Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Noah Feldman:

The justices are going to have to decide where is the line, because if they can make you have the 10 Commandments, can they also make you pray again? Is school prayer going to be back on the table? Well, that will be the next thing.

Preet Bharara:

That’s Noah Feldman. He’s a Felix Frankfurter professor of law at Harvard University and a prominent legal scholar of constitutional law. At a time when the separation of church and state is being vigorously tested in states across the country, there’s arguably no one better to explain their current state of play than Feldman. He has written extensively on the relationship between government and religion and authored the 2005 book Divided by God: America’s Church-State Problem and What We Should Do About it. I speak with Professor Feldman about why he believes we’re at a pivotal moment in the separation of church and state in America, his experience helping craft Iraq’s first democratic constitution two decades ago, and the urgency of regulating AI tools like ChatGPT. That’s coming up. Stay tuned.

Now let’s get to your questions.

Larry:

Hi Preet, this is Larry from West Hartford, Connecticut. My question is why is representative Jim Jordan so eager to depose Mark Pomerantz. If Pomerantz quit the DA’s team, Alvin Bragg’s team, because Bragg wasn’t moving aggressively enough against Trump, why does Jordan think that Pomerantz’ testimony will hurt Bragg? Thanks very much. Bye.

Preet Bharara:

So that’s a really good question, one that a lot of people have been asking, one that I’ve been thinking about. And I’m generally with you on the idea that even for Jim Jordan’s own purposes, political or legislative or whatever they are, even for his own purposes, his stated purposes, I think his interest in Mark Pomerantz is overblown given the facts and given as you point out that he had left the office. But if you look at the terms of Jim Jordan’s own subpoena letter, you’ll get something of the gist of why he thinks Mark Pomerantz will be valuable. And in part, it’s not for the purposes of hurting Bragg as you suggest in your question. If you look at the language of the letter, it’s for the purpose of hurting Pomerantz and thereby hurting the DA’s office generally.

Let me give you a couple of quotes from Jim Jordan’s letter. This is to Mark Pomerantz. “Based on your unique role as a special assistant district attorney leading the investigation into President Trump’s finances, you are uniquely situated to provide information that is relevant and necessary to inform the committee’s oversight and potential legislative reforms.” So that’s a generalized statement about the fact that Mark Pomerantz will have some understanding of an experience in the workings of the DA’s office, particularly with respect to the investigation of a former president. And that would provide some grist for legislative activity. And a bare minimum of legislative activity or legislative relevance is all that’s needed to enforce the subpoena. And a federal district court judge in the Southern District of New York has already basically decided that.

But then the letter goes on to attack Mark Pomerantz. Jordan cites to Ponce’s book, which he says, “Reveals the extent to which the New York County district attorney’s office’s investigation of President Trump appears to have been politically motivated. Specifically, you describe your eagerness to investigate President Trump writing that you were delighted to join an unpaid group of lawyers advising on the Trump investigations and joking that salary negotiations had gone great because you would’ve paid to join the investigation. You frivolously compared President Trump to Mob boss John Gotti.” And it goes on and on and on talking about the political motivations not just of the office generally, but of Mark Pomerantz.

Obviously that raises the question, if that’s the case that was politically motivated and Mark Pomerantz left and Alvin Bragg chose not to take up that case, doesn’t that disprove Jim Jordan’s theory? Well, I guess the Jim Jordan theory is after having not prosecuted the case that Pomerantz desired to prosecute, Alvin Bragg must have felt extreme political pressure, and perhaps partisan pressure, to bring some other case against Donald Trump. And hence the theory goes, he brought this action, this indictment relating to the hush money payments against Donald Trump. At the end of the day, I don’t think the testimony is as valuable as Jim Jordan thinks it is, which I think you think also based on the spirit of your question. I think largely this was a stunt, a political stunt. It’s attention getting. It’s news getting. And an example of that is the fact that we’re talking about it now and continue to talk about it.

This question comes in a tweet from Brian who asks, “What is the significance/likely impact of SCOTUS agreeing to hear Loper Bright Enterprises versus Raimando?” So this is a big deal case that a lot of people are asking about and we’ll see how it unfolds. And at its essence, without getting too much in the weeds yet, at its essence this is a case about the balance of power as between the executive branch and the judiciary who gets to decide when Congress passes a law what the proper interpretation of a highly specialized statute is. So as you, I’m sure, are aware, we have a very vast federal government and lots of agencies that have particular mandates and particular expertise. It has been a conservative agenda item to dismantle the administrative state in some ways. And we’ve seen in recent times the Supreme Court in other contexts sort of taking away power and refusing to grant deference to administrative agencies. We saw that most recently in the abortion pill, the mifepristone case, where the courts have started to say, “Well, the FDA does not know best. Maybe the courts know best.”

So this is another example of that, but it goes to the essence and the heart of how administrative law has been understood and practiced in this country for quite a long time. The concept of administrative deference is most famously encapsulated in a case from 1984, a case called Chevron v. Natural Resources Defense Council, which basically said when Congress passes a law and it’s ambiguous about a particular matter within that law, the relevant agency should be deferred to so long as the relevant agency’s interpretation and resolution of the ambiguity is reasonable, right? So it’s unclear whether X or Y is what the statute calls for. And if the agency says it’s X or the agency says it’s Y, and that’s a reasonable interpretation, the court, or courts, are not supposed to substitute their own judgment for that reasonable interpretation.

So in the particular case that you’re referring to Loper Bright Enterprises, the facts are as follows. This case involves a complaint or a concern on the part of herring fishermen in the Atlantic. The agency that they’re annoyed with is the National Marine Fishery Service. So there is a particular law passed by Congress that gives that agency, the National Marine Fishery Service, the ability to impose a monitor, a federal monitor on fishing boats to make sure that the people who are doing the fishing are observing all laws and proper practices. The ambiguity is the statute does not indicate who should pay for that federal monitor. The agency decided in this matter that it would impose the cost on the fishermen. And of course the fishermen don’t like that because it’s a low margin business to begin with, and it cuts into profits. So they have sued, and that’s the case we’re talking about. Seems like something very, very narrow, but it has huge implications, as you suggest in your question, for all sorts of other areas of commerce, liberty, and everything else.

Chevron said that as long as the resolution of the ambiguity is reasonable, then you have to defer to that reasonable interpretation. And here if Chevron were to be adhere to and followed, then it would be a reasonable consideration for the monitor to be paid for by the fishermen. But this case that you reference in your question is one that’s going to the Supreme Court where the Supreme Court has certified a particular question, and that is whether the court should overrule Chevron among other things. So what does that mean? That means if the Supreme Court overruled Chevron in cases like the fisherman case, the court can substitute its own judgment for the expertise and judgment of a particular federal agency.

What does this mean? Well, our friend and former podcast guest, Steve Ladik puts it this way, “If it’s up to courts rather than agencies to resolve ambiguities even in statutes delegating highly technical authority to the executive branch, that will give courts more power and the executive branch less on everything from environmental regulation, to immigration, to public health, to meet inspections, to telecommunications policy. In that respect, it’s consistent with the current conservative majority’s pattern of a weakening the administrative state in favor of judicial power to answer all of these questions.”

