Corey Robin's Marxist ideology has led him to create a false narrative about Justice Thomas’s jurisprudence.
Americans know the Declaration affirms life, liberty, and happiness’s pursuit as inalienable rights. John Locke and others affirmed (some) rights as inalienable as well. Robert Nozick, in contrast, argued the right to liberty entailed people have the right to sell themselves into slavery.
The distinction wasn’t merely a theoretical point—it also had practical implications at the time of the founding.
When asked about the significance of a right being inalienable, most Americans initially respond it’s significant because it means those rights can’t be taken away by the government. While the answer is formally correct, it is irrelevant: An alienable right can’t be taken away either.
The bite of something being inalienable is not that it can’t be taken away, but that it can’t be given away. “Inalienability” is a restriction on the person who possesses the thing, it does not implicate the justness of someone taking the thing.
This is easy to see.
Let’s start with alienability. That something is alienable only means it can be transferred. That is, it can be sold or given away. My ownership rights over my house are alienable. I can sell or give it away. I can even alienate select parts of my rights. In renting my house, I alienate my right of occupation to another person.
That a right is alienable, however, does not entail it can justly be taken or stolen. If I make chairs, for example, my right over those chairs is entirely alienable: I can sell them or give them away. But if someone breaks into my factory and steals my chairs, the fact that my ownership rights over those chairs is alienable makes no difference to the fact a theft occurred.
What about inalienability? Americans have less direct experience with inalienable property, but the national obsession with all things Jane Austen means we’re more familiar with the concept than we might think.
The inalienability of the fathers’ estates provides the dramatic backdrop in Pride and Prejudice and in Sense and Sensibility. Primogeniture—estates being entailed to the first born child, usually along the male line—meant ownership of the estates were inalienable. While Mr. Bennett could use the estate during his lifetime, he could not transfer any right to the estate beyond his life. Hence his wife’s and daughters’ concern about their future if and when he died. This is the pickle Mrs. Dashwood and the girls find themselves in after Mr. Dashwood’s death.
So much for property law. What’s the practical relevance of inalienability for political rights?
If liberty (and life and happiness’s pursuit) is an alienable right, then despotic government can arise justly. Even as a possibility, in order to object to a government’s action as a violation of the right to liberty, one would need to trace the history of transactions between the people and the political leadership before one can identify a government’s action as a right’s violation.
Whether a government’s actions are actually rights violations would depend on the empirical, historical path of what the people consented to in the past, and on what rights they voluntarily alienated. Because of this empirical component, a government’s action could be a right’s violation in one political society yet not a violation in another political society that had alienated the right earlier.
If the right to liberty is inalienable, however, the history of transactions between the people and their leaders are irrelevant. Even if a people purported to surrender their right to liberty in the past, because the right to liberty is inalienable, their purported consent could not in fact transfer it. If liberty is an inalienable right, then anytime one sees liberty’s violation, one can conclude immediately it is unjust; the people never had the power to alienate their liberty in the first place.
One might ask, why is this of practical relevance, for who would ever willingly transfer their liberty right in the first place?
The best political examples are literary or historical. But even in modern American society, courts are careful with remedies in personal service contracts. While courts will forbid someone to work for another employer in breach of a personal service contract, they will not require performance of the originally-promised work as it would be too close to a form of legal servitude.
More generally, there are well-known examples in the Western canon in which liberty is alienable. In the Bible, Joseph effectively reduces the Egyptians to slaves in a series of transactions in Genesis (41.53-57 and 47.13-26). So, too, liberty was partly alienable in the Mosaic law, even for Hebrews. While Hebrews could be initially sold to another Hebrew for a maximum of seven years (Dt 15.12), nonetheless they could consensually commit to permanent servitude (Ex 21.5-6, Dt 15.16-17). Interestingly, while Hebrews could alienate their liberty, they could not alienate their lives or bodies (Ex 21.20, 26-27). And prohibition of returning fugitive slaves would set practical limits on treatment of slaves as well (Dt 23.15).
Or one might think of exchanges such as Mancur Olson sketches in his classic article on roving versus stationary bandits. A community seeks protection from the predation of roving bandits by ceding their rights to “stationary bandits.” Akira Kurosawa’s film, Seven Samurai, suggests a cinematic portrayal of this possibility—at least if a community were to engage less honorable samurai than portrayed in the film.
From these we can imagine the possibility of despotic governments arising consensually. Asserting the inalienability of the right to liberty answers this possibility: If the right to liberty is alienable, then whether despotic rule is just or unjust depends on the actual, historical set of agreements between the people and their ruler. But if the right to liberty is inalienable, then we know despotism is perforce unjust, irrespective of how it arose.
Asserting life, liberty, and happiness’s pursuit as inalienable rights, the Declaration preempted claims that earlier exchanges between crown and colonies may have consensually perfected policies to which the colonists objected. Being inalienable, the colonists could not concede those rights.