Nuclear Weapons and Law

By Arthur Selwyn Miller; Martin Feinrider | Go to book overview
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The Power to Use Nuclear Weapons A Response to Professor Miller *

Jack M. Goldklang**

I have given some thought previously to the legal issues involved in fighting World War III. My specialties include emergency powers, war powers, constitutional law, and international law. It strikes me as fascinating therefore that we are here confronting a question—the constitutionality of nuclear weapons—that has never been considered a difficult one.

The fact that this question does not come up often is not really surprising. It probably was never asked in real life by Harry Truman of the Attorney General in 1945 when atomic warfare began. That is because, judged by the same standards by which we judge other constitutional issues, there is no realistic case that can be made that nuclear weapons are unconstitutional per se.1

Before I go too far, I want to make clear that I am not discussing the policy that the President and the Congress or the rest of the world ought to adopt concerning the construction and use of nuclear weapons. My own position is not an issue here. I am not an expert on nuclear weapons and I do not attempt to follow the details of the many debates on weapons systems.

However one may feel about nuclear weapons, the conclusion is unavoidable: A wish that nuclear weapons would go away cannot be translated into the conclusion that they are unconstitutional. The thesis that has been presented by Professor Miller 2 does not demonstrate that any single section of the Constitution provides or has been interpreted in a way which would even lead one to believe that nuclear weapons are

* This essay is based on remarks delivered at the Conference on Nuclear Weapons and Law held at Nova University Center for the Study of Law on February 5, 1983.

** Attorney-Advisor, Office of Legal Counsel of the United States Department of Justice. The views expressed here are those of the author in his personal capacity and are not necessarily those of the U.S. Department of Justice.


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