Parsing Pennsylvania and Vermont constitutions, 1776 and 1777.

[jody]

I use PA and VT constitutions often in DU discussions because they predate our Articles of Confederation, Constitution, and Bill of Rights. They both use the same language in the paragraphs I cite except PA uses “inalienable rights” and VT uses “unalienable rights”, a difference that also happened with the Declaration of Independence.

"That all men are born equally free and independent, and have certain natural, inherent and (inalienable or unalienable) rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."
And
"That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power."

IMO the authors of the PA/VT constitutions chose their words very carefully because they knew most people were illiterate and important documents would be read too large audiences in the town square.

IMO the adjectives “natural”, “inherent”, and “inalienable” were carefully chosen because they precisely define the terms of a social contract into which a group of sovereign entities called citizens freely entered into and we now study as constitutions.

In the 17th and 18th century, philosophers debated the source of individual rights and among the alternatives was the “divine right of kings or popes” versus “nature”.

Given colonial distaste for the monarchy far away in England, PA/VT citizens told England to bug out because in America, rights came from “nature” and not some divinely anointed king/pope in Europe.

On another dimension and recognizing that governments once appointed grow like a terminal illness, PA/VT citizens said natural rights were also “inalienable”. That means citizens can never give away an inalienable right nor can government legitimately take away an inalienable right. SCOTUS has since said that for very special situations, government as representatives of We the People, may restrict a right but SCOTUS has never said government could ban a right. A classic example is limiting the yelling of fire in a theater.

The adjective “inherent” means every human has that right, period, end of discussion, no need to argue about race, gender, or other classification scheme.

The result is a very well crafted statement “"That all men are born equally free and independent, and have certain natural, inherent, inalienable rights”.

Add to that statement, certain enumerated rights by saying “amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety" and I believe you have a rock solid foundation for the natural, inalienable right of self-defense.

PA/VT then went one step further and separated defense of self from defense of state even though at the time most citizens would use the same tools for self-defense and defense of state. The two states said "That the people have a right to bear arms for the defence of themselves and the state”.

Move forward from 1776/1777 to 1787 when the Constitution was adopted and we find provisions for the militia and defense of state covered in Clauses 15 and 16, Section 8, Article I of our Constitution.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Move forward again to 1791 when the Bill of Rights was ratified and we find the Second Amendment that has provoked so much debate about whether it’s for a militia under collective rights or for individual rights.

If the Second Amendment was only about the militia, it would not be needed because the Constitution gives congress 100% of the authority and power needed for a militia made up of all the citizens with exceptions.

Lost in the current discussion of the Second Amendment is the original purpose that PA/VT stated so clearly in their declarations, “That all men are born equally free and independent, and have certain natural, inherent and inalienable rights” and "That the people have a right to bear arms for the defence of themselves and the state”.

The right to bear arms for self-defense can never be given away by PA/VT citizens therefore they retained that right when they entered into the social contract we honor as our Constitution.

If the Second Amendment does not obligate government to protect that right as an enumerated right, then the Ninth Amendment obligates government to protect it because PA/VT declared the right to bear arms for self-defense is a “natural, inherent, inalienable” right.

Comments please.

[Traveling_Home]

1. Inalienable and unalienable are not the same. Enjoyed the writeup - Thanks eom

[jody]

3. FindLaw Dictionary defines unalienable and inalienable as the same.

inalienable
: incapable of being alienated, surrendered, or transferred
Example: inalienable rights

unalienable
: not alienable: "inalienable"

[Traveling_Home]

4. Here's my take...

from schooling too long ago to be admitted...

and not disagreeing with your legal dictionary of this Time, in the Time of the Founding fathers, the argument of Creator endowed unalienable rights was concept that did not enjoy the favor of Jefferson. He did not use it in his original draft nor in his later French Constitution.

Jefferson's original draft of the Declaration, "We hold these truths to be sacred and undeniable; that all mean are created equal and independent, that from that equal creation they derive rights inherent and inalienable, among which are the preservation of life, liberty and the pursuit of happiness."

After input from the declaration Committeee including Adams and Franklin, "The word "inalienable" was changed to "unalienable" and read "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."

An "unalienable" right cannot be transferred. You cannot transfer your life to someone else — or your liberty or happiness. An "inalienable" right, such as ownership of property or a title or a degree, can be transferred and governments can decide who owns property or has a title.

[jody]

5. Nonetheless PA used "inalienable" and VT used "unalienable" as adjectives in identical sentences.

Both PA and VT meant the right in question could not be given away by a citizen and government did not have the authority to take away that right.

Of course we know governments do have the power to take away a natural right but that's not authority.

It's up to We the People to make certain government does not illegally use its power to take away natural, inalienable/unalienable rights.

[Traveling_Home]

6. and their selection of words was deliberate and thoughtful ;-) n/t

[jody]

7. Deliberate and thoughtful but disagreement prevailed. I read of the controversy over the two words

years ago and after your comment browsed a dozen links that purported to tell the true story. The controversy still prevails.

My point is very simple that PA and VT both declared the right of "enjoying and defending life and liberty" to be a "natural, inherent" right and PA or VT or both declared that citizens could not give that right away by using either the word "inalienable", PA, or the word "unalienable", VT, or both to declare that condition.

You said "An 'unalienable' right cannot be transferred. You cannot transfer your life to someone else — or your liberty or happiness. An 'inalienable' right, such as ownership of property or a title or a degree, can be transferred and governments can decide who owns property or has a title."

Accepting your definition that only "unalienable" means a right cannot be transferred, then Vermont's constitution proves my case that the right of "enjoying and defending life and liberty" cannot be transferred.

