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

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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.
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Editorial Reviews

From the Publisher

"Foreordained Failure thoroughly treats the constitutional issue of the basic principles underlying the right of freedom of religion; it is politically significant at this time because of the growing power of the religious right in our society....It is a provocative essay, and its points deserve wide discussion. It is clearly written and very well documented."--Choice

"Steven Smith's Foreordained Failure is perhaps the most important book ever written on the religion clauses of the Constitution. If Smith is correct, the widely acknowledged failure of religion clause jurisprudence can be seen as the inevitable consequence of a fundamental misunderstanding of the clauses' scope and purposes. No court or academic commentator dealing with the clauses can ignore Smith's arguments."--Larry A. Alexander, University of San Diego School of Law

"Steven Smith is one of the most imaginative new voices in contemporary legal studies."--Michael J. Perry, Northwestern University School of Law

"An excellent work, replete with original and important insights. What makes Foreordained Failure so powerful and important is that it runs dead against the grain of conventional liberal thought about the institution of judicial review generlly and the correct interpretations of the religion clauses particularly."--Ira C. Lupu, The George Washington University

"Smith's approach is refreshing because he is concerned with asking the right questions and not with advancing his answers."--The Appellate Practice Journal

Law and Politics Book Review
This is a provocative book. Its thesis is clearly statedwell supportedand carefully qualified....Professor Steven Smith has produced an innovativewell researched analysis of the challenges of interpretation posed by the religion clauses of the First Amendment. This study is an important contribution to the extensive scholarly commentary on freedom of religion and is highly recommended.
Journal of Religion
Smith's book is a pleasure to read. It is crisply written and filled with fresh challenges to conventional wisdom. 'The book is admirably clear in design and statementand its argument is extensively and forcefully developed against numerous contrary claims and possible objections.
Constitutional Commentary
'Smith's historical argument is powerfully presented....He nicely ferrets out and critiques the background assumptions that inform modern theories of religious freedom. His book is insightful, original, and foreordained to succeed.
Texas Law Review
The author is often insightful and never dogmatic; no perspective is shielded from his probing skepticism.
Otis H. Stephens
Scholarly criticism of the U.S. Supreme Court's interpretation of the religion clauses of the First Amendment is widespread and persistent. Most of this criticism is directed at the apparent inability of the justices to articulate and consistently apply clear standards for determining the meaning of freedom of religion and the corresponding limits on governmental power embodied in the establishment and free exercise clauses. Efforts to fashion constitutional doctrine by employing terms such as "secular legislative effect," "advancement of religion," "excessive entanglement" between government and religion (the so-called LEMON test), "accommodation," and "neutrality" have been vigorously attacked by dissenting justices and commentators alike. Alternatives such as the "endorsement" and "coercion" tests have been subjected to equally strong denunciation. In FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM, Professor Steven D. Smith who teaches law at the University of Colorado, moves far beyond conventional criticism of various views advanced by judges and scholars. He maintains at the outset that a "malaise" afflicts "contemporary constitutional discourse" on religious freedom and that this condition cannot be "cured" merely by administering mild remedies such as more careful historical research or more clearly articulated alternatives to existing standards. He finds the prevailing "discourse of adjustment" capable of "provoking strident disagreements," but "ultimately quite complacent about the possibilities and the general directions of the scholarly and judicial enterprise.". This discovery leads him to conclude that what should be challenged is "the enterprise itself, with its underlying assumptions and directions of inquiry."(vi) Smith's basic thesis is that "virtually the whole of modern religion clause discourse is misconceived in its very foundations."(vi) The problem, he believes, is not that judges and scholars have given careless answers regarding freedom of religion, but that in seeking to determine the meaning and scope of the constitutional principle of religious freedom, they have been asking the wrong questions. He insists that these questions are unanswerable and that their pursuit is doomed to failure. Rather than looking for a nonexistent objective principle of religious freedom, he contends that they should recognize the existence of many versions of religious freedom, varying over time and from one person to another. Smith supports these bold assertions by effectively combining methodologies of historical inquiry and legal analysis. Early chapters of his short book are devoted largely to a critique of the "originalist " approach to the meaning of the religion clauses. The gist of his argument is that the establishment and free exercise clauses, as originally conceived, were purely jurisdictional in nature. They embodied no substantive right or principle of religious freedom whatsoever. The provision that "Congress shall make no law respecting Page 21 follows: Smith briefly discusses the controversy over incorporation of the religion clauses into the Fourteenth Amendment. He cites scholarly work indicating