One other note, most recent Justice Ketanji Brown Jackson has recused herself from consideration of the case on the Supreme Court because she was involved in it as a judge on the DC Circuit Court of Appeals. So once again, for the umpteenth time it seems in recent months, we’re on the cusp of seeing a fairly established Supreme Court precedent, this case, Chevron from 1984, being overruled by a new majority on the Supreme Court. We’ll see what happens.

I’ll be right back with my conversation with Noah Feldman.

Noah Feldman is a distinguished Harvard Law School professor and public intellectual. His scholarship focuses on constitutional studies with an emphasis on power and ethics, law and religion, and the history of legal ideas.

Professor Noah Feldman, welcome to the show.

Noah Feldman:

Thanks for having me.

Preet Bharara:

Before we start talking about separation of church and state and some other things that you are expert on and have been thinking about and writing about, I do want to throw you a paraphrase of a quote, which is, “Noah Feldman writes a book in the amount of time it takes some people to read a book.” Fair?

Noah Feldman:

Totally unfair. I’ve only written-

Preet Bharara:

Well, I read very slowly.

Noah Feldman:

I’ve written 10 books. And I’ve been-

Preet Bharara:

I’m not sure I’ve written books.

Noah Feldman:

… doing it for about 20 years, so I don’t think most people take two years to read a book.

Preet Bharara:

Oh, I don’t know.

Noah Feldman:

I do have a colleague, [inaudible 00:10:24], who does write a book in that speed, but that’s not me.

Preet Bharara:

Yes. So that’s the slight exaggeration, but you’re fairly prolific. What’s the secret to being prolific?

Noah Feldman:

I mean, I think probably some people would say it’s having no restraint in what you have to say. But to say something slightly less damning than that, I would say that I get up every morning, drop my kids at school, go to my desk, and I don’t check my email or communicate with anybody until lunchtime unless it’s a day where I’m teaching. And if you do that every day and you commit yourself to that every workday, amazingly you will find out you have things to say, and I think this would be true of anybody who did that. So I think it’s just a product of, I guess some obsessional compulsion to actually get up and try to come up with what I have to say that day.

Preet Bharara:

So one of the things I want to talk to you about is, as I mentioned, the separation of church and state, which is a phrase we use a lot in this country. You wrote a book back, oh, so many years ago, 2005. So 18 years ago it came out and it was called Divided by God: America’s Church State Problem and What We Should Do About it. It turns out there’s a lot still going on with it and I think it doesn’t get as much attention as some other things. So can we start from the beginning and take it from the top? So we have something called the Bill of Rights, the first 10 amendments to the constitution. Are the amendments in order of importance for the founders or not?

Noah Feldman:

I wish they were, but they aren’t. Madison-

Preet Bharara:

Are they in any kind of order at all?

Noah Feldman:

Well, Madison drafted the Bill of Rights as a campaign promise because so many people in his district wanted a Bill of Rights. And indeed, nationally when the constitution was ratified, many people felt that it was inadequate without a Bill of Rights. And there was a background threat that if they didn’t pass a Bill of Rights, there would be another constitutional convention. Madison believed it to be a near miracle, his word, that they had ever ratified the first constitution. And he thought if they had another convention, all hell would break loose, which is by the way what I also think when people sometimes say, “Today we need a new constitutional convention,” and I say, “Have you met us?”

So he thought he’d better get a Bill of Rights through before the end of his first term in Congress. And sure enough, he took proposals from all over the country and he combined them, he played with language, he tried to come up with the most inclusive possible way of formulating it, and he produced actually 12 amendments. We ended up with 10 of them being enacted. And so the First Amendment is high on his list in terms of importance, but it wasn’t meant to be the very first. So there’s a bit of an accident of history there that we consider the First Amendment to be where the most important stuff is. But sure enough, there you have it, free speech, free exercise of religion, and no establishment of religion in our First Amendment.

Preet Bharara:

So gun rights advocates can’t say that the Second Amendment is the second most important amendment per that analysis of history?

Noah Feldman:

I agree that they cannot say that. I do think that if we were to be fair, we would say that the Second Amendment was actually important to the founders, but what they meant by it bears literal or no relationship to what people today think the Second Amendment stands for and what the Supreme Court thinks that it stands for. But maybe that’s a conversation for another day on your show.

Preet Bharara:

All right. So let’s do some more basic laying of a foundation. So the first part of the First Amendment to our constitution says two things, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Those are two different things, two different clauses, each of which has I think it’s fair to say its own jurisprudence and there’s an overlap in intersection between those two. Fair?

Noah Feldman:

Totally fair. And if we want to go back to the beginning, what they meant was pretty straightforward, but it’s not exactly what the courts have taken them to mean today, which is fine for me since I’m not an originalist. But if you were an originalist, a sincere one, you would think that no establishment of religion meant that the government couldn’t create an established church that coerced people into either attending such a church or paying for such a church, and that the free exercise clause meant that the government couldn’t stop you or interfere with you in the performance of your own affirmative religious practices and beliefs. And so the two fit together logically. And the reason you needed both of them is that one was to say the government can’t make you do anything in the realm of religion. And the other one was to say the government can’t prohibit you from doing anything in the realm of religion.

Preet Bharara:

So with respect to the establishment clause, fair to say that it arose in part not only because of principles of how governments should operate and how religion should be separate, but also taxpayer revolt?

Noah Feldman:

For sure. The taxpayer revolt had something to do with the principle as well. So nearly everybody in the early United States believed and most had believed for the better part of a century that you have a fundamental right to be free in your conscience, your religious conscience. And in England, people thought that meant the government couldn’t force you to do something religious that you didn’t want to do or prohibit you from doing something religious. In the US where people were obsessional about taxes, and remember we wouldn’t even had an American revolution if our great, great spiritual grandparents hadn’t been such nuts on the topic of not paying taxes, they started to believe that, “If the government made me pay tax dollars that then went to a religious purpose, that would violate my conscience.” And from that they derived the idea that, “The government couldn’t take my money and use it to pay a minister or to pay for the teaching of the gospel in a school because it would violate my conscience if my money went to a teaching that I might not believe in.”

Preet Bharara:

To which founders was it the most important?

Noah Feldman:

Madison was the founding father most focused on freedom of religion and non-establishment, closely followed by Jefferson who had written the statute on religious freedom for Virginia, but who, as everyone who saw Hamilton knows, was in France when they drafted the constitution. And so as a consequence, it was left to Madison who was front and center literally in the constitutional drafting process to emphasize this important issue.

Preet Bharara:

And Jefferson, I think as you’ve written and others have, developed a more sort of secular view on these points over time. Is that right?

Noah Feldman:

Correct. The younger Jefferson was a strong supporter of the idea that people should be free to believe or not believe as they chose. But he wasn’t especially anti-religious until he went to France and was there in the run-up in the beginnings of the revolution.

The French Revolution had about it, among other things, a very strong anti-clericalism, and that began to affect Jefferson. And then when he came back to the United States and ran for president in 1800 and again in 1804, New England congregationalist ministers were strongly against him and they campaigned against him. And that only red redoubled Jefferson’s sense that religion was actually kind of a dangerous thing when deployed in the context of public life. And that made him more of, I wouldn’t call him a secularist in the modern sense, but he was somebody who was very skeptical of religion. He in fact went so far as to go through the gospels using a scissors and paste and to cut out everything he thought it was implausible that a kind and wise Jesus would actually have said and then paste it back together and to reconstruct it as the sayings of Jesus of Nazareth. Now this is a so-called Jefferson Bible. And if you think about it, that’s a pretty radically secular thing to do. But on the other hand, he cared about Jesus. He just didn’t suggest that Jesus was divine.

