The odd title I chose for this article may betray a feeling of defensiveness about the Charter. “What's right with the Charter” might imply that much about it isn't right. “What's wrong with the Charter” would surely imply that it's totally bad. My title is meant to point to criticisms which have been leveled against the Charter and to say that, whatever its faults may be, those are not the things which are wrong with it. My title leaves the implication that the Charter isn't perfect. It is not. I thought it might be useful, therefore, to take up the ill-founded attacks on the Charter which caused some very good people to decline to sign it.

In order both to appreciate the great quality of the Charter and to see its limitations, it is important to understand that because of the religious and philosophic diversity of its drafters, it could only go so far in achieving agreement on issues of religious liberty. It did not even attempt to explore certain finite controversies such as the Adolescent Pregnancy Act, protection of religious freedom in the public schools, government aid to parents of religious school children, the “equal access” issue, religious tax exemption, or refusal of the Amish to use state-prescribed slow-moving vehicle signs. Second, it contains, in places, language that some would prefer to see altered or omitted, or there are omissions where some would like to supply text.

I came across this project quite by accident. One day while I was reading Roberto Unger's Knowledge and Politics, I was struck with certain parallels between his thoughts and those of several Latin American liberation theologians such as Gustavo Gutiérrez, Jon Sobrino, S.J., and Juan Luis Segundo, S.J. The more I thought about the parallels, the more I chided myself, “This cannot be; what could a Harvard law professor have in common with liberation theologians?” But the more I read and reflected, the more I saw connections upon which I hope to elaborate in this article.

Other scholars have made connections between this Harvard law professor and several notable Roman Catholic priests who investigate and write about a theology which can liberate the millions of poor in Central and South America. Recently, for example, Paul Sigmund, a political science professor at Princeton, completed an investigation of liberation theology in which he identifies “a movement away from Marxist reductionism to communitarian participatory radicalism in the development of liberation theology over the last twenty years.” In urging the cultivation of a dialogue between communitarian theologians and thinkers from liberal (and Christian democratic) political institutions, Sigmund suggests that this discussion might also include ” ‘communitarian’ critics of Anglo-American liberalism, some of whose views resemble … liberationists.” Sigmund includes Roberto Unger in this group since he, along with Alasdair Maclntyre and Michael Walzer, criticizes classical arid contemporary liberals for their absence of a shared conception of the good, their unrealistic view of the person, and their effort to derive ideas of community from an artificial contract that bears no relationship to actual experience.

“Reformation denial” has become the new fashion among Western historians today. A generation ago, the sixteenth century Protestant Reformation was almost universally regarded as a formative era in the development of Western ideas and institutions. Today, it is regularly described as an historians' fiction and historical failure. Martin Luther, John Calvin, Thomas Cranmer, and other sixteenth century figures certainly called for reforms of all sorts, recent interpretations allow. But they inspired no real reformation. Their ideas had little impact on the beliefs and behavior of common people. Their policies perpetuated elitism and chauvinism more than they cultivated equality and liberty. Their reforms tended to obstruct nascent movements for democracy and market economy and to inspire new excesses in the patriarchies of family, church, and state.

Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.

A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.

In March, 2011, after five years of working its way through various levels of national and European courts, the Grand Chamber of the European Court of Human Rights decided that a crucifix hanging at the front of a classroom did not violate the right to religious freedom under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Specifically, Ms. Soile Lautsi had complained that the presence of the crucifix violated her and her children's right to religious freedom and that its presence amounted to an enforced religious regime. The Grand Chamber, reversing the lower Chamber's decision, held that while admittedly a religious symbol, the crucifix also represented the cultural heritage of Italians.

Southern proslavery writers recognized that the powerful imagery employed by abolitionist writers such as Harriet Beecher Stowe was among the abolitionists' most potent weapons in fighting slavery. Southern reviewers of Stowe's 1852 novel Uncle Tom's Cabin criticized Stowe most frequently for mischaracterizing the harshness of slavery. William Gilmore Simms, who published his novel Woodcraft as a proslavery answer to Stowe in 1854, thought her novel was a gross misrepresentation of the South:

There is a work of fiction, recently published by Mrs. Stowe, which is just now the rage with the abolitionists; the great error of which, throughout, consists in the accumulation of all the instances that can be found of cruelty or crime among the slaveholders. … She shows us a planter of Louisiana, as one of the most heartless, bloody, brutal, gross, loathsome and ignorant wretches under the sun. … [B]ut in doing so, she herself isolates him. She shows that he resides in a remote, and scarcely inaccessible swamp region, where his conduct comes under no human cognizance. How is society answerable for his offenses? How does he represent the condition and character of the slaveholder?

In late 1983, the Columbus School of Law of The Catholic University of America was awarded a three-year program development grant by the Henry Luce Foundation, Inc. for the purpose of developing an interdisciplinary program in law and religion. Since its inception, the purpose of the program has been to encourage the study of law and religion through creative use of the resources of The Catholic University of America to bring together scholars and legal practitioners having an interest in law and religion to collaborate on research, scholarship and education programs.

To that end, the Columbus School of Law seeks to serve as a catalyst in developing proposals for funded research and as a clearinghouse for information and ideas on which interdisciplinary research projects can be based. The goal of the program is to draw together the resources and expertise of several disciplines and to focus them on issues of practical or theoretical importance in the development of law or legal policy relating to religion, religious institutions, public morality and ethics.

Including the symposium which appears in the pages which follow, the project has sponsored presentations dealing with religion and politics (October, 1984), trends in separation of church and state (February, 1985), as well as co-sponsoring the publication of Peace in a Nuclear Age: The Bishops' Pastoral Letter in Perspective (C. Reid ed. 1986).

On February 10, 1947, the United States Supreme Court handed down Everson v. Board of Education of Ewing Township. For scholars of the First Amendment, Everson marks the beginning of the Supreme Court's modern era with respect to church-state relations. It is easy enough to state the reason for the decision's prominence, for it was in Everson where the Establishment Clause was first “incorporated” through the Fourteenth Amendment and made applicable to the actions of all state and local governments. But just what did it mean to take the restraints on federal power that comprise the principle of no-establishment and to make them limits on the governments of the several states, as well as on the thousands of municipalities, counties, and school districts that dot the land? In Part II of these remarks, I will focus on what has occurred downstream of Everson over these event-filled sixty years. As the reader will see, I am of the belief that Everson's new deal has resulted in more good than harm for religious freedom. Still the record is mixed, as it is with most major developments. However, before going there, in Part I of this extended essay, I look back in time to recapture just what was in the bundle of restraints that all nine of the Justices in Everson said they were bringing forward via the Fourteenth Amendment and making newly binding on the many unsuspecting state and local officials.

Sister Lewis sits
pedaling her rusty sewing machine
in her dark and tiny hut
in the hills of Jamaica.
Only the thinnest sliver of light
filters through the one paneless window.
Sister Lewis is making children's dresses
for the wealthy.
From early morning till the last light slips
behind the hills she sews
back hunched eyes straining
fingers flying feet pedaling.
She is surrounded in the dark and dank by
piles of colorful cloth
the pastels, the lacy frills with which
we happily dress our little white girls.
She sews well.