and may a government, or a corporation acting with its blessing, build a system that depends on his having done so?

You do not need to settle every case to see the principle. A free people is a people that holds certain things as beyond sale. When they forget it, they start paying for liberty in installments. For a companion argument on where such rights come from in the first place, see Rights Are Not Social Constructs, and Here Is the Answer to That Claim, and for the Declaration's whole theory of government, The Declaration's Second Paragraph Is a Complete Theory of Government.

The case in brief

1. To alienate a right is to transfer it; an unalienable right cannot be transferred, even by its holder, because it was never his to dispose of.
2. The idea came from Locke and Hutcheson, entered the Virginia and Massachusetts declarations of rights, and reached the Declaration of Independence in 1776 as "unalienable."
3. Conscience is the clearest case: Madison argued in 1785 that belief cannot follow the dictates of others and that a right toward men is a duty toward the Creator.
4. Because these rights were never granted by majorities, majorities cannot remove them, which is the doctrine behind the Bill of Rights and Justice Jackson's language in Barnette.
5. Some rights are waivable, but the deepest ones, to one's own person and conscience, cannot be bargained away by anyone.

What you can do: the next time you are asked to accept terms of service, a waiver or an agreement that signs away something personal, read it, and ask yourself whether it is the kind of thing that should be for sale; then read the Thirteenth Amendment on the site's Constitution page.