Inalienable Rights Could Never Have Been Transferred to Government in a Social Contract, So No Government Can Properly Claim Jurisdiction Over Them

Let us now consider Jefferson's mention of “unalienable rights.” Unalienable (or “inalienable”) rights stood in contrast to alienable rights, so we might wonder why Jefferson found it necessary to refer to this rather technical distinction, especially in a political document that was intended for popular consumption. Why didn't Jefferson simply speak of “rights” in general, instead of focusing on inalienable rights?

Inalienable rights were regarded as fundamental corollaries of a person's essential nature, especially his or her reason and volition, so these rights could never be surrendered or transferred to another person (including a government), even with the agent's consent. People can no more transfer their inalienable rights than they can transfer their moral agency, their 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. Consequently, any government that systematically violates inalienable rights is necessarily tyrannical and vulnerable to revolution. As Francis Hutcheson put it, “Unalienable Rights are essential Limitations to all Governments.”

According to this theory, legitimate disagreements may occur between subjects and rulers when alienable rights are involved, but no such disputes are possible between people of good will when inalienable rights are involved. No government can claim jurisdiction over inalienable rights, because they are incapable of alienation and so could never have been delegated or surrendered to a government in the first place. This means there can be no excuse for the systematic violation of inalienable rights. This is the 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.

This is 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 clearly justified.

--George H. Smith, The System of Liberty: Themes in the History of Classical Liberalism (New York: Cambridge University Press, 2013), e-book.