James Madison, Property, and Religion
Two Hundred and twenty three years ago, almost to the day, James Madison penned an essay entitled “On Property.” The essay is fairly short, only a couple of pages in length, but ought to be read by anyone who wants to understand what is really at stake in the fight in Indiana and Arkansas over laws intended to protect the religious freedom.
After describing property as traditionally conceived, “a man’s land, or merchandize, or money,” Madison points out that property also includes personal “opinions,” including “religious opinions, and in the profession and practice dictated by them.” In fact, property in this latter sense is so important, Madison writes, that, “If there be a government then which prides itself in 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 . . . such a government is not a pattern for the United States.”
Conservatism is About More Than Taxes
Conservatives are often guilty of having a rather narrow view of property. While they proudly advocate protecting their money from confiscatory taxes, they are much less bold when it comes to the “religious opinions” noted by Madison. Indeed, one way of understanding the reaction of conservative governors Mike Pence and Asa Hutchinson, who backed down when faced with threats to businesses in the state, was that, unlike James Madison, they concluded that “merchandize or money” were more important property than “religious opinions.”
Liberals do not make this mistake. They understand the breadth of Madisonian property while denying its private character. Barack Obama knew he was undermining tradition notions of individual property rights when he said, “you didn’t build that.” It is not that he didn’t recognize property; rather, the problem to him was that property did not, in a sense, “belong” to individuals. It is the same with individual opinions, including religiously grounded opinions. To liberals, religious opinions are fine, if they are sanctioned by (or sanction) the state. In fact, liberals are quite happy to cite religious opinions in the support of redistributive policies. Like public property, public religion – that is religion in service of the state -- is just fine. What must be defeated is any notion of individual religion opinions that might, even in theory, trump state understandings.
Indiana, Arkansas, and the Bigger Battle
This helps to explain, in fact, what would otherwise be irrational behavior on the left in response to the Indiana and Arkansas laws. After all, even from the perspective of the most avid gay rights supporters, the types of laws at issue in the two states pose a very minimal threat. The laws, known under the acronym RFRA after the 1993 federal law titled the Religious Freedom Restoration Act, merely mandate that a traditional legal test known as strict scrutiny be used when the government acts in a way that substantially burdens and individual’s (including those who own businesses and corporations) right to freely exercise their religious beliefs. RFRA does not guarantee that the religious freedom claim will be successful. Moreover, neither of the states in question has law on the books prohibiting discrimination based on sexual orientation. This means, for example, that a bakery in Indiana could legally refuse to cater a wedding involving a same sex couple even without RFRA.
So why are liberals so enraged? It should by now be clear. The very idea of RFRA is dangerous because it acknowledges the importance of individually held religious opinions. In the same way that wealthy people who want to shield some of their earnings from taxes are labeled as immoral, so too are those who want act on private religious judgments. “You didn’t build that” means “you don’t own that,” whether we are talking about businesses or religious beliefs. Notice that liberals, unlike conservatives, are even willing risk their traditional property – money in the form of business profits – in support of this larger project.
Don’t Let Them Steal Your Religion
Back in 1970, in the case of Goldberg v. Kelly, liberals were successful in having the Supreme Court recognize what are sometimes called “new property” rights. In that case, welfare payments were declared to be a form of property protected by the Due Process Clause. Justice Hugo Black, who dissented from the Court’s opinion, wrote, “It somewhat strains credulity to say that the government's promise of charity to an individual is property belonging to that individual.” What Black understood was that the Court had accepted a redefining of individual property away from something that is personally earned, towards that which someone is given by the government. The same thing has happened now in Indiana and Arkansas. When religious opinions are denied recognition, individual property is being taken. The fact that Governors Pence and Hutchinson think that resistance to this is bad for business shows that they would be well served by going back and reading Mr. Madison.