Preet Bharara:

How much of the import and the interest in the establishment clause and also the pre-exercise clause arise from a respect for pluralism, diversity of religious views or not so much?

Noah Feldman:

A lot. And I would say that that was true in two ways. The first way was principled and the second way was pragmatic. The principled was, where do we get the idea that the government shouldn’t force you to have the correct religious beliefs? I mean, through most of human history, most religions were perfectly willing to force people to worship or otherwise pray in the way that the people with power wanted them to do.

So just to even have the idea that this should be up to you, it helps to have tolerance of other people’s beliefs where you might say, “I think your beliefs are wrong, but I’m happy to tolerate them because it’s up to you to choose what you want to believe.” So that’s the principled part of it. That’s the part where you have to say, “Look, we don’t all believe the same thing and we’re all trying in good conscience to come up with our best beliefs or none.” And tolerance says, “Not so much that I respect your views, but that I will allow you to have them because even if I think you’re wrong, you might be right and it’s certainly what you believe.”

The pragmatic component is the fact that even from the start, the American founders were pretty religiously diverse. Now that sounds weird because around the time of the founding, more than 99% of Americans were Protestants. So it seems odd to say that they were diverse, but actually within Protestantism they were extremely diverse. They were those who were supporters of the Church of England. They were those who were Presbyterians. There were those who were Baptist. There were other denominations and they were divisions even within some of these groups like the Congregationalists. And so in that sense, they experienced themselves as very religiously diverse, and that meant that they didn’t want to establish a single religion because that wouldn’t be compatible with their diversity. And so that was the kind of pragmatic we all have to get along here and we don’t all agree, so we can’t have a single national religion.

Preet Bharara:

So I think it’s also fair to say that since that time, the population both on religious grounds and otherwise has become increasingly diverse. There are more religions practiced outside of Protestantism, outside of Christianity. As the country has become more religiously diverse, what do you think has happened during that period to an understanding of respect for and endurance to those two clauses of the First Amendment?

Noah Feldman:

In general, the big picture is that every time our country got substantially more religiously diverse, mostly because of immigration but sometimes because of creation of new homegrown religions, each time that happened, we got more tolerant and more open-minded and more protective of religious liberty, but it always took a few beats. There was always some pushback followed by expansion.

So take Catholic immigration to this mostly Protestant country, which really took off with the great famine in Ireland in the late 1830s and 1840s. At first there was a fair amount of Protestant anti-Catholicism that characterized the reaction to the arrival of Catholic immigrants. But then gradually, the idea of openness and diversity expanded to include Catholics as well. Then in the late 19th and early 20th centuries, you had substantial Jewish immigration from Eastern Europe. And again, we got an expansion. It took a while. There were some anti-Semitism. Then eventually that receded and we began to think that, “Well Americans could be a Protestant, a Catholic, or a Jew.”

Then we got yet another round of expansion broadly over the last 40 or 50 years, including expansion so that we had a larger Muslim population, a larger Hindu population, a larger Buddhist population. With each of these waves, there are moments of Islamophobia or other kinds of racism or other forms of prejudice, but then they have tended to give way to a greater and more inclusive sense that Americans belong to many, many different faiths or none, but we’re all Americans and we are all in this together.

Preet Bharara:

So how did the rhetoric of, in the language of a wall, separation between search and state and this description of a wall, how did that come about? Is that a helpful metaphor? Is that an off-putting metaphor to some folks? Is there a better one that we can and should use?

Noah Feldman:

So the history of that metaphor actually goes back before even the founding of the United States. And it comes from a metaphoric sermon by Roger Williams who was the Protestant religious leader who founded the Colony that became Rhode Island. He founded Providence. He did that because he was a religious dissident from the orthodoxy of good old Massachusetts Bay and of Boston. And he was subject to real potential discrimination and oppression and even potentially to trial for heresy. So he left, founded this new colony and committed that colony to religious liberty.

Williams had this metaphor in which the wall of separation was between the garden, which was the place of God’s will, and the wilderness, which was the rest of the world. This led him to this idea of separation. And then Jefferson ended up quoting, nearly a century later, substantially in fact more than that, quoting Williams in his own writing. And then the metaphor of separation got picked up again by Justice Hugo Black right after World War II in some of the early opinions in which he was articulating the modern theory of the separation of church and state.

And so from that moment forward, people who really want a strict separation between church and state have loved that metaphor. This is sort of like the organization Americans United for Separation of Church and State, that’s what it’s called, the ACLU. Others who have wanted strong separation love that metaphor. Meanwhile, that metaphor is really disliked by people who say, “Well, first of all, it’s not actually in the constitution,” which talks about free exercise and non-establishment. There doesn’t have to be a strict wall between the two because in fact there is some overlap between religious belief and real world political praxis. And so for them, we should abandon that metaphor. So I think of the metaphor as today, somewhat controversial, which doesn’t mean it should be abandoned, it should just be recognized as standing for let’s say the strongest version of separationism.

Preet Bharara:

It raises the point that others have made. Often when we talk about these things, and you talk about separation as you just mentioned, the strongest version of that is something that’s espoused by a certain kind of ideology, the ACLU you mentioned. But there are people who say that that separation of church and state is not only good for the state, it’s good for the church. What do they mean by that and what do you think of that argument?

Noah Feldman:

That was actually the original argument for separation. I mean, Williams himself was about-

Preet Bharara:

It’s a pro religion argument.

Noah Feldman:

It’s a pro religion argument.

Preet Bharara:

Right.

Noah Feldman:

And the idea was that if the government gets involved in religious life, then the government’s going to want to tell you what to believe and how to worship. And that’s bad because you want to be able to develop your own beliefs and your own practices without anybody forcing you into something else.

So the earliest version of separation was a version which had actually almost no interest in protecting the state from religion was focused on protecting religion from the state. And over time, people have come to see, or some people have come to see at least, that there’s benefits on both sides, that each can gain some benefit from being in separate spheres. One reason that many people believe that the United States has such a rich and varied religious life compared to many other economically developed countries in the world is because we have this separation instead of having an established church like they have, for example, in the Northern European countries, like the Nordic countries, where there are these very beautiful established churches, but almost nobody ever goes into them. People are in the church perhaps to be baptized and married and buried. And that’s pretty much it in many cases.

Preet Bharara:

So sometimes, as we had mentioned, the free exercise clause and the establishment clause intersect or overlap or collide depending on the circumstances. So I’m going to give you an example and tell me how courts have thought about it and what the constitution really contemplates. When we’ve had these controversies about mandatory school prayer, is that about the establishment of religion or the free exercise of religion or both?

Noah Feldman:

In the school prayer cases, the constitutional provision that was at issue was the establishment of religion because in the 1960s, so very recently in our long-term constitutional history, the Supreme Court decided that having prayer in schools effectively coerced students into praying even if it was in theory optional, and that the government was effectively writing or mandating a prayer, and that by doing so it was effectively establishing a religion. The analogy would be it’s sort of like you’re making everybody go to church whether they want to go to church or not, because you’re sitting there in the classroom and there’s this prayer and you have to be there for it.

