Around Independence Day, we often reflect on these words: “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.”
But what does that one unusual word mean—unalienable?
No, it has nothing to do with Martians. This is a very specific and purposeful word that the Founders used in the Declaration of Independence given their historical and legal context.
To appreciate the full meaning of that phrase, let’s do a little history lesson.
Property in the English Common Law
At the time of the American founding, our country was under the English common law. This legal system stretched back hundreds of years. Some of the most groundbreaking legal concepts in human history came through the common law, leading up to the Declaration of Independence and its iconic sentiment of certain rights being unalienable.
One of the most enduring aspects of the common law system is how it handled property rights. Because England was an aristocratic society for many centuries, a great deal of its property law seems quite foreign to us today.
The common law developed different levels of ownership rights. Many of these levels of ownership are still around today. The highest level of ownership was fee simple absolute, where the person who held the property had a complete right to use and dispose of it.
Another type of property interest was the life estate. With this interest, the person holding the life estate could use the property for his or her life. But the property would revert back to the original grantor or to a third party after that person died.
A third common type of property interest was the fee tail. You may be familiar with this concept if you’ve watched Downtown Abbey. In the hit PBS show, the family had to find a male heir to take over the estate because of the “entail.”
Why couldn’t Lord Grantham simply name any successor he wanted? Well, I’m glad you asked.
Restraints on Alienation
The term alienation is a fancy way of saying “transfer.” And the transfer can be almost any type: sale, gift, inheritance, etc. A fee tail property interest contains a restraint on alienation, limiting to whom could be transferred.
The grant of property in fee tail would often be “to [Name] and the heirs of his body,” or something similar. This particular wording meant that the property could only be passed down to the owner’s natural children. Illegitimate children largely did not have inheritance rights, though.
So, the fee tail acted as a restraint on alienation, meaning that the property could only go to certain qualifying people. Aristocratic families often used this type of property interest to preserve their estates for as long as possible.
Sometimes, there would be significant restraints on alienation. Property might even be considered unalienable in some situations. The English courts frequently upheld these restraints, with fairly few limitations (such as the infamous Rule Against Perpetuities).
What it boils down to is that restraints on alienation put limitations on the right to give property away. The objective was to keep property for certain uses or within certain families.
Now let’s consider how this history ties into the American idea of unalienable rights.
How Certain Rights Being Unalienable Affects Us Today
In modern times, state legislatures have abolished many restraints on alienation, including the fee tail. Property owners have a far greater freedom of disposition now than in centuries past.
But the legal landscape during the American Founding directly influenced the content of the Declaration of Independence. When it comes to fundamental rights, the sentiment of the Declaration still lives on.
The intent of that document was to express something historically unprecedented. The rights of life, liberty, and the pursuit of happiness are things that cannot be taken from us. But it also meant much more than that.
In the Founders’ view, unalienable rights are intrinsic aspects of our being that we cannot give away. These are inherent to who we are as human beings and are not just whatever a government decides its citizens deserve.
The purpose of having legal protections for individual rights is so that prevailing social passions and trends do not threaten those rights. By enshrining individual rights into constitutions, these topics are not up for debate anymore.
Freedom of speech, freedom of the press, freedom of religion, the right to bear arms, protection against deprivations of life, liberty, or property without due process of law, etc.—these are just some of the legal rights that Americans hold as we carry out life, liberty, and the pursuit of happiness.
The ratification of the Bill of Rights puts a label on these unalienable rights saying, “Do not touch.” The development of such a legal system, considering most of human history, is nothing short of incredible.
Final Thoughts on Our Unalienable Rights
As we celebrate Independence Day, remember that rights also come with responsibilities. As U.S. citizens and residents, we ought to use our unalienable rights to serve our communities and build others up. I take the view that we should be cultivators instead of consumers when it comes to how we live.
We should vigorously defend these unalienable rights, and repulse attacks against the invaluable legal protections that uphold them. By defending those fundamental rights, we will find our nation’s long-term well-being, even if it’s difficult to see it today.
As an attorney, I am incredibly honored to have taken an oath to uphold the Constitutions of the United States and of the State of Tennessee. These documents are a part of what make our society a beacon of hope to the rest of the world, even with our faults, as we strive for a more perfect union.
Thanks for reading!
