Madison Wrote That Government Exists to Protect Property of Every Sort

The man who wrote the Fifth Amendment's takings clause did not think property was mainly about land. That is the surprise buried in a short newspaper essay he published on March 29, 1792, and it is a surprise worth savoring, because both sides of the modern argument tend to get him wrong. The left treats property as a rich man's privilege; some on the right treat it as a fence around an acre. Madison thought it was something larger, older and harder to take away.

The essay is called "Property." It appeared in the National Gazette, the newspaper Philip Freneau published, to which Madison contributed a series of unsigned essays, and it runs to only a few pages. Read slowly, it contains a complete theory of limited government. This post reads it beside the chapter on property in Locke's Second Treatise, the Takings Clause that Madison drafted, and Federalist No. 10, and then asks what the essay demands of governments that seize land, regulate it into worthlessness, or tell you what you may say about it.

The setting: a young republic arguing about power

By 1792 the Constitution was three years old and the new government's first great fight was over how much power it had. Alexander Hamilton's financial program, with its national bank and its assumption of state debts, had split the country, and Madison, once Hamilton's partner in writing The Federalist, had gone into opposition. Madison wrote a series of essays for the National Gazette, and "Property" is among the most durable.

You do not need to settle the Madison-Hamilton quarrel to read the essay. It stands on its own because it makes a claim about what government is for. The Declaration of Independence had said that governments are instituted to secure the rights of life, liberty and the pursuit of happiness. Madison said, in his idiom, that this is what protecting property means.

Passage one: two meanings of a single word

Madison opens by separating the narrow sense of the word from the broad one. In the narrow sense, he says, property means that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual. That is the dictionary meaning most people have in mind: a farm, a house, a bank account. Nothing controversial there, which in a Madison essay is the calm before the argument.

Then he widens the lens. In its larger and juster meaning, he writes, property embraces everything to which a man may attach a value and have a right, and which leaves to everyone else the like advantage.

Look at the last clause, because it is easy to skip. A man's property, in the broad sense, is whatever he values and has a right to, on the condition that it leaves every other person the same advantage. That is not a license to hoard, and it is not a collective claim on what others have. It is a statement about equal rights. Property, for Madison, is a right that all may hold in the same way, and it is the protection of that equal right, not any particular distribution of goods, that government is built to secure.

Passage two: the property you carry inside you

The famous middle of the essay goes through examples. In the former sense, Madison says, a man's land, merchandise or money is 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 an equal property in the free use of his faculties and the free choice of the objects on which to employ them.

Then comes the line that gives the whole essay its shape: as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Sit with that sentence. It says your rights are yours the way your farm is yours. Your speech, your faith and your labor are things you own. They are not gifts from the state, handed down with conditions attached, and the state's power over them is therefore the power of a trespasser, not a landlord. This is the idea the Founders had in the air when they wrote the First Amendment's guarantees and the Fifth Amendment's, and it is why Madison would have found it strange that modern constitutional law sorts speech rights into one box and property rights into a lesser one.

Madison also wrote, in the same passage, that conscience is the most sacred of all property, because other property depends in part on positive law, while the exercise of conscience is a natural and unalienable right. That is a ranking, and the ranking is worth noticing. Land is property by the grace of the legal system that records deeds and enforces them; conscience is property by nature. If you think land rights deserve respect, he argues, conscience deserves more. The argument runs upward from the farm to the soul, not downward.

Passage three: the test of a just government

The essay then draws the political conclusion. Government, Madison writes, 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.

That is the thesis in two sentences. A just government is defined by what it protects, and what it protects is everything that belongs to a person, from the title to his land to the use of his mind.

He follows with the test, and here Madison is practical. He lists the ways governments violate this. He says a government is not just, and property is not secure under it, where the property a man has in his personal safety and personal liberty is violated by arbitrary seizures of one class of citizens for the service of the rest. He names taxes laid unequally, and laws that confer exclusive privileges or monopolies, as breaches of the same rule, because they deny to some citizens the free use of their faculties and the free choice of their occupations. A tax or regulation can violate property just as a bulldozer can.

