In his 1995 Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom , Steven Smith challenges the notion that there is a single ideal of religious liberty and argues that any quest for such an ideal principle is doomed to failure. Religious freedom comes in various guises and forms, and it makes no sense to discuss the situation (as is done both popularly and in American law) in terms of a “for or against” dualism.

There’s the religious freedom of the Massachusetts Constitution of 1780, . . .

which declared that “no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most aggreeable to the dictates of his own conscience,” but also provided for tax funds to support the church and required attendance at worship services.

There’s the religious freedom of Cromwell, who said that he would not meddle with consciences, but was intolerant of “liberty to celebrate the mass.”

There’s even the ambiguous religious liberty of James Madison, who helped secure passage of Virginia’s Statute for Religious Freedom on the same day he introduced legislation to punish Sabbath breakers.

It won’t do to resolve these by referring to some Whiggish progress toward pure religious freedom, as if everyone before only provided “seeds” of religious freedom that we have brought to full fruition: “there is something troubling, and more than a little presumptuous, in a viewpoint that is forced to classify virtually everyone who came before us, as well as most of our contemporaries, as lacking in reflection, or weak-willed, or hypocritical.”

Smith argues that these appear as “contradictions” only because we assume an ideal principle of religious freedom that specific forms of religious freedom approximate. In fact, religious freedom is a plural and diverse reality.

This makes applying the First Amendment a challenging project. Smith imagines a Reconstructionist utopia in California, challenged of course on Constitutional grounds. To objections to the Reconstructionist requirement of church membership for state office, the Reconstructionists might respond: “there are many versions of religious freedom. We in California happen to favor the Oliver Cromwell version. And as long as we adhere to a version of religious freedom, we have not violated the Constitution.” Smith notes that judges and lawyers will the Cromwell version is incompatible with the Constitution. But that’s not straightforwardly evident: “How do we know which among the various versions of religious freedom is ‘the Constitution’s version’?”

Smith argues that there is no principle in the First Amendment. Opinion about church-state issues was divided in early America. Many held to the traditional views of Christendom, that the church should have public support; Baptists dissented, wanting religion to affect society without public support; and a few wanted to suppress the influence of religious entirely. But the Constitution avoided this principled disagreement by making a jurisdictional decision, reserving the religion question to the states. Thus, “If we ask . . . what principle or theory of religious liberty the framers and ratifiers of the religion clauses adopted, the most accurate answer is ‘None.’”