Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom.
Constitutional Commentary › Vol. 14 Nbr. 2, June 1997
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Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom.
One hallmark of successful scholarship is its ability to take a seemingly outrageous proposition and make it seem obvious. By this standard, Steven D. Smith's Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom is a success. Professor Smith advances two such propositions: first, that the Constitution's framers envisioned the religion clauses not as substantive provisions, but as a single jurisdictional provision designed to leave the substance of religious freedom to the states; and second, that an adequate substantive theory of religious freedom is impossible. Smith's claims run against the grain of virtually all modem church-state theory. Nonetheless, he makes a compelling case for both propositions.
Part I of this Review discusses Foreordained Failure's historical argument -- that the First Amendment embodies no substantive principle of religious liberty. I argue that even if Smith is right to conclude that the primary purpose of the religion clauses was jurisdictional, this conclusion does not obviate the need to determine the clauses' substantive scope. Jurisdiction is a synonym for authority, and someone must still determine what Congress lacks jurisdiction to do. Part II addresses Smith's second, more theoretical argument -- that a general theory of religious freedom is impossible. Upon examination, it is clear that what Smith is really arguing is that a genuinely "neutral" theory of religious freedom is impossible. But even if perfect neutrality is elusive, it does not follow that the project of theorizing about religious liberty is hopeless. Rather, Smith's argument suggests we might reconsider when neutrality is possible and whether it is a proper objective of our religion clause jurisprudence. Part III briefly explores a few of the broader implications and ironies of Smith's two theses. I. SMITH'S HISTORICAL ARGUMEN...See the full content of this document
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