William H. Taft, IV **
July 15, 1982
Nova Law Review
3100 S.W. 9th Avenue
Fort Lauderdale, Florida 33315
You have written to both Secretary Weinberger and me inviting us to comment in your law review on the issues raised in Professor Arthur Miller's article “Nuclear Weapons and Constitutional Law.” This letter is in response to both invitations. We appreciate very much the opportunity thus provided.
Professor Miller's article suggests that officers of the federal government are under a constitutional duty to take action to eliminate the threat to American lives, liberty, and property posed by nuclear weapons. It is not necessary to agree with Professor Miller's constitutional analysis, much of which he himself characterizes as tentative and even far-fetched, to recognize the responsibility of government officials in this regard. Quite apart from the implicit powers and duties derived from the doctrine of raison d'état, which Professor Miller evidently views with some ambivalence, ***
* Reprinted, with permission, from Nova Law Journal, Volume 7, Number 1 (1982).
** General Counsel of the Department of Defense.
*** Professor Miller's ambivalence arises, I believe, from a misunderstanding of the relationship between national security in the context of international affairs and personal security. Professor Miller perceives a tension between the interests of the state in maintaining its authority and individual rights. While this tension undoubtedly exists in a domestic context, with regard to threats to individual rights by foreign countries, national security and personal security are interdependent: the survival of the state is what in this context preserves the individual rights secured by the Constitution. Threats from nuclear weapons arise, needless to say, only in an international context.