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Abstract
In 1792, James Madison wrote that a man's ‘property of peculiar value [is] in his religious opinions, and in the profession and practice dictated by them’.Footnote1 In view of the ensuing 200 years, the phrase is telling in ways Madison would not have anticipated. For it is in relation to land and private property that the constitutional concept of religion—a concept designed in significant part by Madison himself—arose and is now in decline. This article traces the origins, development and decline of religion as a constitutional concept in relation to land and private property. The experience of Native Americans is a particularly important illustration of this history, because it is in response to them that the constitutional relations of land and religion have been debated in most detail. I begin therefore with the unsuccessful efforts of Native Americans in 1988 to claim Free Exercise protection for lands they regard as sacred. The second section briefly explores the joint origins of private land ownership and the modern Western concept of religion, which in turn impacted the European treatment of the land and religions of conquered and colonised peoples. Moving into the American constitutional period, the third section sketches the inter-related notions of land and religion that appeared in key framers, which again had profound implications for indigenous peoples. Arriving at the present day, the fourth section outlines the deterioration of the constitutional concept of religion, along with the democratic public sphere itself, in the age of privatisation. The final section, using the Faith-Based Initiatives movement as an illustration, argues that new and supposedly public roles for religion actually advance and protect privatisation. In conclusion, I will review and assess very briefly the prospects for religion as a constitutional construct.
Notes
1. James Madison in the National Gazette (27 March 1792). Quoted in Hall (Citation1998, 135).
2. Lyng v. Northwest Indian Cemetery Protection Association, 485 U.S. 439 (1988).
3. Bowen v. Roy, 476 U.S. 693 (1986) at 696.
4. Employment Division of Oregon v. Smith, 494 U.S. 872 (1990).
5. 374 U.S. 398 (1963).
6. See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
7. City of Boerne v. Flores, 521 U.S. 507 (1997).
8. This point was also central to Justice Scalia's argument for the majority in Oregon v. Smith.
9. U.S. v. Winans, 198 U.S.371 [1905] at 380–381.
10. See Burton (Citation2002, 221–227). The treaty approach has succeeded in some US. cases as well; for example, the Alaska Native Claims Settlement Act of 1970. And it is the most appropriate framework because it treats the relationship between Native Americans and the federal government as unique, but without reducing the relationship to that of ward and guardian. It has had significant success in other countries as well, notably Canada and Australia.
11. Cherokee Nation v. Georgia 30 U.S. (5 Pet.) 1 (1830).
12. Cherokee Nation v. Georgia 30 U.S. (5 Pet.) 1 (1830), 105–113.
13. John Locke, ‘Of Property’, Ch. V, S 34, 357 and S31, 356. Quoted in Michaelson (Citation1995, 54).
14. The Act of Toleration firmly established the Church of England, granted civil rights to Protestant dissenters, and laid legal disadvantages upon atheists, Roman Catholics and Jews. See Curry (Citation1986, 79).
15. The Free Exercise clause was incorporated to the states in Cantwell v. Connecticut, 310 U.S. 296 (1940); and the Establishment clause in Everson v. Board of Education, 330 U.S. 1 (1947).
16. See Mazur (Citation1999, 106). Incorporation was finalised in 1978 by the Supreme Court decision Oliphant v. Suquamish Indian tribes, in which the Court declared that Indian tribes occupy reservations only with the assent and under the authority of the United States.
17. For example, Judge Beezer of the Ninth Circuit Court in Northwest Indian Cemetery Protective Association v. Peterson, 795 F.2d 688, 691 (1986). Cited in Brown (Citation1999, 147).
18. Except through his impact on Baptist Isaac Backus. See Hall (Citation1998, 116–117).
19. For example, according to John Noonan, Madison's initial election to the House of Representatives, from which position he shaped the religion clauses, was decisively affected by an alliance with Baptists. See Noonan (Citation1998).
20. Everson v. Board of Education, 330 U.S. 1 (1947).
21. Roger Williams, ‘Key to the Language of America’ (Vol. 1, 180), ‘The Bloudy Tenet Yet More Bloudy’ (Vol. 4, 461–462), and ‘Mr Cotton's Letter Lately Printed, Examined and Answered’ (Vol 1, 324–325) in The Complete Writings of Roger Williams, Russell and Russell, 1963, 7 Volumes.
22. United States v. Ballard, 322 U.S. 78 (1944).
23. For a fuller discussion of the problem of defining religion and their implications for the academic study of religion, see Sands (Citation2002).
24. As Eric Michael Mazur puts it: ‘… for the better part of the nineteenth century, the federal government and the various churches worked in cooperation for the ‘elevation of the Indians’. In fact by providing institutional and financial support, the government was able to make such missionary work more appealing to groups that might otherwise have preferred more attractive assignments oversees. Both the government and the missionary societies were able to benefit from the arrangement; the government secured political as well as military advantage by supporting the missionaries, and the missionary societies gained at least an imagined stake in the welfare of the nation’ (Mazur Citation1999, 103).
25. The prohibition of tribal religions began with the violent suppression of the Ghost Dance religion in the 1890s and continued throughout the Dawes era. See Inouye (Citation1999, 10–13) and Loesch (Citation1999, 33–36).
26. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104–193), Section 104.
27. Indeed, so central was the restoration of patriarchal order that where PRWORA offered incentives to states for reducing illegitimacy, there is nothing to exclude from this category children born to financially independent mothers. Evidently the law was aimed not only at ‘welfare mothers’, but at the ‘Murphy Brown’ types who had so distressed Dan Quayle. For a fuller discussion, see Sands (Citation2000 especially 73–83).
28. This vestige of church–state separation applies to funds from government contracts. However, when funds for social provision take the form of vouchers that needy individuals can take to social service providers, the restrictions do not apply. In that case, faith-based organisations may use voucher funds for any organisational purpose, including explicitly religious purposes.
29. Agostini v. Felton, 96 U.S. 552 (1997); Bowen v. Kendrick, 487 U.S. 589 (1988); Mitchell v. Helms, 98 U.S. 1648 (2000); Zelman v. Simmons–Harris, 00 U.S. 1751 (2002).
30. U.S. v. Seeger (380 U.S. 163) 1965; Welsh v. U.S. (398 U.S. 333) 1970.
31. A logic of the ‘hybrid situation’, first explicated by Justice Scalia in Oregon v. Smith (1990), and regarded by many at the time as an utterly novel reading of the First Amendment.