I have been writing about the law and justice for half a century. My first published law review piece appeared in 1960 as a student note in the Yale Law Journal. (1) Since that time, I have published nearly thirty books and hundreds of articles covering a wide range of legal, philosophical, historical, psychological, biblical, military, educational, and political issues. Until I listened to the excellent papers presented at this conference on my work, I had never realized--at least on a conscious level--that a single, underlying theme, with multiple variations, runs through nearly all of my writings. As a response to those papers, I will seek to articulate that theme, show how it pervades my writing and teaching, identify some of its roots in the teachings of my own mentors, try to defend its fundamental correctness, and point to several weaknesses and limitations that remain to be considered before I complete my life's work.
The theme is not obvious, and no single speaker at the conference identified it fully, though most touched on elements of it. It is not obvious because, on the surface, it is difficult to see one single-colored thread running through a tapestry that appears to weave together so many different subjects. After all, I have written, inter alia, about the crimes of attempt and conspiracy; the commitment of the mentally ill; the defense of insanity and other legal excuses and justifications, such as "necessity," "self-defense," and "provocation"; sentencing and plea bargains; corporate and group crime; legal codification; freedom of speech; pornography; search and seizure; wiretapping; entrapment; coercive interrogation and torture; bail and preventive detention; the causes of terrorism; preemptive and preventive wars and other anticipatory measures; affirmative action; the Israeli-Arab conflict; freedom of and from religion; biblical interpretation; the sources of rights and morality; the Declaration of Independence; Jefferson's views regarding religion, speech, and terrorism; judicial selection; legal ethics; and the appropriate criteria for interpreting the Constitution.
I. THE OVERT TEXTUAL MESSAGE OF MOST OF MY WRITING
One theme that has been common to many, but not all, of my writings has been the prevention of harmful conduct, as contrasted with the after-the-fact punishment of completed crimes. My first published note began by adumbrating this issue:
Legal folklore includes the notions that the criminal process is invoked only against acts which cause demonstrable injury, and that sanctions are applied in rough proportion to the actual harm inflicted upon society. But concern for the safety of society often provokes use of the criminal law to protect its citizens from potentially dangerous behavior patterns. Thus, when some harmful acts indicate a propensity in the actor to cause even greater harm, the criminal law frequently measures the sanction to be imposed, not merely by the actual injury done, but also by the potential injury implicit in the actor's conduct. Simple assault and assault with intent to kill may produce the same quantum of injury, but the sentence prescribed for the latter offense is more severe, probably because it includes consideration of the propensity to kill. This concern for potentially dangerous behavior has led to the imposition of criminal sanctions for certain acts which result in no injury at all--so-called inchoate crimes. The law of "attempts" is one category of such crimes. When a person attempts to commit a crime such as murder, but fails for some reason to achieve his intended result, he may be guilty of an attempt. Because injury is not an essential element of a criminal attempt, the only rational function of the law of attempts must be the identification of individuals whose overt behavior manifests dangerous criminal propensities. (2) This theme of prevention has been reflected in much of my work, culminating in my 2006 book Preemption: A Knife That Cuts Both Ways, which proposes the articulation of a new jurisprudence for what I call the "preventive state" that is in the process of emerging in response, most particularly, to the threat of non-deterable suicide terrorism. I began that book with the following description:
The democratic world is experiencing a fundamental shift in its approach to controlling harmful conduct. We are moving away from our traditional reliance on deterrent and reactive approaches and toward more preventive and proactive approaches. This shift has enormous implications for civil liberties, human rights, criminal justice, national security, foreign policy, and international law--implications that are not being sufficiently considered. It is a conceptual shift in emphasis from a theory of deterrence to a theory of prevention, a shift that carries enormous implications for the actions a society may take to control dangerous human behavior, ranging from targeted killings of terrorists, to preemptive attacks against nuclear and other weapons of mass destruction, to preventive warfare, to proactive crime prevention techniques (stings, informers, wiretaps), to psychiatric or chemical methods of preventing sexual predation, to racial, ethnic, or other forms of profiling, to inoculation or quarantine for infectious diseases (whether transmitted "naturally" or by "weaponization"), to prior restraints on dangerous or offensive speech, to the use of torture (or other extraordinary measures) as a means of gathering intelligence deemed necessary to prevent imminent acts of terrorism. (3) We are doing all this and more without a firm basis in law, jurisprudence, or morality, though there certainly are historical precedents--many questionable--for preventive actions.
I ended it with a proposal:
There is a desperate need in the world for a coherent and widely accepted jurisprudence of preemption and prevention, in the context of both self-defense and defense of others. There is also a pressing need for a neutral body or other fair mechanism to apply any such jurisprudence. Today both needs are lacking. In the absence of a jurisprudence and jurismechanism, ad hoc decisions become the de facto rules. (4) In my most recent academic book, Is There A Right To Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11, I issued a challenge to future generations:
We need to develop a jurisprudence for the emerging preventive state. This jurisprudence should contain both substantive and procedural rules governing all actions ... taken by government officials to prevent harmful conduct, such as terrorism. Black holes in the law are anathema to democracy, accountability, human rights, and the rule of law. I urge citizens, legislators, judges, and scholars to take up this important agenda. (5) Between my 1960 article on the law of attempts and my 2008 book on preventive interrogation, I wrote dozens of articles and books relating to the prediction and prevention of harmful conduct, and taught numerous classes about that and related issues. The writings ranged from the preemption and prevention of harmful conduct by the mentally ill to the effort to predict which kinds of speeches and writings might lead to violence. They included preventive detention of suspected terrorists; preventive interrogation; and surveillance methods designed to secure real-time intelligence information necessary to prevent terrorism, preemptive military actions, pre-trial detention of ordinary criminals, preventive genetic testing and inoculation, preventive character testing, and preventive profiling. As to all of these issues, I have sought to balance the imperatives of due process, liberty, and decency against the legitimate needs of national security and crime prevention. (6)
The overt text of many of my books, articles and classes dealt in large part with the substantive and procedural issues growing out of the prediction and prevention of harmful conduct--the movement we are experiencing toward the "preventive state"--and the jurisprudential problems associated with this movement. (7) There is, however, a more subtle subtext that runs through not only the writings about prevention but virtually all my other writings as well. The overt text has been obvious to readers, reviewers, commentators, and those who presented papers at this symposium. The subtext has been less obvious, though in my view, of equal importance. It is that subtext that I wish to identify and explore in this Article.
II. THE MORE SUBTLE SUBTEXT OF ALL MY WRITINGS
The subtext that runs through all of my writing and teaching is the need in a democracy for openly articulated criteria and standards whenever states (or state-like institutions) take actions that affect the rights of individuals. This need may seem obvious, since democracy cannot operate in the absence of visibility and accountability. Yet, in virtually all of the areas about which I have chosen to write and teach, the criteria and standards for government action have been unarticulated or hidden from public view. Moreover, there have been some who have argued that it is wiser, even in a democracy, to sometimes hide from public view (and hence public scrutiny) what the government is doing. (8)
It cannot reasonably be disputed that some governmental decisions and actions must be kept secret, at least for a time. Espionage activities, weapon development, military planning and the like must, by their very nature, be kept under wraps if they are to succeed. But broad policy decisions should, in a democracy, be subjected to the checks and balances not only of the other branches of government but of non-governmental organizations such as the media, the academy, and, most importantly, the citizenry. As I wrote in Rights from Wrongs:
This balance is part of our dynamic system of governing, which eschews too much concentration of power. American sovereignty, unlike that of most other Western democracies, does not...