Program transcript:
Grant Reeher: Welcome to the Campbell Conversations, I’m Grant Reeher. My guest today is the lawyer, law professor and writer Alan Dershowitz. He’s with me to discuss his new book, decades in the making, titled, “The Preventive State: The Challenge of Preventing Serious Harm while Preserving Essential Liberty”. Professor Dershowitz, welcome to the program and congratulations on this new book. It's your 56th, I believe?
Alan Dershowitz: It is, thank you so much. I've already written my 57th, so I'm on the way to hopefully to 60, that's my goal.
GR: All right, you're within shouting distance. So this is what I would call a big book, even though it's concise. And I wanted to start our conversation by quoting something from Supreme Court Justice Stephen Breyer's forward to the book, just to set the context so that our listeners will have a good understanding of what you're doing here. He says the book provides new ways of looking at an old problem, which is this: how without sacrificing too much or too many of the values that society seeks to protect, for example, individual liberty, can society prevent the occurrence of events, behaviors, activities that will harm components say members of the society? And indeed, this sounds to me like the problem that James Madison is wrestling with and his famous Federalist Paper Number Ten. So it's a question of giving government enough but not too much power and of giving it the right kinds of power in the right moments. So you begin your book with a discussion of prediction and prevention, and I wanted you to tell us about those concepts and how they structure your argument.
AD: Sure. Governments are always trying to anticipate the future. This goes back to the beginning of time. The Bible talks about how you anticipate violence by young children and prevent it. So we've always done that. The problem is we haven't had a jurisprudence or a framework for analyzing whether we're doing it correctly. It's the essence of human lawmaking that we will always make mistakes. In this case, we will make some mistakes by predicting things that will not happen or by failing to predict things that will happen, both are bad. Failing to predict what Nazi Germany did in the 1930’s cost 50 million lives. Over-predicting what Japanese-Americans might do in the 1940’s resulted in 110,000 Japanese-Americans being falsely confined in camps for things they would never have done. So we constantly make mistakes and the question is, do we error on the side of protecting liberty, do we are on the side of safety? These are hard questions and we have to address them.
GR: And it reminded me a bit of what I see often in the medical field about tests and screenings where you have false positives, false negatives and you're weighing those two things. Are you for all on that at all?
AD: Exactly right. Take, you know, for example, colon tests, you know, you can take your colon test and some doctors recommend them telling you there are a lot of false positives that you might be told you have colon cancer and then the second exam will show you don't. But if you fail to do it, then maybe you'll have colon cancer and you won't know about it. And so there are always the tradeoffs and the balances. I fight with my grandson all the time, my grandson is a cardiologist fellow at a major university, and he thinks I'm over medicalized and I think I'm under medicalized. So, you know, at age 86, I want to make sure it all goes right. But he is in favor of fewer tests and I'm in favor of more tests. He doesn't think, for example, old guys like me should have a PSI test of the kind that, PSA that President Biden didn't have and failed to pick up his cancer. I say, yeah, tell me false, I'm happy to live with that. And so, you know, these are reasonable disagreements. Now that involves cancer, but what about if it involves nuclear attacks? What if it involves terrorism? What if it involves keeping people in jail, denying them bail for something they didn't do? These are all very, very, very difficult questions.
GR: Yeah. And just those examples that you gave me, it reflects the variety of things that we might want to prevent that you take up in your book and is really quite striking. It runs the gamut from presidential assassinations to global environmental catastrophe. So what I wanted to do for a good chunk of our conversation here together was to take a few of these and have you tell us how your framework leads you to conclusions on them.
AD: Sure.
GR: And so I wanted to start actually with the presidential assassinations and you discuss attempts on the life of Andrew Jackson, you take that all the way through to Donald Trump. So how do we think about the balance there? What's the right place to strike?
AD: Well, here we have a situation where a presidential assassination is cataclysmic. It can change the world. Look, Lincoln's assassination changed the history of our country. We've had more attempted assassinations that almost any other Western democracy, starting with Andrew Jackson. And, you know, that was a failed attempt. Franklin Roosevelt, 100 years later was a failed attempt. Harry Truman was a failed attempt. They tried to kill Gerald Ford. But there have been too many successful attempts, you know, Garfield and obviously Kennedy and Kennedy's brother and the thankfully unsuccessful attempts on President Ford. How much power would you give the Secret Service? Certainly, they messed up a year ago when they failed to anticipate somebody going on the roof in firing range of Donald Trump. That was an easy one to the stop, but many others are far more difficult and would involve intrusions into the lives of people. We have are called red flag laws which take away guns from people, guns that are protected by the Second Amendment based on predictions that maybe they will misuse those guns. So these are decisions we make all the time and what we lack is the jurisprudential framework analyzing the cost of one kind of error versus the cost of another kind of error. And in my book, “The Preventive State”, I try very hard to suggest for the first time really in history, literally for the first time in history, a book that presents a jurisprudential framework for what we've been doing for thousands of years, making predictive decisions, locking people up, killing them, doing things that deprive people of freedom based on uncertain predictions.
