Steven D. Smith - Böcker

Examining the perennial claim that constitutional law somehow embodies a commitment to governance by "reason," this book shows how the lofty intentions of yesterday's framers and today's scholars have culminated in rampant confusion and elaborate sophistry. The Constitution and the Pride of Reason gives readers a provocative overview of the noble aspirations and tragic failures of American constitutionalism, offering iconoclastic assessments of constitutionalists ranging from Madison and Jefferson to Dworkin and Bork."This is not a book for specialists in constitutional doctrine. It draws upon political and moral philosophy, history, constitutional theory, and political science to sustain a thesis which should interest all thinking Americans. It is also refreshingly well-written, very clear, and precise, often witty."--Gerald V. Bradley, University of Notre Dame

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 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.

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."

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."

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.

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.”

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 D. 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.

Questions of religious freedom continue to excite passionate public debate. Proposals involving school prayer and the posting of the Ten Commandments in schools and courtrooms perennially spur controversy. But there is also a sense that the prevailing discourse is exhausted, that no one seems to know how to think about religious freedom in a way that moves beyond our stale, counterproductive thinking on this issue.In Getting over Equality, Steven D. Smith, one of the most important voices now writing about religious liberty, provocatively contends that we must get over our presumption mistakenly believed to be rooted in the Constitution that all religions are equally true and virtuous and "authentically American." Smith puts forth an alternative view, that the courts should promote an ideal of tolerance rather than equality and neutrality. Examining such controversial examples as the animal sacrifice case, the peyote case, and the problem of aid to parochial schools, Smith delineates a way for us to tolerate and respect contrary creeds without sacrificing or diluting our own beliefs and without pretending to believe in a spurious "equality" among the variety of diverse faiths.

A fundamental critique of American law and legal thought, Against the Law consists of a series of essays written from three different perspectives that coalesce into a deep criticism of contemporary legal culture. Paul F. Campos, Pierre Schlag, and Steven D. Smith challenge the conventional representations of the legal system that are articulated and defended by American legal scholars. Unorthodox, irreverent, and provocative, Against the Law demonstrates that for many in the legal community, law has become a kind of substitute religion-an essentially idolatrous practice composed of systematic self-misrepresentation and self-deception.Linked by a persistent inquiry into the nature and identity of “the law,” these essays are informed by the conviction that the conventional representations of law, both in law schools and the courts, cannot be taken at face value-that the law, as commonly conceived, makes no sense. The authors argue that the relentlessly normative prescriptions of American legal thinkers are frequently futile and, indeed, often pernicious. They also argue that the failure to recognize the role that authorship must play in the production of legal thought plagues both the teaching and the practice of American law. Ranging from the institutional to the psychological and metaphysical deficiencies of the American legal system, the depth of criticism offered by Against the Law is unprecedented. In a departure from the nearly universal legitimating and reformist tendencies of American legal thought, this book will be of interest not only to the legal academics under attack in the book, but also to sociologists, historians, and social theorists. More particularly, it will engage all the American lawyers who suspect that there is something very wrong with the nature and direction of their profession, law students who anticipate becoming part of that profession, and those readers concerned with the status of the American legal system.

The second revised edition of this companion to the ponds and lakes of New Hampshire's White mountains celebrates their rich diversity: You can hike, ski, snowshoe, swim, paddle a canoe, watch birds or moose, or simply linger by a sunny shore. Expanded fishing information tells you where to cast a line for small-mouth bass, perch, native speckled trout, and more. The ponds that Smith describes range from a tree-lined roadside beauty perfect for a spontaneous swim to an isolated mountain tarn reached only after a day of serious hiking or snowshoeing. He weaves into the text anecdotes and quotations culled from old guidebooks and local history. Additional information includes a bibliography and the author's lists of everything from the best ponds for a family hike to the best rocks to sit on. Each of the 68 descriptions include: * A trail description * Directions to road or trailhead access, with a topographical map * A summary of hiking facts, pond and lake statistics, activities, and fishing opportunities * Descriptions of nearby overlooks that offer bird's-eye views * Notes on visiting in winter

