PROPERTIED RITES.

• Author: Funk, Kellen R.

BEYOND BELIEF, BEYOND CONSCIENCE: THE RADICAL SIGNIFICANCE OF THE FREE EXERCISE OF RELIGION. By Jack N. Rakove. (1) Oxford: Oxford University Press, 2020. Pp. 240. $22.95 (Hardcover).

CHURCH STATE CORPORATION: CONSTRUING RELIGION IN US LAW. By Winnifred Fallers Sullivan. (2) Chicago: University of Chicago Press, 2020. Pp. 192. $27.50 (Paperback).

A pious fan once asked the humorist Mark Twain if he believed in infant baptism. (To preview themes to come: Even the most liberal individual likes to know her faith is shared in community.) "Believe in it?" he exclaimed in response, "Hell, I've seen it done!" (4)

Although it may be only mildly humorous (though I confess laughing every time I hear it), there is a profound turn in the playful substitution of physical facts for theological truths in the ambiguity of "belief." At first, the inversion looks like a dodge. A difficult and highly fraught question of Christian theology, one over which communities have been torn and blood has been shed, (5) turns at once into a seemingly simple question of observation, like whether one can believe in the unicorn or the platypus. The implicit threat behind the question--that an errant answer will sunder fellowship in the here and now, and forfeit life in the world to come--is apparently disarmed, violence exchanged for laugher, swords beaten into ploughshares.

But sit a moment with the humorist's answer and it becomes far less clear that one is watching a simple dodge. In a way, Twain's joke anticipates the course of late-nineteenth century religious ethnography and neatly encapsulates in a line the upshot of William James's The Will to Believe and related writings: first observe the rite, in order to grasp the faith (or be grasped by it). (6) The threat of the question is thrown back on the inquirer. Start with the fact that millions of Christians have observed this rite over thousands of years, most with the steady confidence that they were performing the will of the one true God for their lives. If you don't believe in infant baptism, how do you account for this massive fact of human experience? (7) If one were to tackle the fraught theology of infant baptism, a good place to start is seeing it done.

Moreover, the joke works only because it involves a rite like baptism, a rite that can be experienced, even if not believed. In baptism, Christian belief engages the world of the material stuff. People gather to bear witness; the waters are moved. (8) And there the complications of experience arise. The water must come from somewhere. The persons celebrating the baptism either do or do not have the legal authorization to access, possess, or even own the material stuff that makes up the rite. Baptism, in short, is a propertied rite, one that ultimately depends on the property rights of the corporate body performing the ritual act. Experience turns out to be a much more complicated affair than mere belief.

Over the last decade, a certain skepticism has confronted the field of law-and-religion, targeting in particular the First Amendment's guarantee that no law shall abridge the free expression of religion. (9) Books with titles like The Impossibility of Religious Freedom and especially The Myth of American Religious Freedom have challenged not just the practices of free exercise doctrine but the very notion that religious expression is protected or protectable on equal terms in a liberal republic. (10) A cottage industry of what we might call Neo-Madisonian argument has arisen in response, some of it more historically inflected than the rest, but all contending that the basic framework of religious rights in the liberal tradition can and does succeed at protecting the fundamental autonomy of individuals while keeping the peace between communities. (11) While most of this conversation has been carried on by lawyers for lawyers, two recent works offer us the historians' approach to these questions. While coming to radically different conclusions, each takes the question of whether one can believe in American religious freedom and shows the ways each author has seen it done.

This Essay reviews Jack Rakove's Beyond Belief, Beyond Conscience and Winnifred Fallers Sullivan's Church State Corporation with an eye towards the complex management of religious property in U.S. constitutional doctrine. Part I summarizes Rakove's book and highlights its value in the context of recent scholarship on early American legislative theory. Part II critiques Rakove's turn from description towards advocacy of James Madison's liberal protestant political theology. Part III summarizes Sullivan's book as a particularly potent rebuttal to Rakove's. Part IV takes up Sullivan's method to consider the most recent crisis of religious property before the Supreme Court, that of government lockdowns in the COVID-19 pandemic. Part V concludes.