GR: You're listening to the Campbell Conversations on WRVO Public Media. I'm Grant Reeher, and we're speaking with law professor and writer Alan Dershowitz, and we're discussing his new book. It's titled, “The Preventive State: The Challenge of Preventing Serious Harms while Preserving Essential Liberties”. So you talk about creating this jurisprudence framework and I wanted to push you a little bit on that and tease out what, so, I understand that this is you know, we're looking at estimating risks of bad things and then estimating the risks of bad things that might happen from trying to prevent those bad things, but how do we go about measuring this stuff? I mean, it seems to me that the devil is going to be in the details here. How do we measure the cost?
AD: Well, the question about crimes that have already been committed, we don't always get the right people. And so we have to ask ourselves, what if we make a mistake? What kind of mistakes do we prefer? And we've come up with this aphorism, better ten guilty go free than one innocent to be wrongly confined because we know life is probabilities. It's interesting, I had an interesting insight the other day. My wife and I were, believe it or not, in Monte Carlo. And so what do you do if you're in Monte Carlo, you gamble. And you know, I ended up losing $30 at the table. I found myself being a card counter. How was I card counter? When I saw them hand out a lot of, you know, a lot of face cards with pictures on them kings, jacks and the queens, I would say, oh my God, you know, there are fewer left in the deck let me bet this way. Life is card counting. We're constantly making decisions based on what we see happening around us. It's called, you know, Bayesian Analysis in mathematics. And so we're always making these probabilistic decisions. We're never completely certain about almost anything and we're always going to be making mistakes. And law is the science of how we assess our mistakes and where we balance mistakes of one kind versus mistakes of another kind. But we tend not to think of it in terms of probabilistic considerations and that's what I try to do. I used to teach a class at Harvard College and law school class on mathematics in the law probabilities in the law. And, you know, we introduced all kinds of mathematical formulas and conceptions into things like probable cause, proof beyond a reasonable doubt and other obviously probabilistic determinations.
GR: I wanted to ask you a question about a couple of the things that you write about where recent examples have been in the news. And one that struck me was that your discussion of harmful police interventions and you include police shootings in that. And it reminded me of the shooting of Breonna Taylor, the 26 year old African-American woman who was killed by police in Louisville. It was recently in the news due to the sentencing of one of the officers involved in the shooting. And so how do you go about weighing some kind of balance like that?
AD: Well, it's very hard. You know, it's the middle of the night, it's dark, people are shooting at you, you value your own life more than the life of somebody who might be a criminal. And you(‘re) going to err on the side of protecting yourself and your colleagues over protecting the lives of somebody who might be firing at you. And so the law has to make a decision as to how to treat it if it goes wrong. There's a leading Supreme Court decision on that, which was right in that decision. A young man robbed or burgled a house and he was running away and he was climbing a fence and he would have escaped had he climbed the fence, but he didn't have a gun and the police shot him in the back and killed him. And the Supreme Court said, no, that was in violation of the Fourth Amendment. It's better to allow some people to escape than to kill somebody who was not going to harm anybody else, even though he had committed a previous crime. So the court has struggled with that on an ad hoc basis without coming up with a complete jurisprudence for it. And, you know, we're at a stage in our development where maybe we're not ready for a complete, thorough final jurisprudence. But in my book, “The Preventive State”, I at least lay out what I think is the beginning of a jurisprudence and let's continue to have debates over time.
GR: Yeah, it reminds me, the way you just described that, it also reminds me of the breaking off of police chases and cars, yeah. When do you stop that and under what conditions…
AD: Yeah, and do you do more harm than good when you try to chase down a car and you're going 110 miles an hour and the risks to civilians and citizens. Look, the book, “The Preventive State” deals with the widest range of actions that governments take, ranging from, you know, inoculating people against communicable diseases to doing what the United States did in Iran a couple of weeks ago, a preventive bombing of nuclear sites. That's why this is the most important book I've written of my, you know, 58 books. But interestingly enough, the New York Times refuses to review it. They have never reviewed a single one of my book since I defended Donald Trump. They reviewed almost all of my books before that. But once I defended Donald Trump on constitutional grounds, I have been censored and canceled by the New York Times and by other institutions, which is why I'm so pleased to be able to be on your show and get directly to readers who can then buy the book directly from Amazon instead of having to go through the filter of the New York Times, which censors and decides which books it wants people to read. I'm on Chilmark in Massachusetts now on Martha's Vineyard and the Martha's Vineyard book Fair starts next week. They won't have my book because I defended Donald Trump before I defended Donald Trump, every one of my books, I was the most popular speaker at the book fair, but now they won't allow me to speak about my book. That's why I have to go directly to sources and directly to readers out there to urge them to read the book and not allow institutions that are against Donald Trump, by the way, I'm not a political supporter of Donald Trump, I'm a constitutional supporter, but I have to be able to get directly to the readers. So thank you for having me.
