Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom

Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom

by Steven D. Smith
     
 

Ever since the Supreme Court began enforcing the First Amendment's religion clauses in the 1940s, courts and scholars have tried to distill the meaning of those clauses into a useable principle of religious freedom. In this highly original work, Smith criticizes the main positions in the debate and explains their misconceptions. He argues that efforts to find a

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Overview

Ever since the Supreme Court began enforcing the First Amendment's religion clauses in the 1940s, courts and scholars have tried to distill the meaning of those clauses into a useable principle of religious freedom. In this highly original work, Smith criticizes the main positions in the debate and explains their misconceptions. He argues that efforts to find a principle of religious freedom in the "original meaning" are fruitless because the clauses were purely jurisdictional in nature: they were meant to place authority over questions of religion with the states, and nothing more. Contending that the perennial quest to distill religious freedom into a "principle," is futile, Smith advocates a fundamental reassessment of the premises upon which courts have proceeded in this area.

Product Details

ISBN-13:
9780195132489
Publisher:
Oxford University Press, USA
Publication date:
04/28/1999
Edition description:
New Edition
Pages:
192
Product dimensions:
5.90(w) x 9.00(h) x 0.60(d)

Table of Contents

1Introduction: Rethinking "Rethinking Religious Liberty"3
2The Jurisdictional Character of the Religion Clauses17
3Is the Free Exercise Clause Different?35
4The Nullification of Original Meaning45
5The Theory Project55
6The Fundamental Conundrum63
7The Pursuit of Neutrality77
8A Secular Theory of Religious Freedom?99
9Afterword: Normative Questions119
Notes129
Index169

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