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Is the State Department Wrong on Rights?
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Pictured: U.S. Secretary of State Mike Pompeo
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The report's focus on unalienable rights as understood by the founders—and its tendency to underplay the importance of other rights viewed as just as essential—has provoked backlash, however.
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Many modern observers question if the founders' focus on a limited number of "unalienable rights" ignores the significance of other rights, such as the "right to privacy" and the rights that are said to flow from it, such as LGBTQ rights and reproductive rights. Is the founders' understanding of rights deep and broad enough to protect liberty in this new sense?
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What are "unalienable" rights?
Unalienable rights, as understood by the founding fathers, are those rights which man inherently holds, no matter what form of government (or lack thereof) may exist. These "natural rights" include life, liberty, and property (in Locke's words) or the pursuit of happiness (in Jefferson's). They belong to every human being from birth and all men are created equal in this regard. The most famous mention of these unalienable rights is laid out in the Declaration of Independence:
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...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.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ... Declaration of Independence, 1776
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The founders believed that the foremost purpose of government should be the protection of unalienable rights for its citizens, which meant, primarily, the protection of property rights and religious liberty. They established the Constitution as a system of government organized so as to safeguard these rights.
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Positive rights vs. unalienable rights
Unlike unalienable rights, "positive rights" derive their power solely from the government that has written them into law - that is, "posited" them. These rights might be called "alienable" insofar as they are not held by man at birth, but only exist insofar as a government sets them down in law. These positive rights, established to achieve social or economic ends, may be choice-worthy and good in themselves, but their purposes depend on governmental will rather than appeal to nature or the divine. While the attempt is sometimes made to ground them in notions of "human dignity" or a "fundamental right to privacy," their particular enumeration and their basis remain disputed.
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Recent controversies
Critics of the State Department's Report of the Commission on Unalienable Rights question the report's focus on religious liberty and property rights while neglecting other rights tied to the founders' understanding of the right of liberty.
Others insist that the protection of the founders' unalienable rights is not enough. They see unalienable rights in a much broader sense and believe that positive rights, such as the right to healthcare, reproductive, and LGBTQ rights should be included in these most fundamental of rights.
The primary distinction is that various positive rights, while important, can be given and taken away by a government. And these rights may be good, and in fact necessary, for protecting liberty. But our unalienable rights—fundamental rights every individual should have simply for being a person—must be protected if anything else good can be achieved.
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History can always teach us something about the present, but only if it remains a priority. Without knowledge of our predecessors' struggles, we have no basis to make important decisions about our country's future.
JMC supports those teachers who are championing education in America's history and its founding principles. Our growing network of more than 900 dedicated professors are making a difference on hundreds of campuses across the country. So far, they have taught more than one million students. Will you help us reach more?
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About the Jack Miller Center
The Jack Miller Center is a 501(c)(3) public charity with the mission to reinvigorate education in America's founding principles and history. We work to advance the teaching and study of America's history, its political and economic institutions, and the central principles, ideas and issues arising from the American and Western traditions—all of which continue to animate our national life.
We support professors and educators through programs, resources, fellowships and more to help them teach our nation's students.
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