Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 7 of 7

Full-Text Articles in Law

The Hollowness Of The Harm Principle, Steven D. Smith Dec 2011

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any ...


The Pluralist Predicament: Contemporary Theorizing In The Law Of Religious Freedom, Steven Douglas Smith Dec 2011

The Pluralist Predicament: Contemporary Theorizing In The Law Of Religious Freedom, Steven Douglas Smith

Steven D. Smith

Religious pluralism is at once the cause of and a substantial impediment to theorizing about religious freedom. The purpose of theorizing in law is typically to impose order on an unruly collection of phenomena - of seemingly conflicting decisions, or doctrines, or legal arguments - and to do so by articulating and elaborating the foundational truths that govern the subject in question. In a condition of religious pluralism, however, theorists typically suppose that it is impermissible to appeal to contested religious beliefs. But these are the very beliefs that would provide the natural foundations for thinking about the proper relation between government ...


Interrogating Thomas More: The Conundrums Of Conscience, Steven D. Smith Dec 2011

Interrogating Thomas More: The Conundrums Of Conscience, Steven D. Smith

Steven D. Smith

No abstract provided.


Religion, Democracy, And Autonomy: A Political Parable, Steven D. Smith Dec 2011

Religion, Democracy, And Autonomy: A Political Parable, Steven D. Smith

Steven D. Smith

No abstract provided.


Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith Dec 2011

Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith

Steven D. Smith

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as ...


The Tenuous Case For Conscience, Steven D. Smith Dec 2011

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it ...


Believing Like A Lawyer, Steven D. Smith Dec 2011

Believing Like A Lawyer, Steven D. Smith

Steven D. Smith

No abstract provided.