In a Public Discourse essay today, Princeton professor Robert P. George provides a devastating response to law professor James M. Oleske Jr.’s critical review of George’s book Conscience and Its Enemies. (Disclosure: Professor George is a member of the board of directors of the Ethics and Public Policy Center, the think tank I run.)
At the core of Oleske’s review is his claim that George once “rejected the type of presumptive [religious-]exemption rights he now treats as essential to protecting conscience” and that he doesn’t acknowledge, much less explain, the reasons for his supposed switch of position. The title and subtitle of Oleske’s review blare his thesis: “The Born-Again Champion of Conscience: Robert George, once a skeptic of religious-exemption rights, now demands their unprecedented expansion.”
But as George explains in detail (emphasis in original):
[T]his 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.
George sums up his response to Oleske’s “intellectually dishonest hit piece” (emphasis in original):
[Oleske’s] argument trips on a confusion of moral and constitutional rights so elementary—at least for anyone who has been to law school, and especially for someone who teaches at one—that one labors to credit it as an honest mistake.
Of course, many liberals think judges should apply the Constitution in line with the community’s (or the best, or some combination of the community’s and the best) moral judgments—that there shouldn’t be a real gap between, say, our political-moral view of a just religious-liberty regime, and the regime we’re willing to impose in applying the First Amendment. Maybe Oleske has so internalized this view that he can’t help projecting it onto me.
Or perhaps he knows that I distinguish political morality from the Constitution as originally understood, but has his own political motives for obscuring this fact.… I suppose it’s fair to note here that Oleske and I have deep political differences. He is a liberal Democrat who worked for Tom Daschle when he was Senate Majority Leader, and later for President Obama. I’m on the other team. Perhaps this also explains why Oleske began his review with a string of quotations in which I criticize social liberalism, presenting them as if they made for a stand-alone indictment of my work. (He is writing for our fellow academics, most of whom he can count on to share his views rather than mine, especially on social issues.) But instead of challenging my positions and taking on my arguments, he opted for the old debater’s trick.
I’ll further note that the Harvard Law Review (on which I served decades ago) published Oleske’s review (in its online-only Forum). I don’t have high expectations for the law review, but I’m very surprised that Oleske’s smear survived the editorial process.