Madison on Property, 1792

James Madison on Property, 1792.

This work by James Madison is quite often overlooked in discussions on religious freedom. Seemingly based upon the Fifth Amendment, James Madison relates the word “property” to the rights of religious freedom. Following his definition of property, he explains that a man has a right to his property and property in his rights; that a man’s property extends to his opinions and the free communication of those opinions. One such example is a man’s religious opinions, and the manner in which he professes and practices those opinions. Under the Fifth Amendment, the property right that a man has in his religious opinions should not be deprived without due process of law. Any government, according to Madison, that prides itself in protecting a man’s property, yet directly violates the property rights which individuals have in their opinions on matters such as religion, is not a government that should serve as a pattern for the United States. To receive and deserve the praise of other governments and peoples of the world, the United States must equally respect the rights of property and the property in rights.

Lewis Roca Rothgerber Christie Religious Institutions Group

This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. . . .

In the latter sense, a man has property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. . . .

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. . . .

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

According to this standard of merit, the praise of affording a just security to property, should be sparingly bestowed on a government which, however scrupulously guarding the possessions of individuals, does not protect them in the enjoyment and communication of their opinions, in which they have an equal, and in the estimation of some, a more valuable property.

More sparingly should this praise be allowed to a government, where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy. Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and inalienable right. To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection for which the public faith is pledged by the very nature and original conditions of the social pact. . . .

If there be a government then which prides itself on maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the inference will have been anticipated, that such a government is not a pattern for the United States.

If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.

James Madison on Property (1792), in 6 Writings of James Madison, at 101-3 (Hunt ed.).