Madison's 1792 Essay Says Your Conscience Is Your Property Too

Americans are told, from early on, to sort their liberties into two bins. In one bin sit the "economic" freedoms: property, contract, the right to start a business and keep what you earn. In the other sit the "personal" freedoms: speech, conscience, worship. The bins have different friends. One bin is said to belong to bankers, the other to poets. A great deal of modern politics consists of treating the contents of one bin as sacred and the contents of the other as an inconvenience.

James Madison, who knew more about the subject than anyone then living, would have found this sorting baffling. In one short newspaper essay, written in the spring of 1792, he threw both bins into the same barrel and said they were one thing. A man's farm and a man's faith are both his property. His opinions are his property. His labor is his property. And a government that guards the first and tramples the others has not protected property at all. I want to read that essay slowly, passage by passage, because it is the cleanest statement we have of why economic liberty and religious liberty stand or fall together.

The setting

By early 1792 Madison was a Representative from Virginia, the principal author of the Bill of Rights, ratified in December 1791, and increasingly alarmed by the financial program of Alexander Hamilton. Hamilton's plans, funding the national debt, assuming state debts, chartering the Bank of the United States, were creating a class of wealthy investors with a direct stake in the government's favor. Madison and Thomas Jefferson were assembling the opposition that would become the Republican party.

One of their instruments was a newspaper. The National Gazette, edited by the poet Philip Freneau in Philadelphia, began publishing in October 1791. Madison contributed a series of essays to it over the following year, signed or unsigned, on subjects such as public opinion, parties and the republican form of government. His essay "On Property" appeared in the issue of March 29, 1792.

It is short, a few paragraphs, and it is mostly overlooked. The task here is to put it back where it belongs.

First passage: two meanings of one word

Madison begins by distinguishing two senses of the word property, and the whole argument rests on the distinction. The first sense is the narrow one:

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."

That is property as most of us use the word: land, goods, money. It is the sense in which the Fifth Amendment speaks of private property taken for public use. Now the broader meaning:

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.

Look at the clause at the end: "which leaves to every one else the like advantage." That is a test of a legitimate property claim. It is not a right that one man holds at the expense of the next, but one that everyone can hold at once. A man's claim to his own opinions takes nothing from his neighbor's claim to his. That is why such things are property in the just sense: they are rights that coexist.

Second passage: the catalogue

Madison then makes the move that gives the essay its power. He lists what, in the larger sense, a man holds as his own:

In the former sense, a man's land, or merchandize, or money is called his property. In the latter sense, a man has a 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. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

Count the items. Opinions. The free communication of opinions: that is speech and the press. Religious opinions, and "the profession and practice dictated by them": not merely believing, but acting on belief, which is the free exercise of religion. The safety and liberty of one's person: that is protection against arbitrary arrest and violence. And the free use of one's faculties and free choice of occupation: that is the right to work at what one chooses and to dispose of one's own labor.

There is the whole of the First Amendment, a good part of the Fourth through Sixth, and the economic liberty that the Fifth protects, all under a single heading. Then comes the summary sentence, the one I would put on the wall of every law school:

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.

Say it again. A man has a right to his property, and he has a property in his rights. The two phrases are mirror images. Rights are owned; ownership is a right. There is no bin.

Third passage: what government is for

Madison next turns from the individual to the state, and states the purpose of government in a way that sounds uncannily like Locke:

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.

"Of every sort." The just government is the one that impartially secures to every man whatever is his own. Both words matter. The government must secure all kinds of property, not just the material sort, and it must do so impartially, without favoring one class of owners against another.

In the rest of the essay Madison applies the test. A government that boasts of protecting property, he says in substance, while allowing the rights of conscience or the freedom of the person to be violated has failed its own standard. And a government that violates the narrow sense of property, through unequal taxes that burden one kind of property and subsidize another, or through arbitrary seizure, has failed too. This was a pointed remark in 1792, when he was fighting Hamilton's favors to the holders of public securities.

Then comes the sentence that gives this post its title. In the same essay he writes of conscience:

Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that being a natural and unalienable right.

Think about what that says. Land and goods depend, in part, on the law: a deed, a recording office, a court that will enforce a title. Conscience depends on none of those. It is older than any government and cannot be recorded or taken. It is therefore the most sacred property, and an attack on it is an attack on the foundation of all the rest. This is the idea of unalienable rights, expressed in the vocabulary of property; see Unalienable Means You Cannot Even Give Your Rights Away, and Here Is Why.

Connecting the dots: Memorial and Remonstrance

The 1792 essay did not come from nowhere. It is the mature statement of arguments Madison had made in 1785, in the Memorial and Remonstrance Against Religious Assessments, the petition he wrote against a Virginia bill that would have levied a tax for the support of teachers of the Christian religion.

