Fundamental Rights Should be Inalienable Rights (Part I)

In previous writings “One Important Test for Fundamental Rights” and “Should Fundamental Rights be Polar Opposites” I illustrate historical analysis, guidelines, and interpretations for Fundamental Rights. In this text, I will hypothesize that Fundamental Rights should only include inalienable rights. What exactly is an inalienable right? The Declaration of Independence refers to unalienable rights as “Life, Liberty, and the Pursuit of Happiness.” Inalienable and unalienable mean the same thing (inalienable is more of a modern term): “incapable of being alienated, surrendered or transferred”. In other words, an inalienable right is “a right that cannot be extinguished or transferred even by the consent of the right-holder.” In general terms according to Randy Barnett: “Rights to possess, use, and control resources external to one’s person are generally alienable rights” whereas “Rights to possess, use and control one’s person are inalienable rights.” Contracts between alienable and inalienable rights can be distinguished as “to give” or “to do” respectively. Personally, I believe an inalienable right should include control over any resource or possession of property that is solely owned.

As the saying goes “first comes rights, and then comes government”. This is exactly what the Declaration of Independence says “All men are created equal with certain unalienable rights” and it is the duty of government to “secure these rights”. Those unalienable rights are as explained by John Locke to have the freedom to do whatever you want with what is yours. People should not have rights to what liberals like to call Hobbesian freedom and that is to do whatever you want (that is okay up to a point when a person violates the rights of others). In other words, you can only control what is yours and you cannot control other people or what they own. This principle is called “individual sovereignty”. There are three sovereignties shared in the Constitution: the federal government, State governments, and “we the people”. Unfortunately, individual sovereignty is ignored at the expense of government, but we always forget that “rights come first, and then comes government”: meaning individual sovereignty should take priority over government sovereignty. Any need to regulate any Fundamental or Inalienable right must be justified as necessary to protect the Fundamental rights of other citizens. Instead, the government believes they have whatever power necessary to achieve an end result and they often neglect the harmful means they will use to accomplish that task. A good government will find the least regulatory or restrictive means to accomplish an ends.

Under this definition of a Fundamental Right, these rights can only pertain to one’s self and they should only be rights that are universal or practiced by all or occur naturally within one’s life. Within the Constitution a few of these Fundamental Rights are outlined in the First Amendment: Freedom of Speech and Religion. And we know the Supreme Court has elevated at least a dozen of other Fundamental Rights not mentioned in the Constitution. For example, we have the Fundamental Right to marry: (Meyer v. Nebraska, 1923 [traditional marriage]; Loving v. Virginia, 1967 [interracial marriage]; and Obergefell v. Hodges, 2015 [gay marriage]). We have the Fundamental Right to procreate: (Oklahoma v. Skinner, 1942). And we have the Fundamental Right to sodomy: (Lawrence v. Texas, 2003). Under my definition, these would not qualify as Fundamental Rights for the following reasons: 1. These are not universal rights wanted by all for example, being single, divorced, childless, and sex could just as easily be considered Fundamental Rights; and 2. These rights are not fundamental because they require more than one’s self to accomplish the task. This does not preclude the Court from finding these cases constitutional, they just cannot do so by elevating them as Fundamental Rights. Likewise, abortion (Roe v. Wade, 1973) and contraception (Eisenstaedt v. Baird, 1972) would not be Fundamental Rights. Rights conflict when the Court creates an inflation of Fundamental Rights. The Conservative Court elevates “moralistic” rights and the Liberal Court elevates “social justice” rights which tend to conflict. This is exactly what is happening in Roe (abortion) and Eisenstaedt (contraception) when compared to Skinner (procreation). Abortion and Contraception rights stem from the Fundamental Right “right to privacy” (Griswold v. Connecticut, 1965). If abortion is a Fundamental Right, then too can be the Fundamental Right to have cosmetic surgery. Sure, people have the right to make these decisions, but they are not Fundamental Rights universally accepted and or practiced by all. Besides, contraception is not a self-made decision, nor is abortion for that matter (doctors, family, and counselors). Even if abortion and contraception were individual decisions, the Constitution is not gender specific. The Supreme Court made horrific discriminatory decisions against blacks and women in the past but that is not a reason to support social justice to discriminate against another group of people. Two wrongs do not make a right.