Alan Dershowitz: On His Magnum Opus, The Preventive State

Alan Dershowitz, the famous Harvard Law School professor who just turned 87, published what he considers his magnum opus earlier this year. His 57th book, The Preventive State, explores questions he has been grappling with since his 20s. Primarily, Professor Dershowitz seeks to provide a framework societies can use to assess how to reduce harm while also balancing the ensuing risks to liberty. He suggests that there is always a trade-off between liberty and security; however, thus far, legal scholars have paid far too little attention to questions in this vein. Peppered throughout the book are also interesting insights—for example, that tough cases make bad precedent–as well as that many popular understandings of the law ought to be reconsidered upon closer examination such as the famous thought experiment about "yelling fire in a crowded movie theater" (from the 1919 Supreme Court case Schenck v. United States).

"A lot of people think you can get a free lunch."

In this interview with Merion West editor-in-chief Erich J. Prince, Professor Dershowitz observes that this book, despite being likely his most important, has received comparatively little media attention, something he attributes to the fact that he was previously part of President Donald Trump's legal defense team.

And both in the book and in this interview, Professor Dershowitz uses real-world examples to illustrate the theory of preventing future harms, such as had the Allies struck Nazi Germany years before World War II became imminent, proactive strikes against Iran's nuclear program, or, more prosaically, bail decisions. Crucially, he maintains that both false positives and false negatives are unavoidable when it comes to the question of reducing harm.

He also discusses his interactions with both John Rawls and Robert Nozick when they were all colleagues at Harvard, as well as Rawls's reactions at the time to early drafts of this book.

Erich J. Prince’s questions are in bold, and this transcript was very lightly edited for clarity.

I read over your new book The Preventive State, and I enjoyed it. Toward the end of this book, you invoke the closing of your 2008 book Is There a Right to Remain Silent?, where you called for, “developing a jurisprudence for the emerging preventive state.” And, in The Preventive State, you write, “To date, this challenge has not been accepted by others.” Why not, do you think?

Because it’s too difficult. There’s no simple answer. It’s very complicated. There are always going to be trade-offs. We want to prevent horrible, preventable acts from occurring, but we also want to make sure we don’t make mistakes.

And so, in real life, you can’t prevent false negatives—that is, you can’t prevent things like 9/11 and October 7th—without also having some false positives, without also arresting, detaining, even killing innocent people in order to prevent the killing of even more innocent people.

In your book, you present a user-friendly, diagrammable framework for evaluating preventive actions—actions that could deprive one of life or liberty. They could take various forms: a proactive military strike, whether to assign bail, or torturing a suspected terrorist.

And then there are the predictions you provide with the possible outcomes of: a true positive, a false positive, a false negative, or a true negative.

Could you walk our readers through a possible example—maybe a possible strike on Iran, for instance—something that’s timely and which you talk about in your book?

Sure. I want to go back first to 1935, when France and England could easily have prevented Nazi Germany from becoming the strongest army in Europe and killing 50 million people.

But, in order to do so, they would have had to make a prediction and take preventive action. It had to have predicted that Hitler was going to do what he did, and history is blind to the future. And it also would have had to have taken preventive action—military action. Attacking army bases, maybe killing 10,000 people in the process, but they would have saved the lives of 50 million, had they taken this preventive action. So that was a horrible, horrible false negative.

The failure to prevent Pearl Harbor was a false negative. The failure to prevent 9/11 was a false negative.

But then we’ve had many false positives. We had Iraq—going into Iraq on the basis of a false claim that they were developing nuclear weapons. So we’ve had enough of both.

A lot of people think you can get a free lunch—you can either prevent all kinds of horrible acts without diminishing liberties—and I think you can’t do that. I think it’s always a trade-off.

And one of the reasons that people hate thinking about issues like this is: Unlike other areas where there are right and wrong answers, here it’s always going to be a matter of degree.

And that’s why I created the framework for evaluating the preventive state and the actions of the preventive state. And why I’ve been doing this for 60 years, and nobody has picked up the cudgel and said, “Hey, this is what we ought to do.”

One of the points that you allude to in your book is that the world—the public that judges actions—in the case that you provide, say, a strike against Nazi Germany, they may have only seen the result of X number of people killed from hitting industrial sites in the Rhineland or something like that, but they would have been unaware of what would have happened had Britain and France not done that.

Because how would they have known? And that’s the challenge that can come up: It’s difficult—if not impossible—to see what could have been otherwise.

Sure, and the same thing is true on the simple issue of: Do you put somebody out on bail?

If you make a mistake and you put a person out on bail who then goes and commits a terrible crime, everybody knows about that. 

“Oh, that’s the judge who let so-and-so out.”

But if you keep 100 people in jail based on mistaken assumptions that they’ll do it in the future, none of whom would have done it—we’ll never find out about that. So you’re always going to err on the side of “When in doubt, don’t let them out.” And that policy prevails throughout all preventive decisions that have visible consequences.

