Re: Jim Oleske's new review of book by Robert George
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.
Re: Jim Oleske's new review of book by Robert George
Thanks much to Chip for initially bringing my piece to the attention of the list, and to Ryan for flagging George's response. I would urge anyone who read my review (ssrn.com/abstract=2554192) to also read Professor George's response (thepublicdiscourse.com/2015/02/14430/) in full. Professor George certainly pulls no punches (as you can see below, ad hominem and intellectual dishonest hit piece appear in the opening lines), and he argues at considerable length that -- contrary to my contention that he has changed his view on religious exemption rights -- he still believes Smith was correctly decided and that there is no constitutional right (as opposed to a moral right) to religious exemptions. For those who have a chance to read Professor George's response and are interested in my thoughts, here's what initially strikes me as most notable: (1) the response nowhere addresses Professor George's authorship of the Manhattan Declaration, which decried the restrictions on free exercise of religion imposed by case law, and which his co-author explicitly said was written because Smith stands the First Amendment on its head; (2) it conflates support for discretionary legislative exemptions with support for a right to exemptions; support for the former -- which Professor George has consistently shown -- is not the same as support for the latter -- which my piece contends he has not consistently shown; and (3) it assumes that one can routinely invoke Madison and the Constitution when framing his discussions of religious exemptions, but then claim to be making only a moral argument about exemptions so long as one does not use the precise phrase, the Constitution requires an exemption. I am confident that the vast majority of people who read George's book, his related essays and interviews, and the Manhattan Declaration would be left with the strong impression that George believes constitutional rights, not just moral rights, are at stake in this struggle. On a non-substantive note, I must confess amusement that, having written an entire book framed around calling his intellectual opponents enemies of conscience, Professor George begins his response by decrying *ad hominem * attacks. - Jim http://ssrn.com/author=357864 On Wed, Feb 11, 2015 at 9:48 AM, 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
Re: Interposition on Same Sex Marriage?
I am hardly one to hold a brief for Judge Moore, who is obviously ill-motivated in this (as in may other instances). But, as fr as I know, he has not (yet) suggested anything like interposition. Interposition consisted of one or both of two things: (i) state officials failing to conform their practices to the rulings of the Supreme Court in cases arising in other jurisdictions; and/or (ii) actually refusing to abide by court orders to desegregate. I don't believe Judge Moore and the probate judges who are following his directive are (yet) doing any such thing. They are merely refusing to conform their practices to the decision of a single district court judge, involving other plaintiffs and other defendants, where that district court *has not enjoined them *and where, in their view, the district court got the question wrong. The effort to hold one such probate judge in contempt for failing to grant licenses was rejected -- even by that same district court -- because that probate judge was not a party to the litigation in question. Of course, Moore and the judges must know by now that the jig is up and that the Supreme Court is very likely by June to declare that the 14th Amendment guarantees a right of SSM. When it does so, I expect all of the Alabama probate judges will start granting such licenses, even though they are not parties to the case before the Court. On Mon, Feb 9, 2015 at 8:51 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: Roy Moore, Alabama's Chief Justice, seems to have ordered something near interposition in response to federal court invalidation of the state's ban on same-sex marriage. The 1950's returning?? http://religionclause.blogspot.com/2015/02/interposition-ordered-by-alabama-chief.html ___ 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.
