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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.
RJ&L
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.).
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