Foreordained Failure The Quest for a Constitutional Principle of Religious Freedom

by Smith, Steven D.

• ISBN13: 9780195132489
• ISBN10: 0195132483
• Format: Paperback
• Copyright: 1999-04-22
• Publisher: Oxford University Press

Summary

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.

Author Biography

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.

Table of Contents

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