Smith continues his series on the Declaration of Independence by looking to the intellectual history behind its famous reference to unalienable rights.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

On June 7, 1776, the Virginian Richard Henry Lee introduced the following resolution on the floor of the Second Continental Congress:

That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

After considering this resolution twice (June 8 and 10), Congress postponed further consideration until July 1. Although the resolution was certain to pass, unanimous ratification by the colonies was wanted, and for various reasons this was not possible until some glitches had been worked out.

Lee’s resolution for American Independence passed on July 2 (not July 4). This prompted an excited John Adams to write to his wife, Abigail:

The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.

On June 11, Congress appointed a Committee of Five to draft a declaration: Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert R. Livingston.

Events become somewhat murky after this point because Jefferson and Adams provided different accounts in later years. An eighty‐​eight‐​year‐​old Adams claimed that he and Jefferson were appointed as a subcommittee to prepare a draft, after which Adams persuaded Jefferson to write the document.

An eighty‐​year‐​old Jefferson disputed this account. He denied that a subcommittee had ever been formed, claiming instead that the entire committee “unanimously pressed on myself alone to undertake the draught.”

A more serious discrepancy between the accounts of Adams and Jefferson pertains to how the Declaration was actually drafted. In his Autobiography (1805), Adams recalled that the Committee of Five held several meetings, during which an outline of the Declaration was drawn up to serve as a guide for the draftsman.

Jefferson gave no indication of such an outline, suggesting instead that he had written the Declaration from scratch. It was only after he had completed the “original Rough draught” that Jefferson submitted the document to Adams and Franklin separately, soliciting changes that he later described as “two or three short and verbal alterations.” But, Jefferson continued, “even this is laying more stress on mere composition than it merits, for that alone was mine.”

The Rough Draft to which Jefferson refers is one of the most fascinating documents in American history. In 1945, Julian P. Boyd (The Declaration of Independence: The Evolution of the Text, p. 26), said of it:

There can scarcely be any question but that the Rough Draft is the most extraordinarily interesting document in American history…. For it embodies in its text and in its multiplicity of corrections, additions, and deletions all, or almost all, of the Declaration as it was at every stage of its journey from its origin in the parlor of Graff’s home to its emergence in full glory as the official charter as the authenticated charter of liberty of the American people.

For those who wish to understand the political philosophy of the Declaration, the significant part is the famous second paragraph. The first part of the second paragraph, as painstakingly reconstructed by Carl Becker in 1922 (The Declaration of Independence: A Study in the History of Political Ideas), originally read:

We hold these truths to be sacred & undeniable; that all men are created equal & independant, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness; that to secure these ends, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government shall become destructive of these ends, it is the right of the people to alter or to abolish it, & to institute new government, laying it’s foundation on such principles & organizing it’s powers in such form, as to them shall seem most likely to effect their safety and happiness.

We have here a brilliantly concise statement of what historians call “Real” (or “Radical”) Whig ideology, a libertarian political philosophy commonly associated with John Locke. But before I delve into this philosophy I want to comment on a point of historical trivia.

The Declaration we know today refers to “unalienable” rights, but Jefferson used the word “inalienable.” Jefferson did not make this change, nor does the change appear to have been made by Congress while it was considering the draft submitted by the Committee of Five.

So who made this change, and why? We don’t know. “Unalienable” first appears in John Dunlap’s initial printing of the Declaration (July 5), which was inserted in the rough Journal of Congress. It also appears in the corrected Journal and in the engrossed parchment version, which was signed by delegates on August 2. (Contrary to the later recollections of Jefferson and Adams, no signing occurred on July 4).

Carl Becker suggested that John Adams may have been responsible for the change: “Adams was one of the committee which supervised the printing of the text adopted by Congress, and it may have been at his suggestion that the change was made in printing.” Julian P. Boyd (editor of the massive Princeton edition of The Papers of Thomas Jefferson) proposed a different theory: “This alteration may possibly have been made by the printer [John Dunlap] rather than at the suggestion of Congress.”

Fortunately for my purpose here, this minor mystery is of no consequence. Both “inalienable” and “unalienable” were used throughout the eighteenth century; they were merely variant spellings of the same word. (“Unalienable” appears to have been more common.) Far more significant is why Jefferson felt the need to specify inalienable rights at all, rather than referring simply to natural rights, inherent rights, and so forth.