GR: Well, the book really is about other things than this. And so I'm kind of surprised to hear your stories about getting shut out of those. You’re listening to the Campbell Conversations on WRVO Public Media. I'm Grant Reeher and I'm talking with the lawyer, law professor and writer Alan Dershowitz. We've been discussing his new book, it's titled, “The Preventive State: The Challenge of Preventing Serious Harms while Preserving Essential Liberties”. So you mentioned before the break about getting shut out of certain venues here on this book. And that kind of leads directly into something I wanted to ask you about, which concerns the institution where you where you taught for so many years, Harvard. And so you also examine problems of offensive or dangerous speech. And again, that's been in the news recently as Harvard has argued its case against the Trump administration for cutting off its federal research funding. And it seems to me, I'm thinking about that through the lens of your book, you've got two different free speech claims that are running up against each other in that instance. I mean you’ve got, in a sense, you've got the concerns of Jewish students who are at Harvard, but then you've got Harvard's concern about telling the faculty what they're going to teach or are going to act or what they're going to do with their DEI program. So any insights there about how we go about balancing that and thinking about that one?
AD: Sure. The key is to have a single standard, not to have a different standard for Jewish students and for black students and gay students. If you can say things negatively about gays and blacks, then you can say it about Jews. But if you can't say negative things about certain groups, but you can say about others, that's a clear violation of the spirit of the first amendment. Look, Harvard has not done a particularly good job, particularly some of the schools, the divinity school, the public health school, the Carr program on human rights have all become very, very biased. The divinity school, worst of all, it not only tolerates hate speech against Jews, it actually teaches it. The dean of the divinity school at graduation compared Israel to Nazi Germany, and they gave the valedictorian speech to a man who was arrested and prosecuted for attacking Jewish students physically. So you know, there are limits to what universities should do. But for me, the greatest limit is the single standard. You have to have one standard for everybody, you can’t have double standards that invidiously discriminate against certain groups. But DEI and intersectionality, which are taught at places like Harvard say you should have a double standard. Intersectionality says there are two groups in the world, the oppressed and the oppressors and the oppressed have no rights, the oppressed have all the rights, the oppressed ones have no rights. So they justify a double standard, but universities can't do that. And we learned that lesson in the 50’s when the federal government did intrude against University of Mississippi, University of Alabama that were teaching white supremacy and segregation and academic freedom didn't prevent the university from saying no, that violates civil rights laws. And what's being done at some universities today violates civil rights laws. So an appropriate balance has to be struck.
GR: So I wanted to have you kind of zoom out from these specific examples and tell me whether there is, in your view, some kind of, I don't know, rules of thumb or some kind of hunches that we can follow when we're trying to actually weigh these things. Because, again, the devil is in the details in a lot of these. And so, do you have any sort of places where you start, you just gave me one what the single standard sort of that's a way to guide our thinking there. Are there are other ones that you’ve put forward?
AD: Yeah. The other is always err on the side of freedom against safety. You have to give weight to safety, but as Benjamin Franklin said, those who would give up essential freedoms for a little bit of safety deserve neither. And so we always err on the side of, we should always err on the side of freedom, we generally err on the side of safety. And then the other thing is we have to articulate everything, nothing should be done in secret. Transparency is the key to everything. Let me give you an example, in the book I talk about, would you ever use torture to prevent a mass terrorist attack, say, attack on New York City with a nuclear bomb that would kill 100,000 people? Would you ever use torture? And the answer, of course, is they would, but they would do it secretly. They would never expose it. And so in my book, I talk about maybe having to get a torture warrant, having to go to the chief justice and having to get approval of all three branches of Congress before you do it. I'm against torture, but it would be used if it could prevent mass casualty attacks. We already did use it following 9/11. 9/11 was a failure of prevention. And as a result of the failure of prevention, we overreacted and gave government too much power. The same thing was true, Pearl Harbor was a failure of prevention. And after that we overreacted and put 110,000 Americans of Japanese origin into camps. So one of the virtues of prevention is it stops us from overreacting if we fail to prevent.
GR: If you've just joined us, you're listening to the Campbell Conversations on WRVO Public Media. I'm Grant Reeher and my guest is the lawyer, Alan Dershowitz. So when I was looking at your writing and the chapter on global catastrophe or global warming, one of the things that struck me in thinking about how difficult that would be is that, and I think it, you know, affects all these categories is, oftentimes the very terms of the debate are subject to debate. We don't even agree on whether something is a problem and for whom it is a problem of what qualifies to think of it in certain ways. And so what do we do there when we can't even really, you know, you and I might weigh things differently, but we may not even be able to agree on what we're talking about in the first place. How do you get a shared language in your jurisprudence that way?
