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: The Quest for a Constitutional Principle of Religious Freedom

Religion & Spirituality

Smith, Steven D.

Religious Studies

Oxford University Press

Attempting to realize Plato's vision of a republic governed by "reason," American constitutionalists, according to Steven D. Smith's bold new critical study, have instead reenacted the Tower of Babel myth, producing a constitutional discourse marked by rampant confusion, elaborate sophistry, and thinly veiled authoritarian bullying. How is it that the pursuit of such lofty aims by yesterday's framers and today's scholars has left us mired in a constitutional morass? This timely book ponders that question with the intellectual vigor it deserves. Observing that standard accounts of constitutional law--both the "conservative" and "liberal" varieties--have lost their power to illuminate, The Constitution and the Pride of Reason explores how constitutional law hangs together (and how it falls apart) by investigating the perennial claim that the Constitution and its interpretation somehow embody a commitment to governance by "reason." What does this claim mean, and is it valid? In confronting these queries, Smith offers revealing and iconoclastic assessments of constitutionalists ranging from Madison and Jefferson to Dworkin and Bork. Also detailed in these pages is a provocative overview of the whole constitutional project, from its noble aspirations to its tragic failures. A truly visionary work that investigates the scholarship, the design, and the history of the quintessential American legal document, this volume also sensibly reflects on the meaning and possibility of the ethical commitment to the "life of reason." It will appeal not only to students of constitutional law but also to those interested in political science, philosophy, and American history.

The Constitution and the Pride of Reason

Constitutional Law

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.

Legal History

Fictions, Lies, and the Authority of Law discusses legal, political, and cultural difficulties that arise from the crisis of authority in the modern world. Is there any connection linking some of the maladies of modern life--"cancel culture," the climate of mendacity in public and academic life, fierce conflicts over the Constitution, disputes over presidential authority? Fictions, Lies, and the Authority of Law argues that these diverse problems are all a consequence of what Hannah Arendt described as the disappearance of authority in the modern world. In this perceptive study, Steven D. Smith offers a diagnosis explaining how authority today is based in pervasive fictions and how this situation can amount to, as Arendt put it, "the loss of the groundwork of the world." Fictions, Lies, and the Authority of Law considers a variety of problems posed by the paradoxical ubiquity and absence of authority in the modern world. Some of these problems are jurisprudential or philosophical in character; others are more practical and lawyerly--problems of presidential powers and statutory and constitutional interpretation; still others might be called existential. Smith's use of fictions as his purchase for thinking about authority has the potential to bring together the descriptive and the normative and to think about authority as a useful hypothesis that helps us to make sense of the empirical world. This strikingly original book shows that theoretical issues of authority have important practical implications for the kinds of everyday issues confronted by judges, lawyers, and other members of society. The book is aimed at scholars and students of law, political science, and philosophy, but many of the topics it addresses will be of interest to politically engaged citizens.

Fictions, Lies, and the Authority of Law (Catholic Ideas for a Secular World)

Politics & Social Sciences

Philosophy

University of Notre Dame Press

This book considers how the modern concept of "conscience" turns the historic commitment on its head, in a way that underlies the decadence of modern society. Steven D. Smith's books are always anticipated with great interest by scholars, jurists, and citizens who see his work on foundational questions surrounding law and religion as shaping the debate in profound ways. Now, in The Disintegrating Conscience and the Decline of Modernity, Smith takes as his starting point Jacques Barzun's provocative assertion that "the modern era" is coming to an end. Smith considers the question of decline by focusing on a single theme--conscience--that has been central to much of what has happened in Western politics, law, and religion over the past half-millennium. Rather than attempting to follow that theme step-by-step through five hundred years, the book adopts an episodic and dramatic approach by focusing on three main figures and particularly portentous episodes: first, Thomas More's execution for his conscientious refusal to take an oath mandated by Henry VIII; second, James Madison's contribution to Virginia law in removing the proposed requirement of religious toleration in favor of freedom of conscience; and, third, William Brennan's pledge to separate his religious faith from his performance as a Supreme Court justice. These three episodes, Smith suggests, reflect in microcosm decisive turning points at which Western civilization changed from what it had been in premodern times to what it is today. A commitment to conscience, Smith argues, has been a central and in some ways defining feature of modern Western civilization, and yet in a crucial sense conscience in the time of Brennan and today has come to mean almost the opposite of what it meant to Thomas More. By scrutinizing these men and episodes, the book seeks to illuminate subtle but transformative changes in the commitment to conscience--changes that helped to bring Thomas More's world to an end and that may also be contributing to the disintegration of (per Barzun) "the modern era."

