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

• Author: Johnson, Steffen N.

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.

1. SMITH'S HISTORICAL ARGUMENT: THE "ESSENTIAL FEDERALISM" OF THE

   RELIGION CLAUSES

   Smith's historical argument begins with a claim few judges and scholars would dispute: that the religion clauses were "an exercise in federalism." (p. 18) Many have commented on the religion clauses' federalist character, (p. 18 nn.4 & 5 (collecting authorities)) and as many others have observed the difficulties attending their incorporation into the Fourteenth Amendment.3 The problem, says Smith, is the "virtually ubiquitous" assumption "that the religion clauses contain both a federalist element and a substantive principle or right and that their substantive content can be extracted and elaborated independently of the clauses' federalism." (p. 18) (emphasis added) For Smith, this "dualistic view of the religion clauses" is mistaken. The religion clauses," he argues, "were not a hybrid creation -- part federalism, part substantive right. They were, rather, simply an assignment of jurisdiction over matters of religion to the states -- no more, no less." (p. 18)

   In advancing this argument, Smith suggests it is helpful to remember that the founders grappled with two sorts of questions. The first sort of question -- "What is the proper relation between religion and government?" -- might be thought of as "first-order" or "substantive." Smith terms this inquiry the "`religion question."' The second sort of question --" Which level of government, state or national, should be responsible for addressing the first-order question?" -- might be thought of as a "second-order" question. Smith calls it the "'jurisdiction question."' (p. 19)

   The rest, Smith says, is simply history. It is common knowledge that the founders' views on the religion question were divergent: some, motivated by a perception that religion was vital to orderly society' deemed government support for religion desirable;(4) (pp. 19-20) others, motivated by the same perception, opposed such support for fear that it would undermine true religious devotion.(5) (p. 20) Still others may have opposed support for religion, albeit less openly, on the ground that religion was unhelpful or detrimental to society. In short, the founders fundamentally disagreed over the proper relation between religion and government, yet the religion clauses passed with relatively little debate. Smith attributes this to the fact that the founders' divergence on the religion question prompted their convergence on the jurisdiction question. Adopting a purely jurisdictional First Amendment promised the best of all worlds: each state could answer the religion question however it saw fit.(6)

   This is certainly a plausible interpretation of the historical debate preceding the First Amendment's adoption.(7) One may attribute the substantive views of a certain founder or founders to the religion clauses, but no one may reasonably argue that there was complete consensus on matters of church and state. Smith simply infers from this lack of consensus that the founders resolved their dilemma by agreeing to disagree. Although the lack of historical evidence makes it impossible to verify his hypothesis, it is easy to imagine the perceived appeal of deferring all matters of religion and government to the states, where each framer had a much greater chance of seeing his own perspective prevail. Indeed, the very absence of recorded debate on the issue makes Smith's argument all the more plausible.(8) Would the founders readily have agreed to embodying a particular relation of church and state in the Constitution without putting up a fight for their own views? Hardly.

   Smith's argument nonetheless invites certain responses. First, it is hard to deny that the decision to leave substantive matters to the states was itself a substantive decision. Rephrasing the religion clauses, interpreted as a jurisdictional provision, elucidates this point.

   * Congress may neither establish religion nor prohibit its free exercise.

   * States may both establish religion and prohibit its free exercise.

   Read together, these clauses suggest an interaction of religion and government in which the states have exclusive authority over religion. Read independently, however, these clauses suggest a relation of church and state in which religion is at once both amenable to and immune from government legislation. Considered separately, the two provisions embody diametrically opposite substantive positions on the proper relation between church and state. Whereas the first clause contemplates a society in which the government's power over religion is circumscribed, the second clause contemplates a society in which the government is free to foster or fetter religion as deemed desirable. In other words, we might say the founders adopted not one jurisdictional provision, but two substantive provisions. Read as one provision, it may be more natural to focus on the religion clauses' jurisdictional character; read as two provisions, their substantive attributes become quite clear. Thus, even accepting Smith's reading of history, it is not entirely accurate to say the framers adopted a "purely" jurisdictional provision.

   Moreover, Smith fails to address the implications of his conclusion that the religion clauses are "purely" jurisdictional in nature.(9) Assuming he is correct, it follows that courts should be able to interpret them correctly simply by applying basic principles of federal preemption law -- in reverses. Under Smith interpretation, that is, the religion clauses preclude the federal government from acting in any manner that interferes with plenary state power over religion. This conclusion, however, raises several questions Smith fails to answer: If the federal government possesses no power over religion except that left to it by the states, what constitutes an interference with state power? Are there times when state measures impliedly "preempt" federal legislation "respecting" religion?(10) If the states fail to "occupy the field" and adopt a "hands off" approach as to matters of religion, is Congress free to legislate as :'!t pleases?(11)

   Suppose, for example, an early Congress enacted a draft pursuant tO its power to raise an army. Further suppose it drafted clergymen and conscientious objectors such as Quakers. In one...