Nuclear Weapons and Law

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

17.

The Frail Constitution of Good Intentions *

Stanley C. Brubaker**

If I understand the architecture of Professor Miller's argument correctly, his lofty conclusion rests on two pillars, either of which he regards as adequate to support it; these pillars in turn arise from a single foundational premise. The conclusion, of course, is that the manufacture, deployment, or use of nuclear weapons is unconstitutional. The premise is that nuclear war is “[b]y definition” unlimited. 1 The first pillar is constructed from clauses of the Constitution reinforced with good intentions. The second is of similar construction, but is also girded by a novel interpretation of international law.

His essay is admittedly only a “preliminary inquiry” 2 into the constitutionality of nuclear weapons, but the architectural design must be examined to see if it affords any reasonable hope of supporting his conclusion.


Pillar I: The Well Intended Constitution

It is the leitmotif of Professor Miller's argument that the Constitution is not to be interpreted simply according to the terms of its text, but informed by the Constitution's intentions. 3 These intentions, we learn, are not simply those of the people who wrote the text, but also, and primarily, those present and future generations who live under its authority. 4 The ultimate end—stated vaguely enough to spark little opposition—emerges as “human survival under conditions that allow human dignity to be maximized.” 5 But the proper and good intention

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

** Assistant Professor of Political Science, Colgate University.

1. Miller, Nuclear Weapons and Constitutional Law, 7 NOVA L.J. 21, 30 (1982).

2. Id. at 23.

3. Id. at 27.

4. Id.

5. Id. at 26.

-299-

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