Preet Bharara:

But lay people might ask, “Isn’t that also a violation of free exercise because I choose to practice and pray differently?”

Noah Feldman:

That’s a great point. And if you think of free exercise also in terms of not forcing you to do something you don’t want to do, then you could characterize that as a free exercise right. And I don’t think only lay people would have that view. I mean, I think if today school had still existed and we had no establishment clause and someone had gone to the courts and said, “Hey, this violates my free exercise of religion,” maybe the court would’ve been open to that. The reason that it was decided under the establishment clause though, is that at least initially the establishment clause was about what the government can’t make you do, and the free exercise clause is what they can’t prevent you from doing. As that distinction has weakened, you could imagine framing that as a free exercise claim.

Preet Bharara:

Okay, let’s say I belong to a religion in which polygamy, having multiple spouses, is not only permitted but encouraged. And I can say it as part of my good faith religion, that has been a controversy that it’s made its way through the courts in this country. How does the constitution contemplate thinking about that?

Noah Feldman:

That turns out to be a really controversial and tricky question.

Preet Bharara:

Yeah, that’s why I asked it.

Noah Feldman:

Yeah, and it’s a great one. So begin here. From the beginning, even people who were very strongly in favor of having free exercise of religion never thought that you could do anything that you wanted that your religion mandated. And the classic example is that were given for example by the courts were the government would still be able to punish you if you said, “Well, my religion demands that I sacrifice my children” or, “My religion demands widow burning.” Nobody would say then or now, “Oh, well, then there’s nothing we can do about it. Those practices have to be permitted.” So there’s always been some limitation. And the way-

Preet Bharara:

But the question is, where you draw the line?

Noah Feldman:

Exactly.

Preet Bharara:

Right.

Noah Feldman:

And the way we express that in modern constitutional parlance is to say that if the government has a compelling interest in stopping you from doing the thing that you want to do based on your religion and the law in question is narrowly tailored to achieving that interest, or another way to put it is the government has adopted the least restrictive means of protecting that interest, then the government can do it.

So in the case of plural marriage or polygamy, the government would have to show that it had a compelling interest in blocking people from engaging in plural marriage and that there was no narrower way to do it other than prohibiting plural marriage. Historically, the courts had said that the government did have a compelling interest in prohibiting plural marriage. This was adjudicated in the Supreme Court already in the 19th century when the LDS church had plural marriage. But I think today we might think about the issue a little bit differently, and there’s a reason it hasn’t been back to the Supreme Court recently. I think the Supreme Court is kind of nervous about taking on that case because I think given that under a current Supreme Court doctrine, you can have sex with whoever you want and you can have sex with as many people as you want, and you can live with a bunch of people and have sex with them if you want to. It’s kind of hard to explain why the government has a compelling interest in prohibiting you from calling some of those people your husbands or your wives.

And so it wouldn’t shock me if at some point in our lifetimes and certainly in our kids’ lifetimes, the court did revisit that issue and maybe come to a different conclusion than it reached back in the 1800s.

Preet Bharara:

Well, that’s super interesting, and I hadn’t thought about that. Is there any case of controversy that you’re aware of in a lower court somewhere that raises this question?

Noah Feldman:

It comes up occasionally especially in Arizona and Utah where there are some LDS affiliated groups who are not part of the mainstream Church of Jesus Christ of Latter-day Saints. Sometimes they’re called FLDS, Fundamentalist Latter-day Saints, over their other smaller breakaway churches. And they maintain the practice of plural marriage or as they call it, celestial marriage, going all the way back to early Mormonism. They get prosecuted by local prosecutors. As often as not, those prosecutors are themselves mainstream LDS members, and they sometimes will defend themselves on constitutional grounds. And so far, we haven’t had a case going all the way to the US Supreme Court with the justices agreeing to hear a case like this.

The other situation in which it could potentially arise, although I don’t think it hasn’t in the US, but it has arisen this way in Europe for example, is where refugees come from countries where a plural marriage is lawful like Afghanistan or Iraq. They come with their partners and they say, “Well, I want to get refugee status for my partner, for my wife let’s say, or my husband,” though they belong to a plural marriage. Again, that hasn’t been adjudicated here, but you could imagine it being let’s say a more sympathetic way for the issue to reach the courts.

Preet Bharara:

So something that may be a little less dramatic depending on your point of view, let’s say you are a Sikh who wears a turban by religion or you’re Jewish and you wear a yarmulke because of religious tradition in practice, but either the armed forces or the local police department forbids the wearing of something on your head, is that the same analysis?

Noah Feldman:

So this is a great example of where we’ve evolved and improved, because in the 1980s, this was litigated all the way to the US Supreme Court. There was an Air Force officer who was an Orthodox Jew and wear yarmulke and military regulations said no. It went to the Supreme Court. And the Supreme Court said that because the military deserves special deference in deciding what it needs when it makes its uniform rules, he did not have a constitutional right to wear the yarmulke. But subsequently, the regulations were changed voluntarily by the military to allow the yarmulke. And then over time, that expanded and now it’s permissible for Sikhs to wear turbans.

And just recently in the last few years, the first Sikhs graduated from our military academies actually wearing turbans. There was a very moving, to me at least, set of photographs in the paper. I think that’s an example of where we’re making good progress. I mean, there was no rational reason really to prohibit Sikhs from wearing turbans. Sikhs have a long and distinguished military history among other kinds of history. And no one thought that Sikhs underperformed in the British or in the Indian military by virtue of wearing turbans. And so it was really a matter, I think, of cultural prejudice and we gradually overcame it and an example of our improvement based on our growing diversity.

Preet Bharara:

Yeah. This was a point of personal interest. My father’s Sikh, and he always would wonder why aren’t they allowed to wear turbans in the American military when there’s a disproportionate number of Sikhs in the Indian military, and as you point out, served admirably in many theaters of war.

So let me give you another example and then we’ll move on to other things. What about if my religion tells me that I not only can but must on certain occasions use a forbidden drug? And I’m thinking about peyote in particular because the very first oral argument I had in moot court when I was in law school was the famous peyote case, Employment Division v. Smith, I think.

Noah Feldman:

Yep.

Preet Bharara:

From 1990. First all-nighter I pulled in law school writing a brief about that case. How do we think about those things?

Noah Feldman:

So when the court asks the question of how to handle a case where there’s a law, a general law that outlaws something like taking drugs and someone says, “Well, but you see my religion says I have to take this particular drug,” the court has in recent years been trying to figure out what test to apply.

So in the olden days, before the Smith case that you mentioned, it applied the principle that I mentioned earlier. The government had to have a compelling reason that was narrowly tailored. But then in the case that you did your moot in, Justice Scalia changed the norms and said, “Actually, the government doesn’t have to go to such an extent to prove it. As long as the law is neutral, not targeting religion, and is generally applicable, applies to everybody, then you don’t get an exemption. End of game.” And it’s amazing today that Justice Scalia, then the conservative intellectual leader of the court, issued this opinion because today conservatives want more religious exemptions, but we’ve forgotten that it used to be 180 degrees the opposite. It used to be that liberals liked religious exemptions because liberals were worried about small dispossessed minorities being subject to oppression. So liberals cared about those minorities and wanted to give them religious exemptions. And Conservatives tended to favor the state, and so they didn’t want to provide exemptions.