Inalienable (or unalienable) rights were regarded as fundamental corollaries of man’s nature, especially his reason and volition, so these rights could never be surrendered or transferred to another person (including a government), even with the agent’s consent. A man can no more transfer his inalienable rights than he can transfer his moral agency, his ability to reason, and so forth. This means that inalienable rights could never have been transferred to government in a social contract, so no government can properly claim jurisdiction over them.

This argument from inalienable rights was important because of an ambiguity in traditional social contract theory. The social contract was more of a theoretical construct than a historical reality, so disagreements inevitably raged over which rights had been delegated to government and which rights had not. After all, no legitimate complaint can be made about the violation of a right if a government has gained proper jurisdiction over that right in the social contract. Government, for instance, cannot function without money, so the transfer of a minimal amount of property to government, collected in the form of taxes, was commonly seen as the prime example of a right that has been alienated in a social contract.

According to this approach, legitimate disagreements may occur between subjects and rulers when alienable rights are involved, but no such disputes are justified over the question of inalienable rights. Government cannot claim any jurisdiction over such rights, because inalienable rights, by their very nature, could never have been transferred to government in the first place. Therefore, there can be no excuse for the violation of inalienable rights. This is the crucial bright‐​line test that enables us to distinguish the incidental or well‐​intentioned violation of rights, which even just governments may occasionally commit, from the deliberate and inexcusable violations of a tyrannical government.

We thus see why Jefferson focused on inalienable rights in his effort to fasten the charge of tyranny on the British government. The violation of inalienable rights was a defining characteristic of a tyrannical government, and only against such a government is revolution justified.

Although this basic argument can be found in John Locke’s Second Treatise of Government, Locke never actually used the word “inalienable” (or “unalienable”) in regard to rights. We do find this terminology, however, in an early book by the Scottish (and Lockean) philosopher Francis Hutcheson.

In An Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), Hutcheson discusses an “important Difference of Rights, according as they are Alienable or Unalienable.” In order for a right to be alienable, it must “be possible for us in Fact to transfer our Right.” Some rights, such as “the Right of private judgment,” cannot be transferred because they flow directly from our nature as moral agents, and we cannot transfer our faculties of volition and judgment to other people, as we might transfer a piece of external property. In “the same way,” Hutcheson continues, “a direct Right over our Lives or Limbs, is not alienable to any Person; so that he might at Pleasure put us to death, or maim us.”

Hutcheson clearly states the political implications when inalienable rights are violated by government:

[A]ll human Power, or Authority, must consist of a Right transferr’d to any Person or Council, to dispose of the alienable rights of others; and that consequently, there can be no Government so absolute, as to have even an external Right to do or command everything. For wherever any Invasion is made upon unalienable Rights, there must arise either a perfect, or external Right of Resistance…. Unalienable Rights are essential Limitations in all Governments.

As indicated by Hutcheson’s mention of “perfect” and “external” rights, the doctrine of inalienable rights presupposed a rather elaborate theory of natural rights. Space does not permit a discussion of that theory here. (I will discuss it in detail later in a separate essay on natural rights.) Suffice it to say that the distinction between alienable and inalienable rights had become commonplace by the time Jefferson wrote the Declaration in 1776. It is found in the standard works on natural law familiar to eighteenth‐​century Americans, such as that written by Jean‐​Jacques Burlamaqui, The Principles of Natural and Politic Law (1747, 1751).

Among American writers, the distinction between alienable and inalienable rights was frequently invoked by defenders of religious freedom. Perhaps the best example of this was published in 1744 by the dissenting minister Elisha Williams: The Essential Rights and Liberties of Protestants: A seasonable Plea for The Liberty of Conscience, and The Right of private Judgment, in Matters of Religion, Without any Controul from human Authority.

After designating freedom of conscience as an “unalienable right,” Williams explains:

This I say, I take to be an original right of the humane nature, and so far from being given up by the individuals of a community [in a social contract] that it cannot be given up by them if they should be so weak as to offer it…. Whence it follows, the rights of conscience are sacred and equal in all, and strictly speaking unalienable…. A man may alienate some branches of his property and give up his right in them to others; but he cannot transfer the rights of conscience, unless he could destroy his rational and moral powers, or substitute some other to be judged for him at the tribunal of God.

Although the appeal to inalienable rights first arose in the context of religious freedom, it was quickly extended to spheres other than religion, as we find in Jefferson’s appeal to the inalienable rights of “life, liberty and the pursuit of happiness.” As I explained in my first Lib​er​tar​i​an​ism​.org essay, this was one of the most significant developments in the history of libertarian thought.