AD: Oh, you're absolutely right. There are people who don't believe in global warming, there are people who think that these are just natural phenomenon that have occurred over the last millennia. So it's hard to get a conversation like that. All I want to do, and in my chapter I say we have to, again, balance, you know, the extremists on both sides are wrong. We can't do everything in the world to prevent global warming if it causes massive unemployment in this country and if it raises prices to an extent that we can't afford. So we have to strike appropriate balances. And you’re right, it's very hard to do if we can't even agree if there is global warming, and so that's probably the most difficult chapter. There are other areas where we definitely can agree on the harms. The question is how much are we prepared to sacrifice in order to stop those harms? And there's a big difference between a single crime and a mass terrorist attack or between inoculation and preventing the spread of COVID. There, there was great disagreement also about the science. And all it was necessary to do is have a transparent debate and reasonable people could disagree. I'm not in favor of compelled vaccinations except in the most extreme cases. And in my book, I quote George Washington's letter to his troops in which he said, we might not lose the war to Great Britain, but we might lose it to smallpox if we don't get inoculated. But that's not a paradigm because presidents can't tell us what to do. They are commanders in chief of the army, they're not commanders in chief of the citizens.
GR: Well, I did want to ask you a question, you mentioned earlier about the fallout that you've had from some of your, you know, legal dealings regarding the president. I wanted to ask you about President Trump more generally. You know, many people see him as currently as a threat to democracy. They're quite worried about it, particularly this second administration, the one that we're in the middle of. What do you make of this concern? Are we in a constitutional crisis?
AD: We're not, we're in a constitutional conflict. President Trump has pushed the envelope further than any president since Franklin Delano Roosevelt. Now, I'm not old enough to remember Franklin Delano Roosevelt’s administration, but Republicans thought we were in a constitutional crisis then. He was expanding the power of the federal government dramatically, expanding the power of (the) executive branch of the government with administrative agencies and working with very brilliant lawyers to try to constrain Congress and constrain the courts. He wanted to pack the courts. People thought that was a constitutional crisis. We survived that, we'll survive this. We have the flexibility in our Constitution to resolve these issues. Now, this president, unlike two prior presidents, this president has never said that he would disregard the definitive ruling of the Supreme Court. Andrew Jackson did, and so did Abraham Lincoln and maybe Thomas Jefferson, there's a dispute about that. But we're not in a crisis, we're in a conflict. And so far, the framers of the Constitution get the best of it and gave us the mechanisms to be able to avoid turning the conflict into a crisis.
GR: You know, I want to squeeze in one last question. We've just got a couple of minutes left, but I wanted to say very briefly to that, I just got done teaching this summer course with high school students that are getting college credit. And I asked them that question, are we in a constitutional crisis? And the whole class said yes. The only no votes were myself and my graduate assistant teacher (laughter). So I don't know if there's a generational thing there about that, but I just, I think the guardrails are still holding up, but it is a source of concern.
AD: I think there is a generational dispute. People who are old enough to remember that we've been through this before. Segregation, Brown versus Board of Education, people thought of that as a constitutional crisis. Our Constitution is the longest enduring constitution in the history of humankind. And I think it will endure even longer and we’ll make sure that this conflict does not turn into a crisis, at least that's my great hope.
GR: So in about a minute left, I have to ask you this question, because you end on a very, with a very intriguing sort of post chapter where you write about the ancient rabbinic approach to prevention. And I wanted to hear what we can learn from that.
AD: Well, you know, the rabbis almost always ask the right questions and very frequently came up with the wrong answers because they had different values. But back during the rabbinic times and even in the Bible, we thought about prevention. The Bible talks about how you treat a recalcitrant child who may turn out to be a criminal. And the answer was terrible, stone him to death. No, no, don't stone him to death, teach him. So the Bible, the rabbis, the priests have always come up with brilliant questions, and we ought to take those questions very seriously. But with experience, we have learned that we have better answers. It's always a work in progress. And my book, “The Preventive State” is designed not to end conversation, but to start conversation and hopefully conversation through the generations. If there's one book for which I will be remembered, you know, over the next hundred years, I've written, you know, close to 60 of them, this is that book because it asks the most important questions.
GR: Well, I'm glad I had a chance to talk to you about it. That was Alan Dershowitz, and again, his new book is titled, “The Preventive State: The Challenge of Preventing Serious Harms while Preserving Essential Liberties”. It's an important book, a deep book, but it's also an interesting read. Professor Dershowitz, thanks again for making time to talk with me, I really enjoyed this.
AD: I enjoyed it, too. Thank you so much for having me on.
GR: You've been listening to the Campbell Conversations on WRVO Public Media, conversations and the public interest.