A legislature that wants to tax one trade into the ground should therefore be asked a simple question: which of the three kinds of property are you spending tonight? Most legislators would prefer to be asked about the budget.

Locke in the background

Madison was not inventing this. He was standing on John Locke, whose Second Treatise of Government (1690) is the great source of the labor idea of property. In chapter five, Locke writes that every man has a property in his own person, and that this nobody has any right to but himself. The labor of his body and the work of his hands, Locke adds, are properly his.

Notice the order of Locke's argument. First comes the person, owned by himself. Then comes labor, which is an extension of the person into the world. Then comes land, the product of mixing that labor with what nature offered. Property in things is derived from property in oneself. The farm is a downstream consequence of the farmer.

Madison takes the same chain and runs it backward to a political rule. If property in things is a branch of property in persons, then a government that respects the branch while attacking the root has not understood what it is protecting. A state that guarantees your deed and fines your sermon has misread both. The relationship between the two thinkers is worth a separate look in Locke Said Property Begins the Moment Your Labor Mixes With the Earth, and the link between Madison's essay and conscience is taken up in Madison's 1792 Essay Says Your Conscience Is Your Property Too.

There is one difference, and it is instructive. Locke wrote as a political philosopher in a century of civil war. Madison wrote as a legislator who had just helped design a government, and his interest is in how institutions behave. He cares less about the origin of property than about the habits of majorities, and that brings us to the tenth Federalist.

Federalist 10: the faculties of acquiring property

In November 1787, years before the essay, Madison had written Federalist No. 10, the famous essay on faction. There he made the claim that supplies the background of the 1792 essay. 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. The protection of these faculties, he wrote, is the first object of government.

In the same paper he describes the different and unequal faculties of acquiring property. People differ in talent, in industry, in luck. From those differences come differences in holdings, and from those, differences in interest and opinion. Madison does not wish this away, and he does not treat it as an injustice to be corrected by force. He treats it as the permanent condition of a free society, and he treats the danger of that condition as being that a majority will use the machinery of the state to take from the minority.

That is the problem he spent the Convention solving. His answer in Federalist No. 10 is the large republic, with its many interests, its representation and its structural brakes. His answer in the 1792 essay is a moral test: does this government impartially secure to every man what is his own? Read together, the two essays say that the republic is built to prevent faction, and the essay on property tells you what faction is after.

In 1787 Madison worried that a majority bent on redistribution could trample the rights of owners. In 1792 he widened the point so that the rights being trampled include speech, conscience and occupation. It is a short step from "the state may not seize your field" to "the state may not seize your voice," and Madison takes it in a single essay, which is more efficiency than most modern agencies manage in a single rulemaking.

The Fifth Amendment: the clause he drafted

The essay did not float free of practice. In June 1789, Madison introduced the amendments that became the Bill of Rights, and the property protections were his. The Fifth Amendment, as ratified, contains the clause that most directly translates the 1792 theory into law: nor shall private property be taken for public use, without just compensation.

Three features of that clause match the essay.

1. "Taken." The clause does not wait for a formal transfer of title. A taking is a taking when the government acts. The litigation over what counts, including regulatory takings and physical occupations, is a long story, but the word's plain reach is wide, and Madison's own broad sense of property supports a wide reading.
2. "Public use." The government may take only for a public purpose. The essay's warning against seizing from one class of citizens for the service of the rest is the same constraint. The infamous modern test of that limit is told in The Takings Clause Explained, From Public Use to Just Compensation.
3. "Just compensation." A taking is not forbidden; an uncompensated one is. Madison understood that governments need roads, forts and canals, and that necessity cannot be allowed to turn into confiscation. The price of public need is that the public pays, not the one person whose land happens to be in the way.

