Past Wounds, Present Scars: A Historical-Legal Analysis of Religion, Regulation, and Rights in Article 36 of the Chinese Constitution

This article focuses on the role of written constitutions and religion in the Chinese context, with a focused examination of the “no foreign domination qualifier” (“NFDQ”) of religion in Article 36 of the Chinese Constitution, for which little to no dedicated research has been conducted to date. The article conducts a historical-legal analysis to uncover reasons for the inclusion of the NFDQ in the Chinese Constitution, aiming to identify the nature of this unique clause. By examining treaties involving foreign control of Christianity imposed by various Western powers on nineteenth century China and their effects, the article identifies the NFDQ as both constitutionally denunciating past foreign control of religion, as well as mandating indigenous-Chinese management of religion in China. Based on this, the article examines how past foreign control of Christianity relates to the formation and structure of the Three-Self Patriotic Movement and Chinese Christian Association, the two national bodies tasked with overseeing Christianity in China. The article concludes by arguing that awareness of historical antecedents is indispensable for a proper understanding of the modern legal system governing religion in China and should not be neglected in discourse on the relationship between the state and religion in China today.