I doubt that most list members are very engaged in this tussle between Jim Oleske and Robby George. George and his friends certainly seem very engaged, though -- one might say they are more than a tad defensive in their responses to Jim Oleske's rigorously argued (I repeat) review of George's book. As I see it, the matter comes down to this -- George (unlike Michael Paulsen) was a big fan of Emp Div. v. Smith. And George did call for practice specific exemptions, when justified, by legislatures. But, to the best of my knowledge, George (unlike Paulsen) never defended or championed RFRA until his conservative Christian allies found comfort from it. George did not call for RFRA's enactment back in 1992; he did not cheer when RFRA became law in 1993; he did not lament City of Boerne in 1997; and he did not say "hurray for RFRA" in 2006 when a unanimous Supreme Court upheld the RFRA rights of UDV members to use hoasca tea in their sacraments. And it's not surprising that George did not celebrate any of this -- the distinction he makes between free exercise adjudication and RFRA adjudication will not bear nearly the weight he now wants to put on it. Yes, we all know that RFRA is a statute, subject to Congressional control. But we also know that RFRA is effectively un-repealable; that Congress has never revised a RFRA outcome; and most basically, that RFRA asks judges to perform the precise tasks that Scalia asserted in Smith were outside the competence of judges. No one who embraced Scalia's description of limits on the judicial role could be a fan of RFRA, unless perhaps it turned out that RFRA helped his friends. I understand that people can change their minds when their interests are implicated, but a little humility (not accusations of "smear") seems in order.
On Tue, Feb 17, 2015 at 10:17 AM, Ryan T. Anderson < ryantimothyander...@gmail.com> wrote: > One additional note on this. Mike Paulsen reports the following: > http://www.nationalreview.com/bench-memos/398692/friends-and-enemies-conscience-and-its-enemies-michael-stokes-paulsen > > > As it happens, last spring *I* had been invited by the *Harvard Law > Review Forum *to review *Conscience and Its Enemies*. ... In a somewhat > surprising and perplexing move, the editors of the *Harvard Law Review > Forum*, perhaps noticing that my draft was in the main *supportive *of > George’s positions on many points — and harshly critical specifically of a > former president of the *Harvard Law* *Review* (and current president of > the United States) — informed me that they would be soliciting a competing, > rebuttal book review, to be published in the same on-line issue, > side-by-side with mine. > > This struck me as more than a little bit odd. I had never heard of such an > arrangement before, in an academic journal — a solicited book review being > held up because, seemingly, the perhaps-surprised editors wanted to > mitigate its perspective by soliciting a countering book review. The move > struck me as blatantly (if not exactly shockingly) ideological. It is hard > to imagine a similar thing happening in the case of a solicited review of a > book written by a prominent liberal legal scholar that happened to be > generally positive. > > Ultimately, I withdrew, in part because of the crunch of time and in part > because of distaste over the transparent balancing-rebuttal arrangement. I > was ambivalent about playing along with such a game, and decided that I > would rather publish my own review, separately, in due course, somewhere > else. > > This may have been a mistake on my part. I was surprised to see that the > *Forum *went ahead and published a review essay of George’s book, written > by the person whom I understand was recruited to counter my own review. It > is not a particularly good review, relying more on political innuendo and *ad > hominem *– and on a basic mischaracterization of George’s position — than > on reasoned engagement of George’s actual *arguments *and actual views. > George’s position is wrong, Professor Oleske asserts > <http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/>, > because it is the argument of a conservative religious Catholic and because > (Oleske maintains, unpersuasively) it is not consistent with some of > George’s writings twenty-odd years ago. Oleske maintains that George’s > defense of rights of conscience must have been motivated by today’s > controversies over conscience and by George’s substantive views on those > controversies (like abortion and same-sex marriage), not by principle. > > Oleske’s argument suffers from weaknesses in both its supposed factual > predicate and in its analytic structure. The factual-predicate problem is > that Oleske seemingly willfully misrepresents George’s positions. George > aggressively defends rights of religious conscience as a matter of > political principle and sound democratic policy, but does not believe that > the Free Exercise Clause *requires* such results as a *judicial*rule. (I > disagree with George on this last point of specific constitutional > interpretation, but that is beside the point here; reasonable people can > defend expansive views of the political and natural right to freedom of > religious conscience but still deny that the Free Exercise Clause vests > judicial actors with authority to grant religious exemptions from neutral, > generally applicable laws.) > > Oleske simply conflates the two distinct propositions, disregarding a > basic distinction by selective quotation. Thus, Oleske misrepresents George > as having changed his position over time