How can people who disagree about what it means to be a human being agree about what it means to be a citizen? The question Franklin I. Gamwell's The Meaning of Religious Freedom seeks to answer concerns the proper relationship between religious pluralism and modern politics. The question may be put either from a religious perspective (How can people who have incompatible religious convictions possibly coexist as members of the same political society?) or from a political perspective (In a pluralistic society, what constitutional principle can allow people of different religious convictions to live together in harmony?).

Insofar as the beliefs of different religions involve discrepant “comprehensive convictions” regarding the meaning of authentic human life, including, therefore, authentic forms of political association, state approval of religious pluralism would seem to be, as Gamwell rightly observes, “a prescription for political instability or civil war.” (8) The principle of religious freedom—meaning thereby the political principle “in accord with which a plurality of legitimate religions internal to a political community is consistent with its unity” (10)—is, therefore, “all implications taken into account, the only constitutional principle.” (162) What, then, is the proper understanding of religious freedom?

A significant body of legal academic writing produced in recent years has argued that one of the primary purposes of the First Amendment's Religion Clauses was to protect freedom of conscience. But in the two decades since the Supreme Court's decision in Employment Division v. Smith, a number of commentators have suggested that freedom of conscience has lost its place as the focus of Free Exercise and Establishment Clause jurisprudence. Indeed, some have gone so far as to argue that protection for freedom of conscience has disappeared from the Free Exercise Clause almost entirely, leaving conduct that is motivated by a religious conscience without special constitutional protection. To be sure, some protection for freedom of conscience remains—but its constitutional source is often to be found outside of the Religion Clauses and its concern is often with non-religious activity.

This evolution of doctrine has been extensively criticized by scholars of the Religion Clauses, many of whom view these developments as departures from original intent and from long-settled constitutional practice. Michael McConnell, Martha Nussbaum, and others have also advanced normative critiques, arguing that religious conscience is in many ways distinctive and merits distinctive constitutional solicitude under the Free Exercise Clause. At the same time, the Supreme Court's rejection of special privileges for religious claims of conscience has been welcomed by other scholars, some of whom have argued that preferential protection for religiously-motivated conduct is a form of unconstitutional discrimination. Two of the most prominent proponents of this position are Christopher Eisgruber and Lawrence Sager, who maintain that the Religion Clauses should be read to promote equal liberty rather than to provide special exemptions.

The language and ideas of “international human rights” have become seemingly ubiquitous in modern times. Indeed, within the United States, even many prominent evangelical Christian churches and leaders have sparingly started to use the language of human rights despite earlier misgivings. While there has been important academic discussion concerning the foundational role of Christian theology for the modern human rights regime, and literature discussing the acceptance of human rights within Catholic, mainline Protestant, and even Orthodox Christian circles, gaps remain in the literature concerning the relationship between general human rights norms, language, and culture and evangelical Christian theology.

This Article suggests that evangelical Christians have a greater connection to human rights than is often acknowledged (and greater than they often acknowledge themselves). But, it ultimately appears doubtful whether modern evangelical theology is amenable to a robust and deep understanding of human rights. Nonetheless, the recent rise in the number of evangelical non-governmental organizations and the attendant rise in awareness of human rights within evangelical discourse potentially serve as signposts that the uncomfortable dance of evangelicals and the human rights movement may become slightly less awkward over the coming years.

This study represents a snapshot of American public opinion as we approach the bicentennial of the Bill of Rights. It therefore provides an opportunity for reflecting on the importance of the First Amendment in public life, the state of current developments and strains surrounding it, and the challenge to political candidates. Interpreted in the wider national and international context, the survey offers grounds for both optimism and concern. Four themes are salient and worthy of reflection.

After 200 years the Constitutional guarantees of freedom of conscience and provisions for ordered liberty show tremendous resilience and practical relevance for American public life. The survey provides evidence of this resilience and relevance in terms of an easily taken-for-granted aspect of the tolerance noted throughout the findings. In many countries, particularly in the Third World, there is a clear link between strong religious commitments and weak political civility. In many other countries, particularly in the developed world, there is an equally clear link between weak religious commitments and strong political civility. But a pronounced and enduring feature of American society, due largely to the First Amendment, is its combination of relatively strong religious commitments and relatively strong political civility.

A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical than they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose your breath climbing, bizarre opening hours, a wing or two closed for restoration, and a few kindly people who will sometimes show you where the elevator or the back door is hidden.

It is the cultural range of the subject matter that makes the study of jurisprudence interesting. There are philosophies of law, some good, some bad, some indifferent, but philosophy does not exhaust the subject of jurisprudence, because major jurisprudential questions (for example, what is a corporation) are not philosophical. There are theologies of law also, but they do not exhaust the subject either. As Christopher St. Germain had a sixteenth century theologian point out to a law student, the law of God is not concerned with land titles. Granted, it would be possible to distribute land titles in such a way as to offend the law of God, but the point stands nevertheless. It would also be possible to build a theologically unacceptable house (say a firetrap), but that does not make architecture a branch of theology.