The Roman sophist Claudius Aelianus, born in Praeneste in the late second century CE, spent his career cultivating a Greek literary persona. Aelian was a highly regarded writer during his own lifetime, and his literary compilations would be influential for a thousand years and more in the Roman world. This book argues that the De natura animalium, a miscellaneous treasury of animal lore and Aelian's greatest work, is a sophisticated literary critique of Severan Rome. Aelian's fascination with animals reflects the cultural issues of his day: philosophy, religion, the exoticism of Egypt and India, sex, gender, and imperial politics. This study also considers how Aelian's interests in the De natura animalium are echoed in his other works, the Rustic Letters and the Varia Historia. Himself a prominent figure of mainstream Roman Hellenism, Aelian refined his literary aesthetic to produce a reading of nature that is both moral and provocative.

The Roman sophist Claudius Aelianus, born in Praeneste in the late second century CE, spent his career cultivating a Greek literary persona. Aelian was a highly regarded writer during his own lifetime, and his literary compilations would be influential for a thousand years and more in the Roman world. This book argues that the De natura animalium, a miscellaneous treasury of animal lore and Aelian's greatest work, is a sophisticated literary critique of Severan Rome. Aelian's fascination with animals reflects the cultural issues of his day: philosophy, religion, the exoticism of Egypt and India, sex, gender, and imperial politics. This study also considers how Aelian's interests in the De natura animalium are echoed in his other works, the Rustic Letters and the Varia Historia. Himself a prominent figure of mainstream Roman Hellenism, Aelian refined his literary aesthetic to produce a reading of nature that is both moral and provocative.

Sexy, scintillating, and sometimes scandalous, Greek epigrams from the age of the Emperor Justinian commemorate the survival of the sensual in a world transformed by Christianity. Around 567 CE, the poet and historian Agathias of Myrina published his Cycle, an anthology of epigrams by contemporary poets who wrote about what mattered to elite men in sixth-century Constantinople: harlots and dancing girls, chariot races in the hippodrome, and the luxuries of the Roman bath. But amid this banquet of worldly delights, ascetic Christianity - pervasive in early Byzantine thought - made sensual pleasure both more complicated and more compelling. In this book, Steven D. Smith explores how this miniature classical genre gave expression to lurid fantasies of domination and submission, constraint and release, and the relationship between masculine and feminine. The volume will appeal to literary scholars and historians interested in Greek poetry, Late Antiquity, Byzantine studies, Early Christianity, gender, and sexuality.

Sexy, scintillating, and sometimes scandalous, Greek epigrams from the age of the Emperor Justinian commemorate the survival of the sensual in a world transformed by Christianity. Around 567 CE, the poet and historian Agathias of Myrina published his Cycle, an anthology of epigrams by contemporary poets who wrote about what mattered to elite men in sixth-century Constantinople: harlots and dancing girls, chariot races in the hippodrome, and the luxuries of the Roman bath. But amid this banquet of worldly delights, ascetic Christianity - pervasive in early Byzantine thought - made sensual pleasure both more complicated and more compelling. In this book, Steven D. Smith explores how this miniature classical genre gave expression to lurid fantasies of domination and submission, constraint and release, and the relationship between masculine and feminine. The volume will appeal to literary scholars and historians interested in Greek poetry, Late Antiquity, Byzantine studies, Early Christianity, gender, and sexuality.