that by 1868, when the Fourteenth Amendment was adopted, some legislators believed that the religion clauses had acquired greater substantive content and scope than the framers of the First Amendment intended. By the 1860's more credence was apparently given to the view that the national government should promote religion in the interest of community. Assuming that the authors of the Fourteenth Amendment intended to incorporate the religion clauses (and this is debatable), did they intend to incorporate the originalist meaning or the meaning that these clauses had acquired in the intervening decades? If the EVERSON Court had accepted the latter alternative when it incorporated the establishment clause into the Fourteenth Amendment, thus making it applicable to the states, the views of Jefferson and Madison might not have been accorded such decisive importance. In light of the ongoing controversy over the Court's acceptance of Jefferson's "wall of separation" metaphor, the implications of choosing a Reconstruction era view of the meaning of the establishment clause are interesting. Smith uses this example effectively to illustrate the problems inherent in an originalist interpretation of the meaning of religious freedom In the remaining chapters Smith analyzes and ultimately rejects various general theories of religious freedom . He concludes that the systematic requirements of general theorizing are simply inapplicable to questions concerning religious freedom. "Rather," he contends, "any account of religious freedom will necessarily depend on -- and hence will stand or fall along with -- more basic background beliefs concerning matters of religion and theology, the proper role of government, and "human nature"."(63) Proceeding on this assumption, Smith rigorously critiques various theoretical perspectives including: the "preferred position" approach; theories of neutrality; and secular state rationales. Finding each of these perspectives inadequate, he opts instead for a nontheoretical alternative. He calls his approach "prudentialism," by which he means "judgment, intuition, instinct, gut feeling,' muddling through, ...'"(58) In a useful Afterword, Smith amplifies the conclusions reached in previous chapters. In addition, he buttresses his preference for prudentialism with a tentative recommendation that judges and scholars reconsider historical jurisprudence, not to be confused with originalism, as a useful approach to issues of religious freedom. Excessive preoccupation with judicial review, he maintains, has led to a misguided and fruitless search for a unifying principle of religious freedom. He poses an intriguing question: "if judicial review is appropriate only to enforce a constitutional principle, and Page 22 follows: if there is not and cannot be any constitutional principle of religious freedom, doesn't it follow that courts should simply get out of the business of protecting religious freedom altogether (except, perhaps, when the positive law on the subject is more substantive and specific than the First Amendment's religion clauses are)?"(121) Smith, perhaps inconsistent with his stated intention to avoid normative prescriptions, seems to advocate this option. He suggests it, however, primarily as an alternative to inappropriate theorizing on religious freedom. This is a provocative book. Its thesis is clearly stated, well supported, and carefully qualified. The author recognizes the possible implications of his argument for other areas of Constitutional interpretation. He limits the scope of his inquiry, however, to the field of religious freedom. If the book has a weakness, it is that the author's denial of the "possibility of any adequate general theory of religious freedom" may be overstated. Smith seems in fact to recognize this possibility on occasion. In any event, the effectiveness of his argument is not seriously undermined by this observation. Professor Steven Smith has produced an innovative, well researched analysis of the challenges of interpretation posed by the religion clauses of the First Amendment. This study is an important contribution to the extensive scholarly commentary on freedom of religion and is highly recommended.
Texas Law Review
The author is often insightful and never dogmatic; no perspective is shielded from his probing skepticism.
Law and Politics Book Review
This is a provocative book. Its thesis is clearly stated, well supported, and carefully qualified....Professor Steven Smith has produced an innovative, well researched analysis of the challenges of interpretation posed by the religion clauses of the First Amendment. This study is an important contribution to the extensive scholarly commentary on freedom of religion and is highly recommended.
Journal of Religion
Smith's book is a pleasure to read. It is crisply written and filled with fresh challenges to conventional wisdom. 'The book is admirably clear in design and statement, and its argument is extensively and forcefully developed against numerous contrary claims and possible objections.
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Product Details

  • ISBN-13: 9780195132489
  • Publisher: Oxford University Press, USA
  • Publication date: 4/28/1999
  • Edition description: New Edition
  • Pages: 192
  • Product dimensions: 5.90 (w) x 9.00 (h) x 0.60 (d)

Meet the Author

Steven D. Smith is Professor of Law at the University of Notre Dame. He has taught and published extensively on legal subjects, including constitutional law and jurisprudence.

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Table of Contents

1 Introduction: Rethinking "Rethinking Religious Liberty" 3
2 The Jurisdictional Character of the Religion Clauses 17
3 Is the Free Exercise Clause Different? 35
4 The Nullification of Original Meaning 45
5 The Theory Project 55
6 The Fundamental Conundrum 63
7 The Pursuit of Neutrality 77
8 A Secular Theory of Religious Freedom? 99
9 Afterword: Normative Questions 119
Notes 129
Index 169
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