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 principle of religious freedom in the "original meaning" are fruitless because the clauses were purely jurisdictional in 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.

192 pages, Paperback

First published January 26, 1995

About the author

Professor Steven D Smith is the Warren Distinguished Professor of Law at San Diego University, and is the Co-Executive Director for both the Institute of Law and Religion, and the Institute for Law and Philosophy. He teaches in the area of law and religion, including as visiting professor at the University of Michigan and the University of Virginia.

Areas of Expertise are Constitutional Interpretation, Torts, Jurisprudence and Legal Theory, Law and Religion, Religious Freedom/Separation of Church and State, Federal Courts, Constitutional Law.

www.sandiego.edu/law/about/directory/...

Reviews

[Michael Nichols · Rating 4 out of 5]

Smith’s thesis is that there simply is no principle of religious freedom to be discerned in constitutional law, and attempts to explain why are foreordained failures. Against those who say we do not know what the original intent of the religion clauses were or what the founders meant by them, Smith makes the compelling case that we very much do know; the federal courts consistently redirected these issues back to the states to be decided on the state level. Against those who think we must reconstruct our own viable principle of religious freedom for today, Smith argues no such theory is available. He contends the relation between government and religion cannot be delineated in a singular theory, so we should adopt a prudential approach to issues of religious freedom that treats cases on a case by case basis.