Arthur Selwyn Miller**
The time has come for lawyers to confront the question of whether nuclear weapons—their manufacture, deployment, and use—can be justified under either constitutional or international law. Since the explosions of primitive atomic bombs at Hiroshima and Nagasaki in 1945 it has been assumed, without much thought, that there is nothing unlawful about those weapons. This paper is a preliminary statement that suggests the contrary. It is predicated on two observations of Alfred North Whitehead: “The doctrines which best repay critical examinations are those which for the longest period have remained unquestioned;” 1 and “almost all really new ideas have a certain aspect of foolishness when they are first presented.” 2 What follows is a brief outline in which I contend that it is not really foolish for law and lawyers to contribute to the growing debate about nuclear war.
People throughout the world live today under the threat of a nuclear arms “race” that is madly out of control. That peril has at long last—almost forty years after the bombs dropped on Hiroshima and Nagasaki—percolated into the thinking of growing numbers of men and women who have swelled into a spontaneous popular movement against the ultimate danger. Their motivations, as perceived by Ambassador George Kennan, include:
* Reprinted, with permission, from Nova Law Journal, Volume 7, Number 1 (1982).
** 1982-83 Leo Goodwin, Sr., Distinguished Visiting Professor of Law, Center for the Study of Law, Nova University; Professor Emeritus of Law, George Washington University. This essay is based on the author's work in progress, a book tentatively entitled Getting There From Here: Constitutional Changes for a Sustainable Society.
1. Whitehead, as quoted in Miller, A Note on the Criticism of Supreme Court Decisions, 10 J. PUB. L. 139 (1961).
2. Whitehead, as quoted in A.BRECHT, POLITICAL THEORY: THE FOUNDATIONS OF TWENTIETH-CENTURY POLITICAL THOUGHT 262 (1959) (paperback ed. 1967).