Bench Memos

Friends and Enemies of Conscience and Its Enemies

Last week, Ed Whelan posted his observations concerning a personal-attack book review written by Professor James Oleske and published in the online Harvard Law Review Forum. The attack was directed at Princeton professor Robert P. George’s excellent and provocative recent book, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism.  

As it happens, last spring I had been invited by the Harvard Law Review Forum to review Conscience and Its Enemies. I was honored by the invitation. I had read the book and thought quite favorably of it. Robby George (who I have come to know personally — an important disclaimer) is a formidable intellect and debater. He is a cheerful, genial, collegial — but also fearlessly and relentlessly uncompromising –advocate for the positions he takes. And the positions he takes are often, in today’s society, controversial. George is well known for his unreserved and unashamed defense of traditional moral values, religious conviction and religious freedom, marriage as the union of man and woman as husband and wife, and the right to life of the unborn.

Professor George’s book — which I heartily commend — is a broad-ranging defense of natural law, moral reasoning, traditional values, and religious liberty. It is also a no-holds-barred attack on those who would assault these cherished ideals. The book is in part a collection of previously published essays on a wide variety of philosophical topics, contemporary controversies, and notable public figures (ranging from Harry Blackmun to G. E. M. Anscombe).

At first, I was apprehensive about reviewing a “collection” — such volumes can tend to be rather unfocused, the author laboring to squeeze disparate essays under a contrived umbrella theme. Not so with this book. George succeeds in shaping a variety of specific topics into an overall unity of vision and an important coherent theme: The book is about irreducible conflict between irreconcilable fundamental value choices. As its title suggests, the book focuses on the dual themes of conscience – what forms it, what values it should embrace, the relationship of conscience to true religious conviction — and, in George’s arresting choice of terms, its enemies – those who would seek to exterminate conscientious resistance (and especially religiously informed conscientious objection) to emerging secular-liberal norms, in the name of suppressing the legitimacy of any such opposition.

On abortion, on government health care contraception/abortion mandates, on same-sex marriage, many in the secular left — including many in positions of great power in the U.S. government today — seek not only to establish their position in law, but to extirpate any vestiges of dissent or resistance to such positions; to taint moral opposition as morally illegitimate (seeking to stigmatize it as “bigotry” or “animus”); and to deny any avenues for escape or exemption, on grounds of religious conscience, from emerging post-modern, post-religious, secular-left social and legal norms. Robert George is a voice of principled resistance, and unashamed opposition, to such forces of secular opposition to religious conscience in America today. Sometimes the secular forces seem overwhelming. No matter, to George. He is Captain Picard to secularism’s The Borg: Resistance is not futile. Conscience and Its Enemies is a salvo — an intellectually impressive one — fired against the orthodoxies of the predominantly left intellectual elite. 

Such a book is likely to — almost calculated to — call forth its own enemies among that elite. Who, after all, wants to be labeled an enemy of conscience? Predictably, the book is especially vexing to some because George teaches in an elite institution, holds elite degrees, and travels in elite circles. He is a “heretic in the temple” of contemporary left-liberalism.

Alas, I never completed my review for the Harvard Law Review Forum — a source of some guilt for me. (At least I have not yet completed it; I expect to revise it and publish it at a later date.)

I withdrew the review for two reasons. First, and most simply, I had become consumed with completing a book, co-authored with my son, to be published this May by Basic Books. (The book is entitled The Constitution: An Introduction, and I will be blogging about it in upcoming weeks. The book inspired Ed Whelan to invite me to join “Bench Memos” as an occasional contributor — an opportunity for which I thank Ed and will have more to say later.) Work on my own co-authored book delayed my work on the review of George’s book beyond the point at which I could reasonably keep asking for extensions.

But there was a further reason for my withdrawing my draft review — and that is the story I wish to tell here. 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, 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.

Rather, I relate these events for three reasons: First, as a brief “preview” of the book review I yet hope to write, praising Robert George’s worthy volume — and as an apology for its delay. Second, as a parable (of sorts) about the battle of ideas, and the (probable) ideological motives of (certain of) the Harvard Law Review’s editors — itself perhaps an illustration of the validity of Robert George’s core thesis in Conscience and Its Enemies. And third, as a parable (of sorts) about the demerits of withdrawing a book review in part because of editors’ efforts to counter it: Retreating from an undesired ideological fight rarely avoids the fight. It usually just cedes ground to the opposition. That last lesson of course may have implications beyond book reviews and on-line law journals — implications that extend to political, policy, and moral discourse more generally.

* * * * *

I have abstained from blogging for several years now. But now that my book is on the way to press (this week!), I am glad to take up Ed Whelan’s invitation to join Bench Memos.

— Michael Stokes Paulsen is Distinguished University Chair and Professor of Law at the University of St. Thomas.

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.

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