Nuclear Weapons and Law

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

23.

The President, the Constitution and Nuclear Weapons *
Thomas M. Franck**We need to analyze the possibility of constitutional constraints on the President's ability to resort to use of nuclear weapons in terms of three issues:
1. whether the Constitution has anything to say about the right of a President to use nuclear weapons;
2. whether the Constitution has anything to say about presidential war-making; and,
3. whether the Constitution has anything to say about the power of Congress, if it so chose, to restrict the power of the President to make war and/or the power to employ nuclear weapons.

Professor Miller strives mightily, in his stimulating paper, 1 to find an affirmative answer to the first of these questions: does the Constitution have anything to say about the President's choice of weapons in a situation of legitimate hostilities. Let me emphasize that this question, both literally and in historical practice, is treated differently in constitutional theory from the second question: does the Constitution limit the President's power to initiate hostilities, whatever his choice of weapons.

I must confess that I do not find myself convinced by the “right to life” argument adduced by Professor Miller from the spirit and penumbra of that long-suffering document, the Constitution. If, and that's a big “if, the United States is lawfully engaged in hostilities, it is within the power of the President to determine the strategic military means by which the war is to be prosecuted.

That proposition has the support of the black-letter law of the Constitution's “Commander-in-Chief” clause, which was written precisely to mend

* 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.

** Professor of Law and Director, Center for International Studies, New York University School of Law.

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