Thursday, April 20, 2017

Madison On Property

A common modern criticism of the Founding Fathers is the claim that their priority in establishing the new nation was the protection of accumulated material wealth, aka "property" above all.  The early 20th century historian Charles Beard was the first to make the allegation and it's becoming an increasingly favored trope of Progressives and Marxist historians.

In reality, the definition of "property" was much broader in the late 18th century.  Property refers not just to land, equipment or money in a bank.  It is the ownership we have in our mental existence and in the right to try to better ourselves. The best example of what was actually meant by the term was set forth by James Madison in a short essay published in the National Gazette on March 29, 1792 which you can read in full here.

Madison informs his readers that the term has both a particular application to "external things of the world" as well as a "larger and juster meaning" which:
. . . embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the same advantage.
Included in this larger meaning Madison references:
. . . a property in his opinions and the free communication of them.

. . . a property of particular value in his religious opinions

. . . equal property in the free use of his faculties and free choice of the objects on which to employ them

. . . a property in his rights
Madison goes on to say, "Conscience is the most sacred of property".

The role of government is to protect property of every sort.  A just government "impartially secures to every man, whatever is his own."  In contrast, an unjust government denies to "its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called."

Madison's thought is echoed several times in the speeches of Abraham Lincoln, where he uses the term "liberty" instead of "property" in support of the right to free exercise of labor and ambition.

The more restrictive meaning of the term "property" that arose in the 20th century was not an accident. By doing so it allowed Progressive thinkers and Marxist demagogue to impugn the ideas of the Founding and to set the stage for the artificial distinction between economic rights and personal liberty pioneered by the Supreme Court in the 1930s, in which rights in the former were severely restricted.

Ironically, as noted by Walter Dellinger (Solicitor General during the Clinton Administration) in The Indivisibility of Economic Rights and Personal Liberty, "the New Deal Court's elimination of any effective protection of economic rights seriously weakened the bases for protecting personal liberty as well", noting that the shaky rationale of Justice Douglas' "inept opinion" in the contraceptive ban case of Griswold v Connecticut was made necessary by the evisceration of economic rights.  As Dellinger points out, it was the justices accused by the New Dealers of being reactionaries in the 1930s, who in the prior decade wrote the decisions in Pierce v Society of Sisters and Meyers v Nebraska overturning state statutes which discriminated on ethnic and religious grounds, relying on theories of economic liberties. 

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