Today the situation is turned on its head and liberals are skeptical of religious exemptions and conservatives really like religious exemptions. One of the possibilities is that the current Supreme Court will itself take us back to something closer to the older regime. Or it may develop, there’s some possibility in recent concurrence by Justice Barrett where she’s hinting, I think, it’s a very oblique hint, but I think she’s hinting that there might be some in between compromise position available. But that’s actually one of the most pressing issues in the law of church and state right now. What rules should be applied by the courts when a neutral law prohibits something like peyote? So it’s a really interesting and a rich question.

Preet Bharara:

Yeah. So let me ask you about one more example then we’ll sort of update where we are in the world at the moment. If there’s separation of church and state, people will ask, why is it saying “In God we trust” on our money?

Noah Feldman:

Great question. So first of all, for a long time it didn’t. That’s a relatively later development.

Preet Bharara:

That wasn’t from the beginning. It was not-

Noah Feldman:

It was not from the beginning, but the reason-

Preet Bharara:

Including “One nation under God.”

Noah Feldman:

Yeah, exactly. The “One nation under God” part of the Pledge of Allegiance didn’t come until the ’50s. And that’s also when the US officially adopted “In God we trust” as our national motto. This was part of anti-communism. The idea was, “Well, the communists don’t have God, and we do. So we’re going to put it into our national motto.”

That said, the question there is whether what you might call a purely symbolic expression of religion by the government counts as a violation of the establishment clause, because mentioning God on your money is just symbolic. The money’s worth the same amount. It’s not like anybody that I know says, “Well, I can’t use this money because it says ‘In God we trust’ on it.” So the question is, does it somehow violate the establishment clause anyway? And the Supreme Court has had two ways of addressing that and they were both interesting and important until last June when they were both overturned by the Supreme Court. And one was to say, does the law have a primarily secular purpose? In which case it’s fine. And so in the case of “In God we trust,” you’d have to explain that there was a secular purpose to that, which is tricky. And that’s one reason the court wasn’t very satisfied with that law.

Preet Bharara:

Because there isn’t one, right?

Noah Feldman:

Yeah. And then the other test, Justice O’Connor’s test, was is the government endorsing religion by sending a message to some people that they are special favored insiders because they belong to the majority religion and to others that they are outsiders because they’re disfavored? And under Justice O’Connor’s test, you could argue that the money doesn’t make anybody feel genuinely like an outsider. I think that’s what Justice O’Connor would’ve said. But of course an atheist could’ve said, “Well, no, it makes me feel excluded because it’s implying that we all trust in God, and I myself don’t trust in God.”

Preet Bharara:

I’ll be right back with Noah Feldman after this.

So on that note, let’s come to the present time. Through a couple of cases, maybe you can explain how far we’ve come, where we’re going, how far we are from the time that you wrote your book. There’s a case that is drawn some attention involving the 10 Commandments in school. Where are we on this issue of jurisprudence separation of church and state in America today?

Noah Feldman:

We are in the middle of a revolution, a conservative judicial revolution. It covers a lot of topics. One of the topics it covers is church and state. So if you think back to last June, everyone in the country was fixated on the way that the Supreme Court overturned Roe v. Wade given the huge importance of that decision. It’s deeply controversial nature in the way it affects women’s rights to choose. It makes sense that we were so focused on it. But just a few days after the court decided the Dobbs case, it also decided a case called Kennedy against Bremerton, in which the court said that all bets were off when it came to the establishment clause. They overturned the two tests I just mentioned, the secular purpose test as well as the endorsement test and they said, “What we now have is a history and tradition test.”

And when my students asked me this past fall when I was teaching First Amendment, “Okay, well thanks, professor, but what does that mean?”

Preet Bharara:

What does that mean. Right.

Noah Feldman:

I said to them, I shrugged my shoulders and I said, “We’ll see,” because it could mean almost anything. And so the reason that the Texas Senate has just passed a law, I mean it’s not yet become a law, but passed a bill, still has to be approved by the House and by the state governor, that says that the 10 Commandments must be displayed in every classroom in Texas, public school classroom in Texas, is that they are consciously and intentionally trying to test the boundaries of whether the separation of church and state still exists. I mean, back in 1980, Kentucky passed a law like that, and the court just struck it down and said, “Well, this is obviously a violation of the separation of church and state. It doesn’t have a secular purpose.”

Preet Bharara:

Before last June, the 10 Commandments being required to be in schools would’ve been a no-brainer struck down, right?

Noah Feldman:

Correct. No-brainer. When the Supreme Court decided that in 1980, it did it in a relatively summary per curiam opinion where they just said, “Yep, this is obviously a no.” There were some dissents, but they just, “This is obviously a no.” So that was the state of play from really say the late 1960s until this past June. But now we don’t know what the law is going to be. And when the court evaluates this question, if the law passes, it will eventually probably make its way to the Supreme Court. It’s going to have to say… The justices are going to have to decide, “Where is the line?” Because if they can make you have the 10 Commandments, can they also make you pray again? Is school prayer going to be back on the table? Well, that will be the next thing.

Preet Bharara:

I was going to ask you that. Will it?

Noah Feldman:

Yes. I mean, I think it will. There are different ways that it could get there. So in this case from last summer, the Kennedy against Bremerton case, the facts involved a high school football coach who was praying with students before and after the game, including in the locker room and on the 50 yard line. And again, this looked under a traditional doctrine like a no-brainer. He’s paid by the government, so he’s a teacher in a school, the coach is a teacher, and this was a collective prayer. But the court said, “Well, not so fast. What he was doing when he was praying wasn’t actually an exercise of government authority. It was just his individual personal right to pray. It wasn’t part of his job.”

Preet Bharara:

It was his free exercise. [inaudible 00:43:13] overlap again.

Noah Feldman:

It was his free exercise. And the students who were joining him, the players who were joining, it was also part of their free exercise. There’s no reason to worry that a high school football player would feel coerced by the fact of their coach praying because as everybody knows, high school coaches have no power over their players, which is not my memory of high school athletics.I can’t think of much I wouldn’t have done for my coaches to get playing time. So I don’t think that’s a very realistic account of the psychology of the moment nor of the power dynamics of the moment. But that’s what the court said. And while it was at it, they said that all the old tests were no longer the tests.

Preet Bharara:

Right. But the 10 Commandments’ requirement wouldn’t you say is a far cry from the football coach’s prayer example?

Noah Feldman:

Oh yeah, because there’s no individual exercising religious choice here. This is just the government itself overtly saying, “We must have this religious symbol in the courtroom.” The reason they’re starting with that and not with school prayer is they think maybe they can get the justices, maybe they can get five justices to say, “Well, look, it’s just a symbol. It doesn’t make anybody do anything. If you don’t like it, don’t look at it. It’s purely symbolic, so it’s fine.” And then once that happens, some state legislature, maybe it’ll be Texas, maybe it’ll be one of the other states in the south will pass a law saying, “And now we’re having prayer in schools” and bring that back to the justices.