and with changed issues. No: > George simply distinguishes between *what institutions* — political > actors or courts — should make the needed accommodations of religious > conscience. > > The analytic-structure problem is obvious. Even were it the case that > George had altered his position over the course of 25 years (which would > not be a shocking thing to do, even if true), that would be no argument > that George’s present position is *wrong*; it would only establish that > that position is *different*. > > This is not the place to engage at length the shortcomings of Oleske’s > review. Professor George has already taken care of the business himself, in > his characteristically honest, fair, witty, and simultaneously devastating > rejoinder > <http://www.thepublicdiscourse.com/2015/02/14430/?utm_source=The+Witherspoon+Institute&utm_campaign=78a49fc0d0-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_15ce6af37b-78a49fc0d0-84099261> > . > > > On Wed, Feb 11, 2015 at 12:48 PM, Ryan T. Anderson < > ryantimothyander...@gmail.com> wrote: > >> Thanks for calling our attention to this review. The list might find >> George's response worth reading. Here's the opening: >> http://www.thepublicdiscourse.com/2015/02/14430/ >> >> The Oldest Trick in the Book Reviewer’s Book: On Misreading *Conscience >> and Its Enemies* >> *by* Robert P. George >> <http://www.thepublicdiscourse.com/author/rgeorge/> >> >> February 11th, 2015 >> >> >> James M. Oleske’s “review” of my new book is no review at all. It’s an >> intellectually dishonest hit piece. >> >> The *ad hominem* attack is the oldest trick in the debater’s manual. >> When you can’t—or for whatever reason won’t—engage your opponent’s actual >> arguments, you try to discredit him personally. Perhaps you mock his >> accent, or point out that his pants are too short or that his socks don’t >> match. Or you try to smear him as a shady character or a hypocrite. Or you >> try to show that whatever he is saying, right or wrong, is >> ill-motivated—perhaps a matter of sheer political expediency. The shrewdest >> way to buttress an argument *ad hominem* is to create an appearance of >> engaging an opponent’s arguments while so distorting his view that a >> caricature takes the place of the original. >> >> Lewis and Clark University law professor James Oleske deploys the last of >> these stratagems in a review of my book >> <http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/> >> *Conscience and Its Enemies: Confronting the Dogmas of Liberal >> Secularism*. He suggests that I have quietly, and all too conveniently, >> changed my tune about whether we should provide conduct exemptions from >> general, neutral laws that burden religious activity. Professor Ira Lupu, >> whom Oleske thanks in a note for helping with the review, circulated a link >> to it, touting it as “rigorously argued.” But a review cannot be rigorously >> argued if it falsifies key positions of the author whose work is being >> reviewed. >> >> The falsifications in Oleske’s review don’t tarry in making an >> appearance—they begin in a summary headnote: “Robert George, once a skeptic >> of religious-exemption rights, now demands their unprecedented expansion.” >> This alleged switch, Oleske suggests, was unacknowledged and opportunistic: >> I supposedly started supporting conduct exemptions only when—and because—my >> fellow conservatives’ consciences were burdened by issues surrounding >> same-sex marriage and the implementation of the contraceptive mandate of >> the Affordable Care Act. >> >> But this little tale has the very considerable disadvantage of being >> demonstrably false. I made no switch. Oleske maintains the contrary >> illusion, across several pages of commentary on my work, only by >> conflating—egregiously and at every turn—the *Constitution *with *political >> morality*. I have always supported religious conduct exemptions as a >> matter of *good and just policy* while denying that the *Constitution’s >> Free Exercise Clause *requires or authorizes judges to mandate them. >> Oleske’s review ignores or overlooks this simple but key distinction in a >> remarkable series of omissions (sometimes of a single word) and tendentious >> descriptions of my work. >> read the rest here: http://www.thepublicdiscourse.com/2015/02/14430/ >> >> On Thu, Jan 22, 2015 at 2:40 PM, Ira Lupu <icl...@law.gwu.edu> wrote: >> >>> I want to call the list's attention to Jim Oleske's rigorously argued, >>> just published review of Robert George, Conscience and Its Enemies: >>> Confronting the Dogmas of Liberal Secularism (2013). >>> The web link is here, >>> http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/, >>> and the print-friendly pdf is here: >>> http://cdn.harvardlawreview.org/wp-content/uploads/2015/01/vol_128_Oleske.pdf >>> >>> >>> -- >>> Ira C. Lupu >>> F. Elwood & Eleanor Davis Professor of Law, Emeritus >>> George Washington University Law School >>> 2000 H St., NW >>> Washington, DC 20052 >>> (202)994-7053 >>> Co-author (with Professor Robert Tuttle) of "Secular Government, >>> Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) >>> My SSRN papers are here: >>> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg >>> >>> _______________________________________________ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as >>> private. Anyone can subscribe to the list and read messages that are >>> posted; people can read the Web archives; and list members can (rightly or >>> wrongly) forward the messages to others. >>> >> >> > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