As a Jesuit priest whose ministry includes the teaching of constitutional law, I regularly struggle with the task of interpreting two foundational normative texts: the Bible and the U.S. Constitution. The Bible plays a central normative role in the life of the Church, while the Constitution provides a normative framework for American law and politics. These texts ground the ongoing lives of both the Church and the American political community. Both of these textually constituted communities face the challenge of appropriating for contemporary experience a normative text produced in a significantly different historical context. But can American constitutional lawyers learn anything from the ways in which the Bible has been interpreted within the life of the Church?

Jaroslav Pelikan, eminent historian of the Church's doctrinal tradition and Sterling Professor of History Emeritus at Yale, believes that those engaged in the enterprise of constitutional interpretation can indeed learn something from the history of biblical interpretation. Drawing on a life-long “study of the twenty centuries of interpreting Christian Scriptures,” Pelikan offers his new book, Interpreting the Bible and the Constitution, in the hope that it “may be of some help and illumination … to those who stand in the tradition of the two centuries of interpreting American Scripture.” (37)

As a lawyer, law teacher, dean, scholar, colleague and friend, you have lived what you have taught, that lawyering is a vocation most faithfully lived in friendship. A prodigious scholar, you have led us as a brilliant pioneer into our past, turning us again toward ethics as a way of life lived in reflection and discomfort, not a decision of the moment, and situating the good lawyer within her community of memory. You have told many of the old tales, making way for a return to story-telling as ethical conversation for law scholars. In your deceptively accessible writings, the daily tasks of the lawyer are honored and challenged within a rich texture of literature, religion and law.

Your life of professional service, proceeding from a major law firm to Dean of Notre Dame Law School to clinical teacher, bespeaks the courage and humility with which you explore the religiously committed lawyer's vocation. Your affirming presence as a listening, generous, humorous and insightful friend to those whom you love and those whom you hardly know, has brought strength to the lives of many others. We honor your willingness to speak of God in public places, to help us meditate on the work of the lawyer, and to affirm our halting efforts to live whole lives as faithfully religious and faithfully professional men and women.

The most dramatic development within the anti-apartheid movement in South Africa involves the growth of the black trade union movement. This movement's history (to be addressed later) goes back a number of years and had its first limited success during World War I.

The area of labor-management relationships in South Africa, particularly the development of trade unions, is one area in which the South African government can assert that it has made concessions of substance, albeit within carefully defined constraints. These concessions do not involve what is characterized as the so-called “petty” apartheid policies. They involve, instead, new legislation enacted in a series of statutes beginning in 1979. However, the concessions were soon constrained and limited because the black trade unions were and are operating in South Africa in the context of a number of policies and laws which do not fall under the rubric of labor law, but which nevertheless have a substantial impact upon the ability of the black trade union movement to function effectively. (Indeed, it seems apparent that the government is now curtailing union activities in political and other spheres as of this writing in February 1988.)

Natural law has made a comeback in legal philosophy. The revival of natural law thinking in the legal academy began about thirty years ago and has managed to gain a seat at the table in current jurisprudential discussions. Defining natural law, Brian Bix declares that it “claims that there are fundamental and evaluative connections between the universe, human nature, and morality.” These connections need not have a Christian or even a theistic foundation. A belief in moral realism, that is, the propositions that “(1) there is an objective reality, (2) human beings can know something about it, and (3) there are some things that everyone can, and some things that everyone ought to, do in response to what they know,” ties together theistic and non-theistic versions of natural law. Yet many prominent contemporary natural law theorists—J. Budziszewski, John Finnis, Robert George, and Russell Hittinger —are Roman Catholic. Despite the fact that Finnis and George develop their natural law arguments without reference to any metaphysical states of affairs or transcendent truth claims, natural law continues to be associated with Thomas Aquinas and the subsequent scholastic tradition. Thus, even standards that Finnis and George derive from the internal rationality of law strike some as disguised theology.

In 1920 James Brown Scott, the celebrated teacher, international law scholar and practitioner, published his pioneering book The United States of America: A Study in International Organization. His underlying thesis was that the historic evolution of the United States provided a model for the development of international organizations in which local sovereignty and autonomy are preserved but “a more perfect union” is sought. Scott made the distinction that the delegates to the Federal Convention of 1787 did not merge the States in a union, “but formed a union of States.” One of Scott's goals was to provide the delegates who would be convening at The Hague the imagination to consider a “Society of Nations” as a frame of reference that could guide their post-Great War deliberations. As he said: