Nuclear Weapons and Law

By Arthur Selwyn Miller; Martin Feinrider | Go to book overview

15.

Protecting Posterity *

Aviam Soifer**

Professor Arthur S. Miller, a master of the genre of creative constitutionalism, contributes an impressive example in his article, Nuclear Weapons and Constitutional Law. He advances several provocative arguments for possible constitutional limits on United States participation in the nuclear arms race; these arguments, undoubtedly, will stimulate much thought and development—unless a nuclear catastrophe intervenes.

Miller identifies a particular kind of complacency or cynicism among lawyers that allows many of us to assume that nuclear weapons simply are more powerful ways to kill people. It is surely important to challenge this assumption. On a more basic level, the threat of nuclear disaster invites all citizens—not merely lawyers and judges—to consider and to construe the text and meaning of the United States Constitution.

Law unquestionably serves as a secular religion in our democracy 1 and de Tocqueville's recognition that important political issues tend to

* Reprinted, with permission, from Nova Law Journal, Volume 7, Number 1 (1982).

** Professor of Law, Boston University School of Law. This sketch is dedicated to my son Raphael Moshe. In one year he already has given his parents much to consider and to hope for the future. I would also like to express gratitude to the W.K. Kellogg Foundation. A Kellogg National Fellowship allowed me time to read and think about the issues explored below.

1. See generally C.MILLER, THE SUPREME COURT AND THE USES OF HISTORY 170-88 (1969); M.LERNER, AMERICA AS A CIVILIZATION 442-43 (1957); Corwin, The Constitution as Instrument and as Symbol, 30 AM. POL. SCI. REV. 1071 (1936); T. ARNOLD, THE SYMBOLS OF GOVERNMENT 59-71 (1935) and Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1 (1934). Of course, much of Arthur S. Miller's impressive output is also directly on point.

As a young man, Abraham Lincoln urged other young men of Springfield, Illinois to let reverence for law “become the political religion of the nation….” R.HOFSTADTER, THE AMERICAN POLITICAL TRADITION 103 (1948). Alexis de Tocqueville, writing at the same time, but with a bit less reverence, called law in England and America “an occult science.” A.TOCQUEVILLE, DEMOCRACY IN AMERICA 287 (P. Bradley ed. 1945).

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