Nuclear Weapons and Law

By Arthur Selwyn Miller; Martin Feinrider | Go to book overview
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Nuclear War: The End of Law *

Milner S. Ball**

Professor Miller summons us to consider the constitutionality of nuclear weapons. In doing so, he has made an original, provocative contribution to constitutional jurisprudence as well as the humanizing politics of nuclear arms control. He speaks with scholarly responsibility on a subject that has heretofore engendered either silence or nonsense and bombast.


By raising the question about the constitutionality of nuclear weapons, Professor Miller augments understanding of constitutional law and how constitutional law is done. Constitutional lawyers take far too crabbed a view of their subject when they merely sift through past court decisions and speculate on how the Supreme Court might decide a case in future. Consideration of the legality of nuclear arms leads Professor Miller to point out that the constitution is not limited to what the Court has said or may say. It includes, he reminds us, the great political realities which are brought partially to textual expression in the preamble and which can be fully satisfied not by judicial opinions but only by the people's decisions and actions and by the operations of all our institutions. To begin with, then, nuclear war violates constitutional law in the Miller dimension, which embraces systemic justice and the fundamental nature of government by the people. 1

Equally enlarging is Professor Miller's introduction of arguments drawn from specific constitutional provisions. First he exhumes and gives life to the doctrine of delegation, not presently favored in federal

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

** Professor of Law, University of Georgia School of Law.

1. It is to be remembered that Abraham Lincoln characteristically referred to the Declaration of Independence rather than to the Constitution when he addressed the fundamental nature of the American people.


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Nuclear Weapons and Law
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