So this is what happens when you have a constitutional revolution. The court announces, “Hello everybody, we’re in a new world.” That’s kind of like a memo to the states. And the state legislatures hear the memo, they get the memo, they understand the assignment, and they start passing laws that mandate religion in various different ways and then they see how far they can go. It’s sort of similar to-

Preet Bharara:

The abortion.

Noah Feldman:

It is similar actually to post Dobbs where states say, “Oh, wait a minute. We don’t have to provide an exemption for rape or incest. We’re just going to ban all abortions and we’ll see if the courts uphold it.”

Preet Bharara:

So you mentioned that this Kennedy versus Bremerton case talks about and purports to rely upon history and tradition. There’s some of that also in the Dobbs decision. Are those different analyses or are they overlapping and coming from the same kind of place?

Noah Feldman:

They’re technically a little different, but I think you’re right to say, Preet, that they are coming from the same kind of place in multiple cases that the court decided last term. The Dobbs case, the church and state case, and in the New York Guns case, the Bruen case.

Preet Bharara:

Right. Yeah.

Noah Feldman:

In all of those, the court purported to look at history. And it didn’t do it in the sort of very strict originalism way when you go back to the founding and you try to reconstruct what the people who ratified the constitution thought the words of the constitution meant. Instead, they ranged very widely over historical sources going all the way back to the Middle Ages and then all the way up to the present, so instead of focusing on just the years of the founding. And in each of these cases, the court sort of systematically discounted any historical evidence that didn’t go the way that justices wanted it to go. I mean, I hate to say it’s so [inaudible 00:46:16]. That’s just the truth.

Preet Bharara:

It allows the outcome you favor.

Noah Feldman:

Yeah, it really enables the outcome you favor, which makes a mockery of the idea of originalism. Because when Justice Scalia and others pushed for originalism, their rationale was that history is full of facts and that therefore a court that relies on history won’t be making it up as it goes along. It’ll be constrained. It’ll be forced into a kind of judicial restraint. And what you’re seeing here is the exact opposite of that, where the court can just pick and choose and say, “Well, there actually were restrictions on gun ownership going all the way back to the Middle Ages, but we discount those for the following reasons.” And ditto in the church and state case where you can look at the historical record and you can emphasize different elements of it because the historical record is always complicated. So this kind of gives the lie to the idea that history is objective if anyone ever believed that. And it shows that the justices can produce really any result they want under the guise of relying on our historical tradition.

Preet Bharara:

Yeah, I mean, if you’re endearing to certain principles of construction interpretation, whether it’s originalism or something else as a matter of logic, it should sometimes be the case that the outcome you prefer as a citizen or as an ideologue of a certain stripe, you can’t get to because of your neutral principle of interpretation. So sometimes by your own rules, the result is going to be disappointing to you. How often has that happened in the past? And is it never happening at the moment?

Noah Feldman:

It’s definitely not happening right now in the life of this Supreme Court. I mean, this conservative majority has consistently over the last few years, just made every case come out the way they have wanted it to. And that is reason for suspicion. Historically, there have been some moments when some justices and sometimes the majority of the court relied on history to produce outcomes that it seems as though they might not have preferred. Justice Scalia would sometimes himself do this in criminal law cases where he would end up with a more lenient conclusion, which was not his natural disposition. Justice Thomas, although what his preference are is less clear, has also in some cases around juries and what they could and couldn’t do ended up in a position that was more liberal or lenient than you might otherwise expect him to have reached.

But in these cases, these high profile, big ticket cases, the court has managed to make their history come out however it wants. And just to use the most brutal example of this, I promised I wouldn’t talk about the Second Amendment. I’m just going to mention it. The Second Amendment is one of the only provisions in the whole constitution that tells you its purpose right in it. It tells you a well regulated militia being necessary, dot, dot, dot. The right of the people to bear arms shall not be infringed.

So what they’re saying is the right to bear arms literally is your right to participate in a well-regulated militia. That means a state militia. That doesn’t mean three guys with AR-15s. It means a government run militia that is well-regulated. It has nothing to do, and had historical context, had nothing to do with handguns or even with other guns that one would have in one’s home for one’s personal use. The goal was to enable there to be these militias because the founders who had made a revolution thought that it was safer to have local militias controlled by the state than it was to rely on a single federal standing army. And the court just flat out pretends that that’s not in the constitution in the course of its supposedly historical opinion. And that’s just the most errant, shocking, and outrageous example of historical inaccuracy and really willful blindness.

Preet Bharara:

I want to ask you a broad general question and then move on to another topic. How important are constitutions? I ask because there’s the famous quote from Judge Learned hand who said, “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.” I should note for the audience that you add a hand in helping Iraq draft its most recent new constitution. Do they matter given how in this conversation we’ve discussed how things change and how people can become outcome determinative no matter the language in the constitution itself?

Noah Feldman:

Constitutions matter a lot, but they’re not the only thing. The reason they matter so much is that at a minimum, a constitution shapes what the conversation is going to be like within the given country when the people in that country try to figure out how they’re going to govern themselves. And at its essence, a constitution is just a document that records the nature of a conversation with a kind of agreement at a given moment in time to the question, “How do we want to govern ourselves?”

Now, no group of people who wants to be self-governing can be unchanging. It’s not realistic, it’s not doable. Our country looks nothing like it looked in 1787 when it was a tiny little I-95 nation, but not even all of binary 5 because it didn’t go all the way down to Florida. So it was a tiny little nation, and now it’s a global superpower. The economy was unimaginably different. Our values were unimaginably different. It was a slave republic in which large numbers of people, African Americans were enslaved and treated as less than full people. So we don’t believe the same things we believed then. Women weren’t allowed to vote.

So the reality is a country has to update itself, and that means it has to update its constitution. Now in a lot of sensible countries, they do that by amending the constitution. Our constitution is so hard to amend that we’ve updated by a process of interpretation. And so that makes the interpretation that the Supreme Court puts on the constitution makes it into a kind of part of our constitutional scheme or our constitutional practice. And because that happens, the words of the original constitution do not completely bind us. We are involved institutionally in a practice of updating, but we do even that in constitutional ways by relying on the Supreme Court, which is an institution created in our constitution.

But if you look at Iraq, Iraq still has the same constitution it had when it was enacted in 2005. Some of those provisions are highly operative. The Iraqi still elect their government the same way that’s specified in the constitution. The country is held together with a kind of strange form of federalism designed to favor the Kurds, and the Kurds have not fully separated themselves from the country. So in that sense, the constitution has worked. But on the other hand, for some years after the constitution was enacted, there was still civil war in the country. And the country guarantees all kinds of basic rights in the Iraqi constitution. You would be a hard press as an ordinary Iraqi to get those rights from the courts. You might get them, but you really might not get them because the Iraqi courts have all kinds of practical problems and are, in certain respects, corrupt. So the constitution matters there, but it’s not the only thing. It’s not sufficient to keep a country operating and to make it work.

Preet Bharara:

I’m going to engage in a segue here because I do want to talk about something else that you’ve been writing about and I think is perhaps the most important potentially story of our time, and that is artificial intelligence AI. Would AI write a decent constitution?

Noah Feldman:

Not yet.

Preet Bharara:

No?