On the other hand if both PA and VT used the two words "inalienable" and "unalienable" to mean a right cannot be transferred, then both state constitutions prove my case that the right of "enjoying and defending life and liberty" cannot be transferred.

Either way, the right of "enjoying and defending life and liberty" cannot be transferred from a citizen and that fact was declared before the Articles of Confederation, Constitution, or Bill of Rights were adopted.

ON EDIT ADD
Our exchange raises an interesting question, if as you say the word "inalienable" used in the Declaration of Independence does not mean natural rights cannot be given away, then what is the basis for the belief that rights enumerated in the Bill of Rights cannot be given away?

[jody]

9. Thanks for making me relook at “inalienable” vs “unalienable”. Thanks also to FindLaw with its

database of SCOTUS decisions and a search engine that allows anyone to look for decisions with the word “inalienable” beginning with the earliest decisions.

Below are in chronological sequence from the beginning, quotations from SCOTUS decisions using “inalienable” relative to rights. I’m neither a lawyer nor constitutional scholar but IMO the citations below use “inalienable” to mean a right that cannot be transferred, the definition you believe was reserved for “unaliebable”.

THE AMISTAD, 40 U.S. 518 (1841)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/40/518.html

It is to be remembered, that the government of the United States is based on the principles promulgated in the Declaration of Independence, by the congress of 1776; 'that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness; and that to secure these rights, governments are instituted.'

LUTHER v. BORDEN, 48 U.S. 1 (1849)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/48/1.html

The institution of American liberty is based upon the principles, that the people are capable of self-government, and have an inalienable right at all times, and in any manner they please, to establish and alter or change the constitution or particular form under which that government shall be effected. This is especially true of the several States composing the Union, subject only to a limitation provided by the United States Constitution, that the State governments shall be republican.

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/60/393.html

New York, by its Constitution of 1820, required colored persons to have some qualifications as prerequisites for voting, which white persons need not possess. And New Jersey, by its present Constitution, restricts the right to vote to white male citizens. But these changes can have no other effect upon the present inquiry, except to show, that before they were made, no such restrictions existed; and colored in common with white persons, were not only citizens of those States, but entitled to the elective franchise on the same qualifications as white persons, as they now are in New Hampshire and Massachusetts. I shall not enter into an examination of the existing opinions of that period respecting the African race, nor into any discussion concerning the meaning of those who asserted, in the Declaration of Independence, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. My own opinion is, that a calm comparison of these assertions of universal abstract truths, and of their own individual opinions and acts, would not leave <60 U.S. 393, 575> these men under any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a necessary regard to circumstances, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the Declaration of Independence asserts. But this is not the place of vindicate their memory. As I conceive, we should deal here, not with such disputes, if there can be a dispute concerning this subject, but with those substantial facts evinced by the written Constitutions of States, and by the notorious practice under them. And they show, in a manner which no argument can obscure, that in some of the original thirteen States, free colored persons, before and at the time of the formation of the Constitution, were citizens of those States.

CUMMINGS v. STATE OF MISSOURI, 71 U.S. 277 (1866)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/71/277.html

The theory upon which our political institutions rest is, that all men have certain inalienable rights-that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection <71 U.S. 277, 322> of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.

EX PARTE GARLAND, 71 U.S. 333 (1866)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/71/333.html

The right to practise law in the courts as a profession, is a privilege granted by the law, under such limitations or conditions in each state or government as the law-making power may prescribe. It is a privilege, and not an absolute right. The distinction may be illustrated by the difference between the right of a party to a suit in court to defend his own cause, and the right of another to appear and defend for him. The one, like the right to life, liberty, and the pursuit of happiness, is inalienable. The other is the privilege conferred by law on a person who complies with the prescribed conditions.

Below are some of the earliest SCOTUS decisions using "unalienable".

VANHORNE'S LESSEE v. DORRANCE, 2 U.S. 304 (1795)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/2/304.html

In the second article of the Declaration of Rights, which was made part of the late Constitution of Pennsylvania, it is declared: 'That all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding; and that no man ought or of right can be compelled, to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent; nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments, or peculiar mode of religious worship; and that no authority can, or ought to be, vested in, or assumed, by any power whatever, that shall, in any case, interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.' (Dec. of Rights, Art. 2.)

* * * * * * * * * * * *

From these passages it is evident; that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man.

* * * * * * * * * * * *

The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the constitution.

BUTLER v. COM. OF PENNSYLVANIA, 51 U.S. 402 (1850)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/51/402.html

3d. All commissions (regardless of their form, or by whom issued) contain, impliedly, the constitutional reservation, that the people at any time have the right, through their representatives, to alter, reform, or abolish the office, as they may alter, if they choose, the whole form of government. In our magna charta it is proclaimed (2d section of the Bill of Rights, under the 9th Article of the Constitution of Pennsylvania), that 'all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of these ends they have at all times an unalienable and indefeasible right to alter, reform, or abolish their government, in such manner as they may think proper.' It has been well said, by one of the ablest judges of the age, that 'a constitution is not to receive a technical construction, like a common law instrument or a statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them.' Per Gibson, C. J., in Commonwealth v. Clark, 7 Watts & S. (Pa.), 133.

[SteveM]

8. Webster's New Collegiate Dict, 2nd Ed.: "inalienable" -- "Incapable of being...

alienable, surrendered, or transferred." This dictionary does not list "unalienable." I think this portion of the debate overly parses the term. I can see Jefferson's reticence to use "Creator endowed unalienable rights," but even with a god-granted right, the right remains inalienable -- even by a god.

[jmg257]

2. A very nice read, Jody. Cheers! This summarizes some of you points too..

The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc.

Yates Brutus #2