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 Foreordained Failure, Smith argues that efforts to find a principle of religious freedom in the "original meaning" are futile, but not because the original meaning is irrecoverable. The difficulty is that the religion clauses were not originally intended to approve any principle or right of religious freedom. Rather, the clauses were purely jurisdictional in nature; they were intended to do nothing more than confirm that authority over questions of religion remained with the states. This work will be of great interest to law scholars, lawyers, judges, and other readers concerned with the subject of religious freedom.

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.