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Conference Proceeding


The Uses of Empiricism and the Uses of Fanaticism, 69 Oregon Law Review 471 (1990)


I would like to begin by thanking Dean Holland and the law school for inviting me to visit this lovely part of America to deliver the Inaugural Development Fund Lectures. Over the next two nights, I will be talking about the relationship between the liberal theory of constitutional law and ways of reasoning about moral and empirical propositions. In tonight's lecture, which I call The Uses of Empiricism and the Uses of Fanaticism, I will discuss the frequent preference of judges in constitutional cases to deal with empirical questions rather than moral ones and, when possible, to turn the latter into the former. Tomorrow evening I will analyze the particular difficulties that are posed when a constitutional law built on a preference for empirical questions confronts the very different epistemology that often flows from religious devotion.

My subject matter, I think, is especially appropriate for a lecture here in Oregon, because one of the cases that I plan to assess in tomorrow night's lecture originated in this state. I have in mind Employment Division v. Smith, a case no doubt familiar to many of you. In Smith, two former employees of the State of Oregon insist that the first amendment's free exercise clause protects their right to use peyote, a controlled substance, as part of a religious ritual. The issues raised by the Smith case are fascinating and intricate, but they are, as I say, for tomorrow's lecture.

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