Vol. 6, No. 2 (February, 1996) pp. 20-22

FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM by Steven D. Smith. New York: Oxford University Press, 1995. 174pp

Reviewed by Otis H. Stephens, Department of Political Science, University of Tennessee, Knoxville

Scholarly criticism of the U.S. Supreme Court's interpretation of the religion clauses of the First Amendment is widespread and persistent. Most of this criticism is directed at the apparent inability of the justices to articulate and consistently apply clear standards for determining the meaning of freedom of religion and the corresponding limits on governmental power embodied in the establishment and free exercise clauses. Efforts to fashion constitutional doctrine by employing terms such as "secular legislative effect," "advancement of religion," "excessive entanglement" between government and religion (the so-called LEMON test), "accommodation," and "neutrality" have been vigorously attacked by dissenting justices and commentators alike. Alternatives such as the "endorsement" and "coercion" tests have been subjected to equally strong denunciation.

In FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM, Professor Steven D. Smith who teaches law at the University of Colorado, moves far beyond conventional criticism of various views advanced by judges and scholars. He maintains at the outset that a "malaise" afflicts "contemporary constitutional discourse" on religious freedom and that this condition cannot be "cured" merely by administering mild remedies such as more careful historical research or more clearly articulated alternatives to existing standards. He finds the prevailing "discourse of adjustment" capable of "provoking strident disagreements," but "ultimately quite complacent about the possibilities and the general directions of the scholarly and judicial enterprise.". This discovery leads him to conclude that what should be challenged is "the enterprise itself, with its underlying assumptions and directions of inquiry."(vi)

Smith's basic thesis is that "virtually the whole of modern religion clause discourse is misconceived in its very foundations."(vi) The problem, he believes, is not that judges and scholars have given careless answers regarding freedom of religion, but that in seeking to determine the meaning and scope of the constitutional principle of religious freedom, they have been asking the wrong questions. He insists that these questions are unanswerable and that their pursuit is doomed to failure. Rather than looking for a nonexistent objective principle of religious freedom, he contends that they should recognize the existence of many versions of religious freedom, varying over time and from one person to another.

Smith supports these bold assertions by effectively combining methodologies of historical inquiry and legal analysis. Early chapters of his short book are devoted largely to a critique of the "originalist " approach to the meaning of the religion clauses. The gist of his argument is that the establishment and free exercise clauses, as originally conceived, were purely jurisdictional in nature. They embodied no substantive right or principle of religious freedom whatsoever. The provision that "Congress shall make no law respecting

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Smith briefly discusses the controversy over incorporation of the religion clauses into the Fourteenth Amendment. He cites scholarly work indicating that by 1868, when the Fourteenth Amendment was adopted, some legislators believed that the religion clauses had acquired greater substantive content and scope than the framers of the First Amendment intended. By the 1860's more credence was apparently given to the view that the national government should promote religion in the interest of community. Assuming that the authors of the Fourteenth Amendment intended to incorporate the religion clauses (and this is debatable), did they intend to incorporate the originalist meaning or the meaning that these clauses had acquired in the intervening decades? If the EVERSON Court had accepted the latter alternative when it incorporated the establishment clause into the Fourteenth Amendment, thus making it applicable to the states, the views of Jefferson and Madison might not have been accorded such decisive importance. In light of the ongoing controversy over the Court's acceptance of Jefferson's "wall of separation" metaphor, the implications of choosing a Reconstruction era view of the meaning of the establishment clause are interesting. Smith uses this example effectively to illustrate the problems inherent in an originalist interpretation of the meaning of religious freedom

In the remaining chapters Smith analyzes and ultimately rejects various general theories of religious freedom . He concludes that the systematic requirements of general theorizing are simply inapplicable to questions concerning religious freedom. "Rather," he contends, "any account of religious freedom will necessarily depend on -- and hence will stand or fall along with -- more basic background beliefs concerning matters of religion and theology, the proper role of government, and "human nature"."(63) Proceeding on this assumption, Smith rigorously critiques various theoretical perspectives including: the "preferred position" approach; theories of neutrality; and secular state rationales. Finding each of these perspectives inadequate, he opts instead for a nontheoretical alternative. He calls his approach "prudentialism," by which he means "judgment, intuition, instinct, gut feeling,' muddling through, ...'"(58)

In a useful Afterword, Smith amplifies the conclusions reached in previous chapters. In addition, he buttresses his preference for prudentialism with a tentative recommendation that judges and scholars reconsider historical jurisprudence, not to be confused with originalism, as a useful approach to issues of religious freedom. Excessive preoccupation with judicial review, he maintains, has led to a misguided and fruitless search for a unifying principle of religious freedom. He poses an intriguing question: "if judicial review is appropriate only to enforce a constitutional principle, and

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if there is not and cannot be any constitutional principle of religious freedom, doesn't it follow that courts should simply get out of the business of protecting religious freedom altogether (except, perhaps, when the positive law on the subject is more substantive and specific than the First Amendment's religion clauses are)?"(121) Smith, perhaps inconsistent with his stated intention to avoid normative prescriptions, seems to advocate this option. He suggests it, however, primarily as an alternative to inappropriate theorizing on religious freedom.

This is a provocative book. Its thesis is clearly stated, well supported, and carefully qualified. The author recognizes the possible implications of his argument for other areas of Constitutional interpretation. He limits the scope of his inquiry, however, to the field of religious freedom. If the book has a weakness, it is that the author's denial of the "possibility of any adequate general theory of religious freedom" may be overstated. Smith seems in fact to recognize this possibility on occasion. In any event, the effectiveness of his argument is not seriously undermined by this observation. Professor Steven Smith has produced an 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.