I want to ask you about John Rawls. He’s someone who is cited by so many thinkers, other people I interview. But you’re, I think, one of the only people I’ve spoken to who actually knew him and interacted with him. You described being in a study group when he was in his 40s, and you were in your 20s at Harvard. He was working on his theory and you on yours.

Can you talk about what sort of reaction he had? I know you described your theory [as presented in this book] then as in its preliminary stage, but what was some of the feedback he gave you to some of your legal theories?

He thought it was too empirical, too pragmatic, and that he didn’t see enough principle in them. And I took his concerns very seriously. I was also very critical of his approach.

I thought that, you know, it’s easy to imagine yourself in a netherworld before we knew who we were going to be. I could easily imagine myself as being a black woman—okay, I can do that.

I cannot imagine myself as somebody with a 102 IQ. I cannot imagine myself as somebody who is just not bright. As you know, obviously the median IQ in this country and this world is 100. So I think it fails to take into account enormous differences in intellect, in education, and a range of other things.In some respects, his theory is a little bit elitist from an intellectual point of view.

But, being in a study group with John Rawls and Tom Schelling at the age of 25—it was quite remarkable. Just the idea of being treated as an equal—with Bob Nozick as well—and being able to exchange ideas with these people who ultimately became giants in the intellectual world, it was a hell of a way to start a career at Harvard.

Is there something similar like that today at Harvard?

Nothing like that. At Harvard, you couldn’t even today have the Lincoln-Douglas debates. Half of Harvard would say, we don’t want to hear Lincoln. Half would say, we don’t want to hear Douglas. There is no intellectual exchange to speak of at Harvard or at any other major university.

When’s the last time you had a good debate at a university? Universities are no longer places where ideas are exchanged, where intellect and pure intellect are valued. Everything depends on what side you’re on. And universities, led by Harvard, have become places in which professors think they have the obligation to teach you what to think, not how to think.

Yes—a lot of ad hominem in place of argumentation. I know in your book you quote Freud who said civilization began when we started hurling insults instead of spears. 

Unlike certain other legal thinkers, you don’t derive your conception of rights from God. In fact, you term it your “secular theory of the origin of rights.” Rights, you write, “come from human experience, particularly experience with injustice.”

Obviously there are many—but can you give a couple of examples and then why, in your view, this is a better framework for thinking about rights than some of its more historically popular alternatives?

Remember, my theory is an empirical one. I’m not arguing this is the way it should be. I’m arguing this is the way it is. After slavery, we learned that equality is really very important. After sexism, we learned that we have to treat women [equally].

After the Holocaust, we had a moratorium on anti-Semitism for 50 years. It’s now over, and anti-Semitism is now the greatest human rights challenge facing the people of the world today.

They don’t recognize that. Today on CNN, they celebrated the fifth anniversary of the killing of George Floyd, which was a very important event in our history. But that was a close case, George Floyd. The [recent] killing of the two [Jewish] people in Washington, D.C. was not a close case. And yet we’re going to see that killer’s picture on T-shirts. We’re going to see people at Harvard claiming that he did the right thing.

That’s what happened after October 7th. Thirty student groups at Harvard justified the killing of 1,200 people, the capture of 250, and blamed it on Israel. So we’re seeing an upside-down, topsy-turvy world when it comes to values.

Do you think the current administration’s steps to mitigate this anti-Semitism threat are effective or going far enough or too far?

I think they go too far. I think that cutting off all access by foreign students to Harvard goes too far. I think cutting off all funding to scientists that are trying to cure cancer goes too far.

But I think what the universities are doing doesn’t go far enough. Remember, Harvard not only tolerated anti-Semitism; it taught it. By teaching intersectionality, by teaching about DEI, by advocating a kind of race-based teaching, that fomented anti-Semitism. Critical race theory at its core is anti-Semitic. DEI at its core is anti-Semitic.

Intersectionality divides the world into the oppressed and the oppressors. The Jews are the oppressors, and the Palestinians are the oppressed. 

So Harvard bears tremendous responsibility as the leading university in the world for this major change in the role of universities, and it will have a bad place in history unless it changes its trajectory.

Someone who comes up frequently in your book—as early as the first page of Justice Breyer’s introduction—is Oliver Wendell Holmes, who of course argued, “prevention is the chief and only universal purpose of punishment.” He’s someone who, at times, is depicted rather reverently in your book as a brilliant thinker, and, at other points, rather critically, especially when you disabuse people of the wisdom in the thought experiment about yelling “fire” in a crowded theater.

Can you talk a little bit about Holmes’s influence on your thinking, and maybe why he’s remembered so much more by history than some of the other justices who were on the Court at the same time?

He was probably one of the most brilliant and best-educated justices in history. Also, he had vast empirical experiences; he fought in the Civil War. He was a great, great—but deeply, deeply flawed—man.