On May 9, 1781, American general Nathanael Greene and his Continental army were outside of British-held Camden, South Carolina. Greene was despondent and contemplating resigning his commission, believing he could not force the British out of the fortified village. His compatriot Francis Marion, standing before Fort Motte forty miles to the south, was also in the same mood, informing Greene that he was frustrated by the militia, and he was going to resign after the fort’s capture. The next day, Lord Francis Rawdon, commander of the Camden garrison and all British field forces in South Carolina, abandoned that backcountry village. Marion would capture Fort Motte two days later. In The Battles of Fort Watson and Fort Motte, 1781, the latest in the Small Battles Series, historian and archaeologist Steven D. Smith relates the history of four critical weeks from April 12 until May 12, 1781, in which the tide of the Southern Campaign of the Revolutionary War turned in favor of the Americans. The book focuses on General Francis Marion’s and Colonel Henry Lee’s capture of two key British forts, Fort Watson and Fort Motte, coordinating with Nathanael Greene in retaking the South Carolina backcountry. These posts defended the supply line between Charleston and the British-occupied villages of Camden and Ninety Six. Although there would be much more fighting to do, once the two forts were lost, the British had to abandon the backcountry or starve. The British would never again be on the strategic offensive and were confined to the Charleston environs until they abandoned the city in December 1782. The story of the capture of the forts is enhanced and enlightened by the findings of archaeological investigation at each site—and even mythology, such as Mrs. Motte providing the fire arrows used to burn her fortified house—which are seamlessly integrated into the account, providing a unique perspective on these important events during the Southern Campaign.

Francis Marion is certainly the stuff of which legends are made. His nickname “The Swamp Fox,” bestowed upon him by one of his fiercest enemies, captures his wily approach to battle. The embellishment of his exploits in Parson Weems’ early biography make separation of fact from fiction difficult, but certainly represents the awe, loyalty, and attraction he produced in those around him. His legacy is enshrined in the fact that more places in the United States have been named after him than any other soldier of the American Revolution, with the sole exception of George Washington. Even today’s U.S. Army Rangers include Marion as one of their formative heroes. Surely much about leadership can be learned from such an intriguing personality.  Leading like the Swamp Fox: The Leadership Lessons of Francis Marion unlocks those lessons. Divided into three parts, the book first presents the historical background and context necessary to appreciate Marion’s situation. The main body of the book then examines Marion’s leadership across eight categories, with a number of vignettes demonstrating Marion’s competency. The summary then captures some conclusions about how leadership impacted the American Revolution in the South CarolinaLowcountry. An appendix provides some information about how the reader might explore those physical reminders of Marion and his exploits that exist today. Readers interested in history or leadership, or both, will all find something for them in Leading like the Swamp Fox.

Is the United States Constitution the embodiment of certain principles? The four authors of this book for a variety of reasons, and with somewhat different emphases, believe the answer is no. Those who authored the Constitution no doubt all believed in liberty, equality, and, with caveats, republican self-government values, or if you will, principles. But they had different conceptions of those principles and what those principles entailed for constituting a government. Although the Constitution they created reflected, in some sense, their principles, the Constitution itself was a specific list of do’s and don’ts that its creators hoped would gain the allegiance of the newly independent and sovereign states. And, for somewhat different reasons, the authors of this book believe that was a good thing.

Is the United States Constitution the embodiment of certain principles? The four authors of this book for a variety of reasons, and with somewhat different emphases, believe the answer is no. Those who authored the Constitution no doubt all believed in liberty, equality, and, with caveats, republican self-government values, or if you will, principles. But they had different conceptions of those principles and what those principles entailed for constituting a government. Although the Constitution they created reflected, in some sense, their principles, the Constitution itself was a specific list of do’s and don’ts that its creators hoped would gain the allegiance of the newly independent and sovereign states. And, for somewhat different reasons, the authors of this book believe that was a good thing.

This volume offers different perspectives on judicial practice in the European and American contexts, both arguably characterized in the last decades by the emergence of novel normative and even policy arguments by judges. The central question deserving the attention of the contributors concerns the degree in which judicial exercises in practical reasoning may amount to forms of judicial usurpation of the legislative function by courts. Since different views as to the nature and scope of legal reasoning lead to different degrees of tolerance regarding what should be admissible to courts, that same nature and scope is thoroughly debated.The main disciplinary approach is that of general jurisprudence, but the contributions take stock of other disciplines in which judicial activism has been addressed, namely positive theories of judicial behavior. Accordingly, the book also explores the development of interdisciplinary dialogue about the theme.