A Property of Peculiar Value: Land, Religion and the Constitution

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’.1 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.