The Disintegrating Conscience and the Decline of Modernity (Catholic Ideas for a Secular World)

History

World

This lively book reassesses a century of jurisprudential thought from a fresh perspective, and points to a malaise that currently afflicts not only legal theory but law in general. Steven Smith argues that our legal vocabulary and methods of reasoning presuppose classical ontological commitments that were explicitly articulated by thinkers from Aquinas to Coke to Blackstone, and even by Joseph Story. But these commitments are out of sync with the world view that prevails today in academic and professional thinking. So our law-talk thus degenerates into "just words"--or a kind of nonsense. 
 The diagnosis is similar to that offered by Holmes, the Legal Realists, and other critics over the past century, except that these critics assumed that the older ontological commitments were dead, or at least on their way to extinction; so their aim was to purge legal discourse of what they saw as an archaic and fading metaphysics. Smith's argument starts with essentially the same metaphysical predicament but moves in the opposite direction. Instead of avoiding or marginalizing the "ultimate questions," he argues that we need to face up to them and consider their implications for law.

Law's Quandary

Harvard University Press

This lively book reassesses a century of jurisprudential thought from a fresh perspective, and points to a malaise that currently afflicts not only legal theory but law in general. Steven Smith argues that our legal vocabulary and methods of reasoning presuppose classical ontological commitments that were explicitly articulated by thinkers from Aquinas to Coke to Blackstone, and even by Joseph Story. But these commitments are out of sync with the world view that prevails today in academic and professional thinking. So our law-talk thus degenerates into "just words"--or a kind of nonsense.
The diagnosis is similar to that offered by Holmes, the Legal Realists, and other critics over the past century, except that these critics assumed that the older ontological commitments were dead, or at least on their way to extinction; so their aim was to purge legal discourse of what they saw as an archaic and fading metaphysics. Smith's argument starts with essentially the same metaphysical predicament but moves in the opposite direction. Instead of avoiding or marginalizing the "ultimate questions," he argues that we need to face up to them and consider their implications for law.

Europe

Prominent observers complain that public discourse in America is shallow and unedifying. This debased condition is often attributed to, among other things, the resurgence of religion in public life. Steven Smith argues that this diagnosis has the matter backwards: it is not primarily religion but rather the strictures of secular rationalism that have drained our modern discourse of force and authenticity.
Thus, Rawlsian “public reason” filters appeals to religion or other “comprehensive doctrines” out of public deliberation. But these restrictions have the effect of excluding our deepest normative commitments, virtually assuring that the discourse will be shallow. Furthermore, because we cannot defend our normative positions without resorting to convictions that secular discourse deems inadmissible, we are frequently forced to smuggle in those convictions under the guise of benign notions such as freedom or equality.
Smith suggests that this sort of smuggling is pervasive in modern secular discourse. He shows this by considering a series of controversial, contemporary issues, including the Supreme Court’s assisted-suicide decisions, the “harm principle,” separation of church and state, and freedom of conscience. He concludes by suggesting that it is possible and desirable to free public discourse of the constraints associated with secularism and “public reason.”

The Disenchantment of Secular Discourse

Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.
Smith maintains that the distinctive American contribution to religious freedom was not in the First Amendment, which was intended merely to preserve the political status quo in matters of religion. What was important was the commitment to open contestation between secularist and providentialist understandings of the nation which evolved over the nineteenth century. In the twentieth century, far from vindicating constitutional principles, as conventional wisdom suggests, the Supreme Court imposed secular neutrality, which effectively repudiated this commitment to open contestation. Rather than upholding what was distinctively American and constitutional, these decisions subverted it. The negative consequences are visible today in the incoherence of religion clause jurisprudence and the intense culture wars in American politics.

The Rise and Decline of American Religious Freedom

Americas

Pagans and Christians in the City: Culture Wars from the Tiber to the Potomac (Emory University Studies in Law and Religion (EUSLR))

Traditionalist Christians who oppose same-sex marriage and other cultural developments in the United States wonder why they are being forced to bracket their beliefs in order to participate in public life. This situation is not new, says Steven D. Smith: Christians two thousand years ago faced very similar challenges. 
Picking up poet T. S. Eliot’s World War II–era thesis that the future of the West would be determined by a contest between Christianity and “modern paganism,” Smith argues in this book that today’s culture wars can be seen as a reprise of the basic antagonism that pitted pagans against Christians in the Roman Empire. Smith’s Pagans and Christians in the City looks at that historical conflict and explores how the same competing ideas continue to clash today. All of us, Smith shows, have much to learn by observing how patterns from ancient history are reemerging in today’s most controversial issues.

Eerdmans

See the best price to sell, buy, or rent books by Smith, Steven D.. BookScouter helps to compare book prices from 25+ online bookstores and 30+ buyback vendors with a single search.

Books by Smith, Steven D.

See the best price to sell, buy, or rent books by Smith, Steven D.. BookScouter helps to compare book prices from 25+ online bookstores and 30+ buyback vendors with a single search.

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

The Constitution and the Pride of Reason

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

Fictions, Lies, and the Authority of Law (Catholic Ideas for a Secular World)

The Disintegrating Conscience and the Decline of Modernity (Catholic Ideas for a Secular World)

Law's Quandary

Law's Quandary

The Disenchantment of Secular Discourse

The Rise and Decline of American Religious Freedom

Pagans and Christians in the City: Culture Wars from the Tiber to the Potomac (Emory University Studies in Law and Religion (EUSLR))