Nuclear Weapons and Law

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

24.

A Commentary on Nuclear Weapons and Constitutional Law *

Fletcher N. Baldwin, Jr.**

The issue before us is the relationship of the Constitution of the United States to the manufacture and use of nuclear weapons. Perhaps we can find that relationship by examining specific provisions in the Constitution, though some would argue that such an examination is precluded by the war-making powers found in Article I, Section 8, clauses 11 through 16.

I'm not so sure we are talking here about the war-making powers. General Eisenhower planning and carrying out the invasion of France would be construed a culmination of the war-making power. I think we are talking about annihilation that isn't covered in Article I or Article II. Annihilation is somewhat different from carrying on a war; when we engage in war we expect to win. Therefore, it would seem that it's more a task of ours to try to identify some of the areas where we the people might have some input and further to examine various ways in which a platform might be constitutionally constructed so that we might be able to call for a halt to the madness of the nuclear arms race.

Though there are many lobbying groups in Washington, we as lawyers tend to be more comfortable in the courtroom. Yet, except for the various civil rights movements, or labor movements, we've never really had a very effective platform in the courtroom open to the people to articulate their real hopes and fears. So what I'd like to do is first of all identify some of the problems I see and then briefly respond to Professor Miller's thesis. 1

In point of fact, I think that our courts, especially the Supreme Court of the United States, when utilizing what is available generally under the Constitution, and what is available specifically to them under Article III, as a guide, can't even solve the problems that they are paid to solve. They can't even solve domestic problems, much less the nuclear proliferation issue.

* 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, University of Florida, Spessard L. Holland Law Center.

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