His “shouting fire in a theater” is the dumbest thing a smart man ever said. Of course, you can’t shout “fire” falsely in a theater—because it’s not speech. It’s pulling an alarm. You remember the congressman who competed in Congress for pulling the alarm? What if the alarm didn’t work, and instead he had shouted, “Fire! Fire!” It’s the same thing.

Shouting "fire" is not an appeal to the mind; it’s an appeal to the legs: Get out of there as fast as you can. Don’t argue, don’t debate. So it’s a horrible analogy. And it was based on a case where somebody was handing out leaflets urging people to become conscientious objectors and not to serve in Wall Street’s war—World War I. So the analogy was cheated. It was unfair. It was wrong. And it was based on a lie. And so it diminished my respect for Holmes enormously.

But Holmes’s thinking in his book The Common Law, and his writing about criminal law, is among the most brilliant from the pen of any justice.

And I think it was in the context of Buck v. Bell where you’re talking about this idea of brilliant but misguided justices. And this is something that crops up time and again throughout history—brilliant people making mistakes in law.

Well, not only mistakes—but the worst book ever written about the Second World War is Hannah Arendt’s Eichmann in Jerusalem, subtitled A Report on the Banality of Evil.

The Nazis were anything but banal. They were among the most brilliant people in all of Europe—even Eichmann was very, very smart. And many of the other Nazi leaders were. To say that bigotry grows out of stupidity or banality just misunderstands history.

Some of the most evil men in the world are among the most brilliant men in the world. So I think it’s very important to understand the complexity of human beings and how really, really smart people can make mistake after mistake.

Buck v. Bell is a perfect example. Justice Brandeis joined that opinion. And that opinion basically said if a person has a mental illness of a certain kind and for two generations, you can then sterilize the third generation. That led Holmes to his famously dumb statement: “Three generations of imbeciles are enough.”

I would have thought he was talking about the Supreme Court justices when he said that, but he wasn’t. It turned out in Buck v. Bell the person who was sterilized was not mentally retarded. They made a mistake. She was a false positive.

And she would never be allowed to have children, in order to prevent others in the future from committing crimes or starving to death. So Buck v. Bell is a paradigm of a preventive decision.

By the way, just as deportation today is a paradigm of a preventive decision. We call it deportation, but, in common law, it was called exile. And people were sent out of the country for fear that they could hurt the king or hurt people. We’ve been dealing with this idea of deportation—exile—from the beginning of history. And prevention—from the beginning of history.

The Bible talks about how you should kill a child who is disobedient to his parents in order to prevent him from becoming a criminal adult. The Bible also says if somebody comes to kill you, rise up and kill him first. So we’ve done prevention, we’ve thought about prevention, but never in a systematic way.

And so, you know, my book The Preventive State is the first attempt by any academic to create a jurisprudence of prevention.

But let me tell you something sad: The New York Times will not review it. Why? Because I defended Donald Trump. And because I defended Donald Trump, none of my books have been reviewed by The New York Times.

It will not be reviewed by other mainstream people. I will not be invited to speak at universities about this book—even though it’s the most important of my books. It’s my 57th book. I’ve had like eight or nine bestsellers, and I’ve spoken about these at universities. This is my most important book. But because I defended Donald Trump, it will not get the attention it deserves.

So I appreciate your having me.

Lastly, one of the things that comes up frequently in your book is Blackstone’s ratio. We’re all sort of familiar with it. It’s been drilled into our heads as Americans, most of our lives. But you make a pretty compelling claim that most of us probably would not want ten successful terrorist attacks to take place rather than one false terrorist be detained at Guantanamo Bay. To what degree should we reconsider this heuristic or this thought experiment?

First of all, you’re absolutely right. It’s a thought experiment. In practice, we don’t believe that ten guilty should go free rather than one innocent be wrongly confined. In fact, we reverse that ratio. We tend to err on the side of making sure that guilty people are never acquitted. We say we believe in “better that ten guilty go free.” 

And the good thought experiment is when we test that against predicting future crimes. Nobody would say, “Better ten 9/11s occur than 20 people be falsely detained.” Or to go to Israel—“Better October 7th occur than 100 Hamas people and 100 innocent civilians be killed in order to prevent October 7th.” We never say that, because we don’t believe it.

Now, we also don’t believe it when it comes to past crimes, but we say it, because it’s become part of our heuristic. And, by the way, it derives not only from Blackstone but from the book of Genesis in the Bible, when God threatens to kill all the people of Sodom. And Abraham bargains with Him and gets Him down to ten. So that magical number ten has been a heuristic for centuries. And it will continue to be so.

And my theory is: If you don’t like the number ten when it comes to prevention, come up with another number. But you have to come up with a number. You have to come up with a jurisprudence. You can’t just leave it to judges.

And the reason I wrote The Preventive State is to try to pressure people—maybe even guilt them—into coming up with a framework, with a jurisprudence so that we don’t just detain people in order to prevent crimes without knowing what the ratio is.

I really appreciate your time, Professor. And I enjoyed the book and hope it continues to get the attention and dialogue it deserves.

I appreciate it. Thanks for having me.  

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