Nuclear Weapons and Law

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

19.

Admirable Ends—Questionable Means *

Iredell Jenkins**

I agree, of course, with the thrust of Professor Miller's paper and with the conclusion at which he arrives. There can be no question that nuclear weapons pose a threat not only to civilization and to all human beings, but even to the life process itself. It follows, then, that the proliferation of such weapons contravenes the fundamental principles of morality, the accepted rules of international law, and any sane idea of national interest and policy. Furthermore, I think that Professor Miller's five arguments make out a cogent case for his conclusion that “the manufacture, deployment, and possible—even probable—use of nuclear weapons contravene the Constitution”. 1 Each of these arguments is closely reasoned and well supported; together they present a persuasive defense of his claim, which might on its face appear unreasonable to the point of absurdity.

One may be tempted to object that the time-honored doctrine of raison d'etat makes these arguments and this conclusion meaningless: for this doctrine holds that any state is justified in taking—and is certainly going to take—whatever steps it deems necessary for its own protection. However, this argument fails for the simple reason that when several states possess significant numbers of nuclear weapons, then their use by any one state would quite surely lead to retaliation and hence to its own destruction. And this goes directly against the purpose of raison d'etat, which is to guarantee the existence of the society of which the state is the agent.

Consequently, and as a point of departure for this response, I am prepared to stipulate Professor Miller's conclusion that “those who wield both formal authority and effective control in the American constitutional order have a duty to take action designed to eliminate the nuclear threat throughout the world” and that “the duty…is of con-

* Reprinted, with permission, from Nova Law Journal, Volume 7, Number 1 (1982), where it appeared as “Admirable Ends—Ineffective Means.”

** Professor Emeritus of Philosophy, University of Alabama.

1. Miller, Nuclear Weapons and the Constitution, 7 NOVA L.J. 21, 23 (1982).

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