In the Memorial, Madison argued that religion is "the duty which we owe to our Creator" and that it must be left to "the conviction and conscience of every man." He told the Virginia legislature that the same authority that could establish Christianity in exclusion of other religions could establish a particular sect in exclusion of others, and that "the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever." Property and conscience are here on the same ledger: a tax for religion is a seizure of both.

The legislators took the petition seriously. The assessment bill died. In January 1786 Virginia enacted Jefferson's Statute for Establishing Religious Freedom, which Madison had helped steer through the House of Delegates. The 1792 essay generalizes the lesson: it is not just taxes for churches. Every infringement on faith, speech or livelihood is an invasion of property in the broad sense. For how this idea shaped the First Amendment's own drafting, see The conscience clause Madison wrote for the Bill of Rights and lost.

Connecting the dots: Federalist 10

Go back further, to November 1787, when Madison wrote Federalist 10 on factions. In it he traced the roots of property rights to something deeper than the possession of things. "The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests." And then: "The protection of these faculties is the first object of government."

Faculties. The same word that appears in the 1792 essay in "the free use of his faculties." Property, for Madison, begins in the capacities each person is born with, the powers of mind and body and the right to put them to work. The thing you own on the first day is yourself. Everything else, land, wages, savings, comes from the use of those powers. That is Locke's view as well; see Locke Said Property Begins the Moment Your Labor Mixes With the Earth.

Federalist 10 also names the greatest danger to this system: faction, a group "united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens." The cure was the large republic, with its multiplicity of interests and sects. In Federalist 51 he applied the same logic to religion: "In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects." Again, civil rights and religious rights, one structure.

What it meant then

Put this in its place in 1792. The Constitution was three years old. The Bill of Rights was less than four months old. Hamilton's critics said, with some justice, that his program protected the property of creditors and speculators while neglecting everyone else's. Madison's reply was to enlarge the concept: property is not just the portfolio. It is the whole person, and a government that protects the portfolio and forgets the person is partial and unjust.

The essay also set Madison's version of republicanism apart from two rival creeds of the day. Against those who thought property was the only thing government should protect, he said there were many kinds. Against those who thought property was an obstacle to equality, he said that property, rightly understood, was the guarantee of every person's independence. His "property in his rights" was a defense of both the rich man's deed and the poor man's conscience, on the same footing.

What it means now

The essay is a gift to anyone trying to defend liberty against its sorters. Consider how often we are told that economic liberty is a special-interest cause, the cause of the rich, while "real" liberties are of a different, nobler kind. Madison's answer is that the freedom to choose your work, to keep your wages, and to run a business is the freedom of "faculties," and it has a claim to the same protection as your freedom of speech.

And consider how often the reverse is said: that conscience and religious practice are private tastes, which the state may regulate in the course of administering the economy. Madison's answer is that conscience is the most sacred property of all, and the state that regulates it has no claim to be a protector of property in any sense. A baker, a florist, a doctor or a school that is told to violate its conscience to operate is not being asked to give up a hobby. It is being asked to alienate its property in its own opinions.

For the economic side of the same argument, see Property Rights Are Human Rights Because People Hold Property, Not Things. For a parallel treatment of the same 1792 text by another route, see Madison Wrote That Government Exists to Protect Property of Every Sort.

The strongest objection, answered

A critic will say: Madison's definition stretches the word "property" until it means everything and so nothing. If every right is property, the word does no work. And treating liberty as property invites the very commodification, treating freedoms like things to be bought and sold, that the previous argument rejected.

Three points reply.

1. Madison did not erase the distinction between the two senses of the word. He kept it, and said that the narrow sense is a part of the larger one. A man's land can be bought and sold; his conscience cannot. The essay is precisely about the difference.
2. The point of the broad definition is to give every right the protections that the law was already willing to give land. In 1792 no one doubted that a man could not be deprived of his farm without due process and just compensation. Madison asked why a man's religion should receive less.
3. The language of property is the language of the owner's control. To say conscience is property is to say that it belongs to the person, and not to the state or the church or the majority, which is exactly the claim at stake.

The verdict: the stretching is the argument, and it holds.

The case in brief

1. Madison's March 29, 1792 essay in the National Gazette defines property in two senses: external things, and everything a man may value and have a right to, including opinions, religion, person and faculties.
2. Its summary line, that a man has a property in his rights as he has a right to his property, merges economic and personal liberty into one principle.
3. A just government, he writes, impartially secures to every man whatever is his own, and conscience is "the most sacred of all property."
4. The essay completes arguments from the 1785 Memorial and Remonstrance and Federalist 10, where the protection of men's faculties is "the first object of government."
5. For us it means that economic liberty and religious liberty are not rivals, and that a defense of one that ignores the other is half a defense.

What you can do: read the First and Fifth Amendments on the site's Constitution page, and then read the whole 1792 essay, which takes about five minutes, before the next time anyone tells you that some freedoms are real and others are mere commerce.