What an “Inalienable Natural Right” Originally Meant (Updated)Andrew Hyman

In Kansas, the first section of the state constitution’s bill of rights says this:

 

1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

 

In a widely-reported April 26 opinion, the Kansas Supreme Court asked:  “Is this declaration of rights more than an idealized aspiration?”  The court answered “yes.”  And then the court went on to say that abortion is part of “liberty” and so the state legislature is subject to strict scrutiny under this clause (Justice Stegall wrote a dissent).

 

Some other state constitutions have similar clauses, and of course there is similar language in the Declaration of Independence.  An interpretation of this clause like the Kansas Supreme Court gave this week could supercharge the ability of state courts to undo almost any state law that they strongly disagree with.  So, it seems worthwhile to figure out if that would really be legitimate based upon original meaning.

 

This clause of the state constitution was adopted in 1859 during a convention in Wyandotte, Kansas.  According to the full transcript of the debates at that convention, it does appear that they meant for this clause to be more than an idealized aspiration, but that raised a problem for them: if liberty, or the control of a man’s person, is a right that cannot be alienated, then how could the state ever put anyone in jail for committing a crime?  One delegate said it would become impossible to “make a man amenable to any criminal law,” another complained that such a clause would “open all your jails,” and yet another asked how it would be possible to carry a defendant into court “without violating this clause.”  Then Samuel Kingman (later Chief Justice of the Kansas Supreme Court) rose to defend a revised and final version of the clause, and his defense was not even close to the modern doctrine of fundamental substantive rights.  On the contrary, the argument by Kingman that won the day was this:

 

I hold that this use of the word "inalienable," is misunderstood and misinterpreted in this House.  A man's right to his life is inalienable in law under all circumstances. He has no right to sell or give it away — no right to dispose of it at all. But the word "inalienable" has a fixed meaning in law. And when in the common use of the word we say, that a man cannot alienate his property, none would suppose we mean to say, he cannot forfeit his property.

 

Even today, one sense of the word “alienation” is “The voluntary and complete transfer from one person to another.”  And so, according to Kingman (putting aside the clause’s equality requirement), the clause in question does not limit what the state can do to a person but rather limits what a person can legally do to himself.  What I find remarkable is that the Kansas Supreme Court mentioned and quoted Kingman well over a dozen times in its opinion this month, and yet never even alluded to the part where Kingman said the meaning of the word “inalienable” had been misunderstood.  So perhaps the court’s opinion contained elements of originalism, but not nearly enough.  If it had, the court likely would have found that this clause affirms legislative power to stop people from killing themselves, from enslaving themselves, or from taking other actions which disable them from pursuing happiness.

 

UPDATE FROM ANDREW (April 28, 2019): At page 63 of the Kansas Supreme Court's opinion, the court did repeat part of the Kingman quote that is blockquoted above, in particular the fourth and fifth sentences. The court then cites John Locke and Randy Barnett regarding natural rights that the state should defend, but does so as if the word "inalienable" were not present in the clause at issue, and as if the rest of the Kansas bill of rights does not protect many natural rights regardless of whether they are inalienable.