Those three words did not cover everything Madison cared about in the essay, and he knew it. The Bill of Rights had other clauses for the other sorts of property: the First for opinions and conscience, the Fourth for security of person and papers, the Fifth for liberty and due process. Taken together they are the essay turned into text.

The strongest objection, answered

A fair critic will say this: if property includes opinions, conscience, labor and rights, then the word has become so broad that it means nothing. If everything is property, property has no edges, and a rule that protects "property of every sort" cannot be applied by a judge.

The objection has force, so give it its due. A concept stretched over everything can lose its grip. Here is why Madison escapes.

One: he did not abolish the narrow sense. He keeps the ordinary meaning of property and adds a larger one beside it. The essay is not a dissolving of land titles into philosophy; it is a claim about the family resemblance among things a person may rightly hold against others.

Two: the test is equality, not enlargement. Property in the broad sense is what a man may value and have a right to while leaving others the like advantage. That condition is a limit built into the definition. A claimed right that takes from someone else is not property in Madison's sense, so the broad definition carries its own boundary.

Three: the Constitution divided the labor. The Founders did not leave every sort of property to a single clause. They wrote separate provisions for speech, religion, search and seizure, and compensation, so that a judge faced with a given complaint has a text to apply. The essay supplies the unifying principle, and the amendments supply the rules.

Four: the alternative is worse. If property means only land, then a government that cannot touch your acre can still silence your church, tax your labor into servitude, and license your occupation. The narrow reading protects the one kind of ownership that most governments have long learned to live with.

What it means for eminent domain and regulation now

Here the essay turns from history into an audit.

For eminent domain, the essay says that a taking for the benefit of private parties, with the public use a thin label, is the "arbitrary seizure of one class of citizens for the service of the rest" in its purest form. The test for a legitimate taking is a real public use and a real payment. A city that clears a neighborhood so a developer can build something with a better tax base has to answer the 1792 essay before it answers the budget office. The practical steps for an owner facing that situation are laid out in When the City Wants Your Home for a Developer, the Steps to Fight Back.

For regulation, the question is not whether government may regulate. Madison never said it may not. The question is whether the burden falls on everyone impartially or is dumped on a few. A rule that forbids a farmer from using the one wet corner of his property, for the supposed benefit of the public at large, asks one family to pay a cost that belongs to everyone. That is what the compensation requirement exists to prevent, and it is why the courts have spent a century drawing the line between a regulation and a taking. How the Court has recently opened its doors to those claims is told in Knick v. Scott Township Reopened the Federal Courthouse to Landowners.

For everything else, the essay is a standing rebuke to the idea that rights come in two grades. If your opinions and your labor are property, then a licensing board that bars you from a trade without a good reason is taking something, and a tax that treats one occupation unequally is taking something. You need not agree that every such case is a constitutional violation to feel the force of the claim. Madison asks only that the burden of proof sit with the government rather than the citizen.

The case in brief

1. In his 1792 essay "Property," Madison defined property in a narrow sense, as dominion over external things, and a larger sense, as everything a man may value and have a right to while leaving others the like advantage.
2. In that larger sense a man has property in his opinions, his religion, his labor and the free choice of his occupation, so that he may be said to have a property in his rights, and conscience is the most sacred property of all.
3. A just government, Madison argued, is one that protects property of every sort and impartially secures to every man whatever is his own; seizures that burden one class for the benefit of the rest mark an unjust one.
4. The Fifth Amendment's takings clause, with Federalist No. 10's defense of the faculties of acquiring property and Locke's labor theory behind both, makes the essay's test usable in court.
5. Applied now, it demands real public use and real payment in eminent domain, impartial burdens in regulation, and skepticism of any rule that treats speech or labor as a lesser sort of ownership.

What you can do: read Madison's essay in full, it takes about ten minutes, and then read the Fifth Amendment in the Constitution with the essay open beside it.