Noah Feldman:

I mean, I’m very impressed by many of the things that GPT-4 can do in the realm of language. Translations are almost unimaginably good, even relative to the earlier versions of ChatGPT. It still can’t do well on my exam, but it produces something that it’s shaped like an answer. It’s not a passing answer, but it’s shaped like an answer. There are a range of language-based skills that it’s going to get better and better at. It could probably produce a credible mishmash of different constitutional forms, but so far the language models at least don’t have the capacity to incorporate the structures of formal logic that would the different parts of a constitution fully coherent with each other.

But, and here’s the main point, Preet. We need a constitution as it were as a society that helps us understand how we’re going to deal with AI. So I wouldn’t ask, “Can AI write a constitution?” but can we write a constitution for a world in which AI plays an increasingly significant role? That seems to me, taken at the metaphorical level, one of the most important questions for our society going forward. Can we self-govern in a way that takes account of the transformational effects that AI is already starting to have and which it will have where we preserve the values that we really care about and preserve our autonomy and our dignity and our safety while still taking advantage of the really good things that AI can provide?

Preet Bharara:

Let’s talk about something even more existential, whether we can preserve our existence. You cite recently to a study which is imperfect and you acknowledge the imperfection of the poll, but you do say, “In a well-publicized 2022 survey of AI researchers, nearly half of respondents said that there was a 10% or greater chance that AI would eventually produce an extremely bad outcome along the lines of human extinction.” What’s that about?

Noah Feldman:

It’s pretty shocking to me.

Preet Bharara:

10%.

Noah Feldman:

Yeah, 10% is a lot of people.

Preet Bharara:

10%, things happen a lot.

Noah Feldman:

Yeah. 10% is a lot of probability. Exactly.

Preet Bharara:

And these are not random people. These are AI researchers such as they are.

Noah Feldman:

Correct. And it’s really very unusual if you think about it for the people who are at the forefront of developing a new technology that is being let loose in the wild, if you will, to say that they think there’s a reasonable probability of it destroying everything around us. Because you might ask, “Then why are you doing it?”

Preet Bharara:

Yeah. Do you think back during the Manhattan Project and when the Soviets were trying to get the bomb, if we had polled nuclear scientists, would we have a better or worse poll than this?

Noah Feldman:

I think if you’d asked the American scientists who were participating in the Manhattan Project, they would’ve said, “If it falls into the wrong hands, the consequences could be disastrous for the universe. But right now the US is fighting against Germany and Japan, and it’s an existential struggle. Already we need to do everything we can.”

Preet Bharara:

We need to find something that has its own independent, separate future existential threat possibility to overcome the current existential moment, I guess.

Noah Feldman:

Yeah, exactly. And then when the Soviet Union got the bomb, lots of scientists actually thought to themselves, “This is good, because if there’s two sides that have the threat of mutually assured destruction, they’ll counterbalance each other.” But I think it’s also true that famously Robert Oppenheimer, who ran the Manhattan Project, quoted this passage of the Philosopher Santayana “I Am become Death, destroyer of worlds,” which is a passage that Santayana is attributing to Hindu tradition. Oppenheimer’s concern, and a genuine and legitimate concern of many of the nuclear scientists who were involved was, “What have we done? We’ve loosed this destructive power, which in the wrong hands proliferating could bring about the end of the world.” I think they were right to be concerned about that. But they were not doing this because they had for-profit companies that were doing developing cutting edge technology, right? I mean, it’s a very, very different environment. And they were doing it under the highest conditions of secrecy and under government control.

Today what we have is privately funded for-profit in some cases, non-profit in other cases, companies developing this technology. So my takeaway from that study is that the people who know the most about this are genuinely concerned about the bad consequences that AI can have. And for that reason, we need to start thinking immediately about regulation. And in the long run, that will almost certainly have to be governmental regulation. But it takes the government, as you know better than I, a good while before it can actually generate credible and effective regulation.

Preet Bharara:

The government doesn’t even know what to do about Section 230.

Noah Feldman:

Perfect example.

Preet Bharara:

Right?

Noah Feldman:

Exactly.

Preet Bharara:

It’s too hard for the government to deal with technology.

Noah Feldman:

Yep. And so probably what this means… I mean, not probably. In my view, definitively what we need is we need self-regulation in the first instance to cover the time gap between right now when the dangers starting to build and whatever that time is in the future where the government gets its act together and produces regulation that actually makes us safe. So I think the time is now for genuine and meaningful safety-oriented self-regulation.

Preet Bharara:

Can we be more specific about what the perceived possible threat is? It’s very fast for you and me to say extremely bad outcome along the lines of human extinction. Is the concern that AI will, as we’ve seen in movies in the past, take on a life of its own and be autonomous and do bad things? Or are we concerned that foreign powers might use AI as a level setter and weaponize it in a way that would be harmful and lead to mass casualties in the United States or elsewhere. Both of those things, something in between? What are we talking about when we talk about the threat?

Noah Feldman:

So that phrase, I mean, we’re using it, but we’re taking it from that study. This is the question that they asked people. The extinction of humanities is the example they gave people on the poll where they said, “What’s a bad outcome?” So you and I, for what it’s worth, we didn’t make that phrase up.

I think fears cover the gamut. There is the danger, as you mentioned, of foreign powers, including terrorist organizations being able to weaponize AI in various ways. There’s the danger of what people in the field call misalignment, which is a profound danger, which is where the AI no longer is performing the task that those who’ve programmed the AI want it to perform, but is performing some other task, and potentially in which an AI that is setting out to perform a task ends up misleading those who are training it in some way in order to achieve some objective.

That’s plenty scary and plenty dangerous even before you get to the kind of terminator fears of AI that self programs and through self programming develops further and further versions of itself and then in some way attains some independent intentionality. I mean, I think when you get to that, you have to really grapple with some hard philosophical questions like, “Are we just projecting our own instincts onto this machine?” And we imagine that if we had a lot of power, we would try to dominate everybody. And so then we imagine that this machine would gain a lot of power. They would want to dominate everybody if it had such a thing as agency and desire. It seems to me entirely possible that the bad and dangerous things that could happen won’t be the ones that we are anticipating based on the idea that the AI would behave like us. They might be different things. They would nevertheless be potentially bad for humans.

And then there are the dangers associated with “responsible” uses in terms of technologies upending existing social realities, a technology that fundamentally changes the way economic power is distributed, the way jobs are distributed, the way wealth is distributed. Those things can also be substantially destabilizing in the same way that changing the power balance between countries can be destabilizing.

Preet Bharara:

Do you think with respect to this issue at this moment there would be bipartisan support for some reasonable regulation? Or do you think, because I don’t have a view yet, does this fall apart on partisan lines in some way that I don’t understand?

Noah Feldman:

This is a very delicate and important question. I think if you got all the people in both parties on the hill together, all [inaudible 01:02:05] 35 of them and said to them, “In your perfect world, what would the regulation look like and then designed it?” you could probably create a meaningful bipartisan consensus. But we’re in such a polarized political moment now that neither party wants the other party to get wins. And so there are some areas, I think social media regulation is one of them where I think you could probably get consensus in certain respects, but then each party would have to be okay with the other party getting some credit. And neither wants the other party to get credit. So it is possible to have a kind of perverse outcome where even in the presence of consensus you don’t get regulation adopted.

