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Foreordained Failure : The Quest for a Constitutional Principle of Religious Freedom - Steven D. Smith

Foreordained Failure

The Quest for a Constitutional Principle of Religious Freedom

Paperback

Published: 1st July 1999
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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.

"Foreordained Failure thoroughly treats the constitutional issue of the basic principles underlying the right of freedom of religion; it is politically significant at this time because of the growing power of the religious right in our society....It is a provocative essay, and its points deserve wide discussion. It is clearly written and very well documented."--Choice "Steven Smith's Foreordained Failure is perhaps the most important book ever written on the religion clauses of the Constitution. If Smith is correct, the widely acknowledged failure of religion clause jurisprudence can be seen as the inevitable consequence of a fundamental misunderstanding of the clauses' scope and purposes. No court or academic commentator dealing with the clauses can ignore Smith's arguments."--Larry A. Alexander, University of San Diego School of Law "Steven Smith is one of the most imaginative new voices in contemporary legal studies."--Michael J. Perry, Northwestern University School of Law "An excellent work, replete with original and important insights. What makes Foreordained Failure so powerful and important is that it runs dead against the grain of conventional liberal thought about the institution of judicial review generlly and the correct interpretations of the religion clauses particularly."--Ira C. Lupu, The George Washington University "Smith's approach is refreshing because he is concerned with asking the right questions and not with advancing his answers."--The Appellate Practice Journal "Foreordained Failure thoroughly treats the constitutional issue of the basic principles underlying the right of freedom of religion; it is politically significant at this time because of the growing power of the religious right in our society....It is a provocative essay, and its points deserve wide discussion. It is clearly written and very well documented."--Choice "Steven Smith's Foreordained Failure is perhaps the most important book ever written on the religion clauses of the Constitution. If Smith is correct, the widely acknowledged failure of religion clause jurisprudence can be seen as the inevitable consequence of a fundamental misunderstanding of the clauses' scope and purposes. No court or academic commentator dealing with the clauses can ignore Smith's arguments."--Larry A. Alexander, University of San Diego School of Law "Steven Smith is one of the most imaginative new voices in contemporary legal studies."--Michael J. Perry, Northwestern University School of Law "An excellent work, replete with original and important insights. What makes Foreordained Failure so powerful and important is that it runs dead against the grain of conventional liberal thought about the institution of judicial review generlly and the correct interpretations of the religion clauses particularly."--Ira C. Lupu, The George Washington University "Smith's approach is refreshing because he is concerned with asking the right questions and not with advancing his answers."--The Appellate Practice Journal "The book is admirably clear in design and statement, and its argument is extensively and forcefully developed against numerous contrary claims and possible objections....Smith makes an important contribution to the discussion."--The Journal of Religion "Important...fresh, provocative, and will certainly stimulate debate."--The Review of Politics "This is a provocative book. Its thesis is clearly stated, well supported, and carefully qualified...Professor Steven Smith has produced and innovative, well researched analysis of the challenges of interpretation posed by the religion clauses of the First Amendment. This study is an important contribution to the extensive scholarly commentary on freedom of religion and is highly recommended."--The Law and Politics Book Review "[Smith's] argument is honest and unpretentious, and for that reason it invites belief."--Michigan Law Review "Smith's historical argument is powerfully presented."--Constitutional Commentary "Pungent and persuasive....Required reading for those who would understand the legal and political questions swirling about religious freedom in America."--First Things "...refreshingly clear and vigorous."--Ecclesiastical Law Journal

Introduction: Rethinking "Rethinking Religious Liberty"p. 3
The Jurisdictional Character of the Religion Clausesp. 17
Is the Free Exercise Clause Different?p. 35
The Nullification of Original Meaningp. 45
The Theory Projectp. 55
The Fundamental Conundrump. 63
The Pursuit of Neutralityp. 77
A Secular Theory of Religious Freedom?p. 99
Afterword: Normative Questionsp. 119
Notesp. 129
Indexp. 169
Table of Contents provided by Blackwell. All Rights Reserved.

ISBN: 9780195132489
ISBN-10: 0195132483
Series: Quest for a Constitutional Principle of Religious Freedom
Audience: Professional
Format: Paperback
Language: English
Number Of Pages: 192
Published: 1st July 1999
Publisher: Oxford University Press Inc
Country of Publication: US
Dimensions (cm): 22.91 x 15.39  x 1.3
Weight (kg): 0.29