Today’s classic revisited is Steven D. Smith’s book, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995). If I were constructing a top all-time list of law and religion works, this book would surely make my top 3. The book is a classic in the law and religion canon because it is really the first explicitly to resist the notion that the religion clauses were meant to protect any single principle or value at all. They instead reflected a compromise among people who thought very differently about the proper relationship of church and state. The book is partially historical and partially theoretical; the latter sections examine the possibility of an “unprincipled” approach to religious liberty, and what it would look like.
As with all of Smith’s work, the book is a model of clear, accessible, and always insightful writing. If you are looking for a lucid book which will appeal equally to people who have studied these issues and a more generally educated audience, this is it. More than this, Smith’s book has inspired a rising generation of new writers (I count myself in this group) to explore themes which he was the first to illuminate. Here’s just a brief portion (at 11-12) to give you a rough feel for the book’s quality:
[W]e might acknowledge that there is no single or self-subsisting “principle” of religious freedom; there is only a host of individuals with a host of different opinions about how much and what kind of scope government ought to give to the exercise of religious beliefs and practices. Aquinas’s views on this subject were different from Cromwell’s; Cromwell’s were different from Madison’s. But all these figures believed in some version of religious freedom; they believed, that is, in giving some scope to divergent religious beliefs or practices. And it is simply misleading to suppose that there is a univocal principle of religious freedom, hovering in some Platonic realm independent of these different opinions — a principle of which the opinions of Aquinas, Cromwell, and Madison were more or less faithful copies.
It is important to clarify how this more pluralistic approach to the question differs from an approach that at least tacitly conceives of religious freedom as a unitary principle or singular ideal. In acknowledging a variety of versions of religious freedom, we can still insist that some opinions about the proper scope of religious freedom are more attractive, or more rationally defensible, than others. I might believe, for example, that the arguments for the positions I take on the issues of religious freedom are more persuasive than the arguments for the positions taken by Cromwell — or Justice Brennan. This disagreement, however, merely entails the familiar sort of debate about whose arguments are stronger or whose position is more attactive or plausible. There is little to be gained by trying to frame the debate as one about who really perceives the true meaning of “the principle of religious freedom.” Consequently, although I might assert that those who disagree with me are “wrong” or that their arguments are “weak” or “implausible,” I would have no justification at all for saying, for example, that they have failed to understand the very principle that they purport to respect or that in professing to respect that principle they are being thoughtless or hypocritical.
Likewise, a more pluralistic approach to religious freedom would not prevent us from discerning in Western history a kind of progress toward the achievement of more complete religious freedom. This characterization might simply mean that current notions of religious freedom allow greater scope for diverse religious conduct and belief. It might also mean that we think the reasons supporting current opinions are more plausible than those invoked in behalf of earlier views. Conversely, it is unnecessary and potentially misleading to say that “the principle” of religious freedom was somehow implicit in but inadequately expressed by earlier positions, or that Western history reflects an ongoing, ever more perfect realization of the principle of religious freedom.