1. CONSCIENCE IS THE MOST SACRED OF ALL PROPERTY: RAKOVE'S MADISONIAN FAITH

   Jack N. Rakove's Beyond Belief, Beyond Conscience opens by announcing the twin postulates that made Madison and Jefferson "radical" legislators (the latter sometimes receives equal casting, sometimes plays a bit part). First, "[f]reedom of conscience and the public expression of religious beliefs were natural rights that every individual owned, just as they owned their property" (p. 2). Second, government was limited to the powers delegated by the sovereign people, and therefore "there were areas of human activity that its lawmaking power could not reach" (p. 2). In the "view from Montpelier and Monticello," religious freedom "was the most liberal right of all," as "[r]eligion was a wholly private matter, a duty to be discharged by autonomous individuals and the voluntary religious associations (call them churches, synagogues, congregations, or meetings) where worshippers gathered" (pp. 2-3). Rakove announces that the purpose of the book "will be less concerned with critiquing judicial notions of religious freedom" than with exploring the "conditions and tensions embodied in our historical experience" surrounding Madison's ideas (pp. 5-6).

   To help us appreciate the radicalism of these ideas, particularly as compared to religious toleration in the Old World, Rakove's first two chapters tour through European and early American styles of toleration. The central point, Rakove tells us, is that the traditional "practice of tolerance meant having to shoulder an offensive burden" (pp. 13-14). Tolerance did not mean that one could accepet a disagreeable idea but precisely that one could not, but was going to endure its presence in civil society anyway. To be tolerated was to be simultaneously marked as odious. (12) The first chapter offers a brief chronicle of Europe's stumbling attempts towards and reversals away from modes of tolerance. In the main, Rakove summarizes, "[r]eligion was too important a matter, too much an element of state policy, to be treated as a personal right that ordinary individuals simply or naturally possessed" (p. 22).

   In excavating this history, Rakove finds two early stirrings towards American-style religious freedom. The first was the elevation of individual conscience among radical sects of Baptists, Anabaptists, and Quakers. Despite harsh repression and persecution of these sects, Rakove concludes that "[o]nce released, the genie of conscience and the desire to lead a religious life consistent with one's moral commitments could not be restrained" (p. 29). The second source was the writings of John Locke, which Rakove is careful to note were more exemplary of thought at the time rather than the one original source of it. The key move in Locke's Letter Concerning Toleration ("the one with the greatest constitutional significance" (p. 37)) was the separation of religious and temporal spheres, the severance of "the Business of Civil Government from that of Religion." (13)

   In Locke's schema, religion concerned private beliefs on which turned one's destiny in the world to come. To civil government belonged everything else in the here and now. On the one side: individual belief; on the other: the literal commonwealth of life, liberty, and especially property. Rakove notes in passing that Locke's division had "a fundamentally Christian, even Protestant character" (p. 37). One might say especially Protestant (if one could not settle on a more precisely sectarian label). We will return to the point later, but it suffices to note for now that the separate spheres of private belief with eternal consequences and temporal conduct in a desacralized world of property and regulation is ineluctably a theological (and contestable) proposition.

   In the American colonies, the tense dynamics of European toleration played out along similar lines, Rakove suggests, with the notable difference that sectarian Protestants had a much freer rein without the constant engagement with and contestation over Catholic iconography that distracted their overseas counterparts (pp. 44-45). The final set piece to prepare the stage for Madison and Jefferson was, in Rakove's accounting, the Great Awakening. The proliferation of dissenting sects through conversion put the established churches on the defensive, ironically moving Anglicans by the end to demand toleration for "the detested prerogatives of an established church" (p. 64). Furthermore, "[b]ecause so many of these preachers [during the Awakening] taught a Gospel of conversion nurtured by Baptist or Methodist convictions, they made every individual's claims for a sovereignty of conscience a paramount concern" (p. 65). Thus, both of the radical innovations that would flow from Madison's pen were prefigured and grounded in an increasingly liberalized Protestant theology of conversion. "Liberty of conscience mattered to Americans," Rakove concludes, "because that was something they were routinely urged to exercise, and to treat as a right they could never alienate" (p. 65). Believe in the sovereign...