Preet Bharara:

So my thought is, and it’s maybe a little creative, is that if people started to spread the word that AI was hatched in a Chinese lab, you get a lot of bipartisan support. What do you think?

Noah Feldman:

I mean, look, you’re right that as a…

Preet Bharara:

I’m being kind of facetious, but…

Noah Feldman:

It’s sad to say that you’re right that it is historical matter, choosing an enemy is a helpful way of consolidating and organizing people in politics. But that’s bad. That’s exactly what we don’t want to do. I mean-

Preet Bharara:

That’s why I was being facetious. But it is true that on some things like that, you hear people on both sides of the aisle talk about TikTok as a national security threat. There’s very little, that both sides will agree upon, other than, as you point out, sometimes a common enemy, which China seems to have become.

Noah Feldman:

It’ll be very interesting to see if that way of politicians talking about TikTok actually translates into some actual ban. Because when Donald Trump began to approach that, he backed away from it ultimately. I think many of the world’s teenagers or the country’s teenagers don’t think that TikTok amounts to a threat from China. And in that sense, there may be a mismatch between the political rhetoric on the hill and public opinion, and it’s always interesting to see in those circumstances whether regulation does or doesn’t emerge.

Preet Bharara:

Do you have a view of the likelihood of a 10% or less or higher bad outcome from AI?

Noah Feldman:

I don’t. The reason I don’t have the view is that I don’t consider myself sufficiently expert in the trajectory of the technology to assign a number. So I can understand when people who are experts in the field describe to me for example, that if you can train an AI to improve itself, then you can create a recursion where various versions of AI produce better versions, produce better versions, produce better versions in which the human role gradually could potentially recede. And I can see the logic of the risk associated with that. But in terms of assigning probabilities, I feel like I’m not sufficiently expert. And I think even experts themselves differ about the probabilities and the scenarios, and that’s its own challenge.

Preet Bharara:

But just so we’re clear and we don’t sound like doomsayers, do you also appreciate the possibility of AI doing enormous good not just in the United States or in wealthy countries, but in countries that are not so wealthy?

Noah Feldman:

Oh, absolutely. I mean, I think this shouldn’t go without saying we should say it. The potential human gains from AI are enormous. Take human communication, which in many ways is a barrier to our getting along with each other as human beings. Already translation capacities within the generative language models are, as I say, almost unimaginably good. Recently, someone sent me a very beautiful, long, modern poem in Persian. Had I sat there with a dictionary for three days, maybe I would’ve made some progress through it. I typed it in and it gave me a beautiful translation, and it was much better. I put it also into Google Translate and an earlier version of GPT, and it was nowhere near is good, not even slightly comprehensible.

Now, imagine that you’ve also got voice to text and text to voice, and you’ve got a little earpiece, and now you’re in China, I don’t speak Mandarin, and I’m suddenly able to communicate to people in something very close to real time. It’s like carrying around a personal simultaneous translator, but faster and better in my brain.

Preet Bharara:

Yeah. Well, I mean, look, there’s so many use cases. You think about 911 calls and somebody calling into an operator who doesn’t speak English or doesn’t speak English well, and you could have immediate, simultaneous translations save people’s lives. I mean, there are a million opportunities.

Noah Feldman:

Yeah. There are many, many, many scenarios that go beyond mere efficiency. I mean, there’s a lot of areas also where AI’s contributions will be inefficiencies.

Preet Bharara:

In that example that you just gave, some interpreters going to be out of work.

Noah Feldman:

Absolutely. So there’s no question that all of these things are going to have real world redistributive effects the way transformative new technologies do. And we need to be thoughtful and careful around those because those are real human beings who have real jobs who need still to be able to have meaningful work. And I think humans need to be able to do meaningful work. I mean, those kind of AI tech utopians who see AI is eventually performing most of our jobs. I actually think that utopian view isn’t as utopian as it sounds on the surface, because I actually think that just sitting around in leisure time all the time wouldn’t be good for us as humans. At least I don’t find that it’s good for me when I have too much leisure time on my hands. You want to have a nice golden mean, the right amount of time to relax, but not all of your time to relax and ditto for your work.

And so I think for humans, work is how part of how we make meaning in our lives. So for sure, there are many, many long-term consequences that need to be taken very, very seriously. What we need to work for here, as in other areas of technology, is what I call responsible disruption. New technologies are disruptive and that’s good, but we have to disrupt responsibly or the social consequences can be really, really, really disastrous.

Preet Bharara:

I could talk to you for hours and hours, but I’m sure you have books to write and people to teach. Thank you for your time, Professor Noah Feldman. Really appreciate it.

Noah Feldman:

Thank you, Preet. It’s a pleasure.

Preet Bharara:

My conversation with Noah Feldman continues from members of the CAFE Insider community. We discussed his experience testifying at the public hearings for Donald Trump’s first impeachment. To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

I came across something on Twitter the other day that took my breath away. So I want to end the show this week by sharing it with all of you. All of you will be familiar with the context. It was November 22nd, 1963 in Dallas, Texas, the day that President John F. Kennedy was shot and killed. The tragic scene is still fresh in our minds. Even if we weren’t alive or conscious then, the images of President Kennedy’s motorcade as it made its way through Dealey Plaza, the way that Secret Service and local law enforcement sprang into action. The swearing in of a new president on Air Force 1 mere hours later. Lesser known is the steadfastness of a charity hospital in Dallas called Parkland. That steadfastness was not lost on the hospital’s administrator, a man named CJ Price, and he made his pride known in a memo that he sent to hospital staff on November 27th less than a week after the assassination of the President.

This is what he wrote. “To all employees, at 12:38 PM Friday, November 22nd, 1963, President John F. Kennedy and Texas Governor John Connolly were brought to the emergency room of Parkland Memorial Hospital after being struck down by the bullets of an assassin. At 1:07 PM Sunday, November 24th, 1963, Lee H Oswald, accused assassin of the late President, died in an operating room of Parkland Memorial Hospital after being shot by a bystander in the basement of Dallas City Hall. In the intervening 48 hours and 31 minutes, Parkland Memorial Hospital had, one, become the temporary seat of the government of the United States. Two, become the temporary seat of the government of the state of Texas. Three, become the sight of the death of the 35th President. Four, become the sight of the ascendancy of the 36th President. Five, become sight of the death of President Kennedy’s accused assassin. Six, twice become the center of the attention of the world. Seven, continue to function at close to normal pace as a large charity hospital.”

“What is it that enables an institution to take in stride? Such a series of history jolting events. Spirit? Dedication? Preparedness? Certainly all of these are important, but the underlying factor is people. People whose education and training is sound. People whose judgment is calm and perceptive. People whose actions are deliberate and definitive. Our pride is not that we were swept up by the whirlwind of tragic history, but that when we were, we were not found wanting. Signed CJ Price, Administrator.”

What a beautiful and succinct way to bring home a theme that I have found to be true in every single job I’ve ever held. In the end, people make the difference. It’s a principle that I believe so deeply that I concluded my own book with these words, “The law cannot cancel hate or conquer evil, teach grace, or extinguish passions. It takes people, brave and strong and extraordinary people.” Thanks to a local hospital administrator whose name did not make the headlines for reminding us of this simple truth.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Noah Feldman.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the #askpreet. Or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer-Staton, Noah Azulai, Nat Wiener, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.