The point of inalienable rights is that they exist independent of the acknowledgement of formal governing bodies. Governing bodies may choose to acknowledge the people they govern have rights, and to orient their actions around their recognition and preservation, but rights are held by the individuals because individuals are born free and independent.
There are no hive minds or oversouls. No man can look at another and know what the other is thinking or feeling. The individual nature of existence renders it impossible to see the world through anything other than personal experience. As Adam Smith so eloquently observed in the opening paragraphs of The Theory of Moral Sentiments, “As we have no immediate experience of what other men feel, we can form no idea of the manner in which they are affected, but by conceiving what we ourselves should feel in the like situation.”
This establishes two important principles as apply to government, particularly those who wish to respect the rights of their citizens.
First, that rights must flow from the nature of individual being. The individual is identifiably distinct and, philosophically speaking, unknowable. The inability to step into the mind of another and understand the unique set of circumstances that make up his mind means no man can govern another. Individual sovereignty rests on nothing more than the independent nature of the mind.
Second, that, in its role as adjudicator, government cannot make determinations about what is in an individual’s best interest. It can manage rights, not interests. The individuals who breath life into the organs of government may empathize with the plight of their constituents, but when they take action that, based on their reckoning and their own moral intuition, is designed to boost another, they are actually undermining the sovereignty of the individual. They are asserting their own perspective and solution to a problem over the individual actually facing this. This accomplishes nothing but to erode the individual’s right to be master of his own affairs.
This, in a nutshell, means one simple thing: any government that claims to prioritize freedom by endeavoring to respect individual liberty must be preternaturally aware of rights. In judicial terms this means an individual who comes forward seeking to have some grievance redress should not have to make some sort of declaration about how his liberty has been harmed. It should be fundamentally understood by those who have sought out the role of arbitrators.
To put it more plainly, the American political system is, in theory, designed to champion individual rights. This means it instinctually recognizes the rights individuals hold absent a petition from a citizen making the case that he should be granted freedom from government coercion or intrusion. Rights are best understood in this context to be the things over which the individual has sole authority. This applies primarily to his person and property. These are, in the classical sense, natural rights, described by Thomas Paine as the things, “in which the power to execute is as perfect in the individual as the right itself.” No one can argue the individual’s natural right to be sole master of his property or himself. Any claim to the contrary is an aberration.
Why is it important to understand this? Because the case against one of the greatest injustices of today — qualified immunity — flips this principle on its head. It requires that the victim of police abuse assert his right and show that it has been violated. That he has rights which actions can violate is not automatically understood.
The perversity of this is articulated particularly well in a case where qualified immunity saved the job of a police officer who kneed on the eye of a restrained suspect some 20 to 30 times.
Charles McManemy was arrested by the Iowa County Sheriff’s Office on suspicion of making a drug delivery. He was restrained by at least four other officers and surrenders. This didn’t stop Deputy Bruce Tierney from repeatedly kneeling on McManemy’s eye, which resulted in lasting damage to his vision. McManemy alleged this was excessive force and sued on the grounds that this violated his Fourth Amendment rights.
McManemy lost. The U.S. Court of Appeals for the Eight Circuit recognized that McNamemy’s rights were indeed violated, but because there was not a “clearly established” right in legal precedent, Tierney was entitled to qualified immunity.
In short: because the Fourth Amendment had not been previously applied to another case wherein an officer repeatedly kneeled on the face of a suspect, Tierney couldn’t possibly have known his actions were in any way inappropriate or violative of McManemy’s rights.
And that position not only defies reason but invalidates the very principles around which the American justice system is supposedly oriented.
If a plaintiff, subjected to police abuse, has to identify another case nearly identical to his own to prove that the violation of his rights has been recognized, he does not inherently possess those rights.
It doesn’t matter if the court pays lip service to the idea that his rights were violated. Substantively, their actions — or rather their refusal to act — deny that right. By failing to recognize and uphold it, they implicitly invalidate it. It exists in theory but not when it actually matters: when actions that transgress that right occur. Philosophically speaking, their failure to proactively assert and protect individual rights makes them as guilty of violating it as their transgressors.
But, actually, the way qualified immunity treats rights is even more perverse than that. Even though, philosophically, the inviolability of rights is utterly destroyed by the jurisprudence, practically, they are protected the second-time a violation occurs. And, presumably, in all subsequent instances.
This creates a very bizarre system of privilege: woe to the individual who first runs across the fury of an undisciplined officer. But luck is on the side of all who follow.
Of course, there’s a catch-22 operative here: how does someone seeking redress of grievance find the precedent that will ensure his rights are recognized and protected if the first person who found himself in a similar situation did not receive protection because he could find no precedent?
It’s pretty clear that qualified immunity renders the inviolability of rights moot. The term ‘inalienable’ speaks not only to the idea that no action can rightfully take something away from its owner but also connotes a sense of universal understanding. The term “inalienable rights” refers not only to the way in which rights are held by individuals but the simple fact that their sanctity is universally recognized.
Qualified immunity does not give rights that treatment. By refusing to recognize the inherent right of the individual against transgressions by another, it makes them entirely alienable and entirely violable.