¹⁰⁴ Schell, Jonathan, The Fate of the Earth (1982).Google Scholar

¹⁰⁵ Bilder, , “Nuclear Weapons and International Law,” in Nuclear Weapons and Law, ed. A. Miller and M. Feinrider (1984), pp. 3, 7.Google Scholar

¹⁰⁶ See generally Cox, , War, Foreign Affairs, and Constitutional Power, passim.Google Scholar

¹⁰⁷ Quoted by Jackson, J., in Youngstown.

¹⁰⁸ Ford, , The Button, p. 144Google Scholar; see Steinbruner, , “There are strong reasons”Google Scholar for doubting the ability of political leaders “to contain their respective strategic organizations” (“Launch Under Attack,” p. 47).Google Scholar

¹⁰⁹ See Rossiter, C., Constitutional Dictatorship: Crisis Government in the Modern Democracies (1948)Google Scholar; Miller, A., Democratic Dictatorship (1981), pp. 77–80.Google Scholar

¹¹⁰ Discussed in Miller, A., Presidential Power in a Nutshell (1976).Google Scholar

¹¹¹ Stone, , “Presidential First Use Is Unlawful,” Foreign Policy, 56 (1984), 94.CrossRefGoogle Scholar

¹¹² A “two-key” system in that which is used by the military; in other words, it takes two men with keys to launch nuclear weapons. See Bracken, , Command and Control of Nuclear Forces, passim.Google Scholar

¹¹³ For Cuba, see Hardin, C., Presidential Power and Accountability: Toward a New Constitution (1974), p. 62.Google Scholar

¹¹⁴ Sundquist, J., The Decline and Resurgence of Congress (1981), p. 455.Google Scholar

¹¹⁵ Ibid., p. 460.

¹¹⁶ Kissinger, , “The Future of NATO,” Washington Quarterly (Autumn 1979), p. 7.Google Scholar

¹¹⁷ Stone deals with the question in his article. See also Fisher, , Constitutional Conflicts.Google Scholar

¹¹⁸ Corwin, E., The President: Office and Powers, 4th ed. (1957), p. 298.Google Scholar

¹¹⁹ Article I, Sec. 6, Clause 2 of the formal constitution.

¹²⁰ Wilcox, F., Congress, The Executive, and Foreign Policy (1971), pp. 157–59.Google Scholar

¹²¹ Hardin, , Presidential Power and Accountability, p. 66.Google Scholar

¹²² Kennedy, R., Thirteen Days (1969).Google Scholar

¹²³ Quoted in Hardin, C., Presidential Power and Accountability, p. 209 n48.Google Scholar

¹²⁴ Reedy, G., The Twilight of the Presidency (1971).Google Scholar

¹²⁵ Ibid.

¹²⁶ Janis, I., Victims of Groupthink (1973).Google Scholar

¹²⁷ The Papers of James Madison 1358–59, ed. Gilpin, H. (1840), p. 3.Google Scholar

¹²⁸ Federalist, No. 70 (A. Hamilton).

¹²⁹ Ibid.

¹³⁰ Ibid.

¹³¹ Ibid.

¹³² Steeg, C. Ver, The Formative Years 1607–1763 (1964), p. 263.Google Scholar

¹³³ Ibid.

¹³⁴ Quoted in Adams, J., Defense of the American Constitution (1787).Google Scholar

¹³⁵ Ibid., p. 366.

¹³⁶ See Fisher, , “The Efficiency Side of Separated Powers,” Journal of American Studies, 113 (1971), 5.Google Scholar

¹³⁷ Sundquist, , “Needed: A Workable Check on the Presidency,” Brookings Bulletin, no. 4 (Fall 1973), p. 10.Google Scholar

¹³⁸ Kennan, , “On Nuclear War,” The New York Review, 21 01 1982, p. 8.Google Scholar

¹³⁹ Quoted in Schell, , Fate of the Earth, p. 188.Google Scholar

¹⁴⁰ Cohen, , “Presidential Responsibility and American Democracy: How to Guard Against the Aberrant Exercise of Presidential Power,” 1974 Royer Lecture (University of California, Berkeley, 23 May 1974; unpublished typescript), p. 23.Google Scholar

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¹⁴² As in the requirement that the head of the Office of Management and Budget receive senatorial confirmation.

¹⁴³ Cohen, , “Presidential Responsibility,” p. 24.Google Scholar

¹⁴⁴ Reedy, G., The Presidency in Flux (1973), pp. 15–16.Google Scholar

¹⁴⁵ Ibid., p. 33.

¹⁴⁶ Harriman, , “The Presidency As I Have Seen It,” in On the Living Presidency, ed. E. Hughes (1972), p. 349.Google Scholar

¹⁴⁷ Cohen, , “Presidential Responsibility,” p. 29.Google Scholar

¹⁴⁸ Kissinger, H., The Necessity for Choice (1961), p. 342Google Scholar. See also Miller, , “Taking Needs Seriously: Observations on the Necessity for Constitutional Change,” Washington and Lee Law Review, 41 (1984), 1246–47Google Scholar (on the usefulness of Utopian thought). And see Galston, W., Justice and the Human Good (1980)Google Scholar: “Utopian thought performs three related functions. First, it guides our deliberations, whether in devising courses of action or in choosing among exogenously defined alternatives with which we are confronted. Second, it justifies our actions; the grounds of action are reasons that others ought to accept and — given openness and the freedom to reflect — can be led to accept. Third, it serves as the basis for the evaluation of existing institutions and practice” (p. 14).Google Scholar

¹⁴⁹ See Carter, , “Constitutionality of the War Powers Resolution”Google Scholar; and the discussion in the test in section 1, first part of this article.

¹⁵⁰ Although the Supreme Court has asserted, beginning in 1803, that it is the province and duty of courts to say what the law is, other branches of government make constitutional decisions routinely. Congress does so, the president does so, and so, too, do the purported “private” organizations of the American polity. See Miller, , “Pretense and Our Two Constitutions”Google Scholar (forthcoming in George Washington Law Review, 1986).Google Scholar

¹⁵¹ Ball, , “Nuclear War: The End of Law,” in Nuclear Weapons and Law, pp. 287, 295.Google Scholar

¹⁵² Dworkin, R., Taking Rights Seriously (1978), p. 147.Google Scholar

¹⁵³ Monaco v. Mississippi, 292 U.S. 213 (1943).Google Scholar

¹⁵⁴ 431 F. Supp. 203 (W.D.N.C. 1977) reversed on other grounds) sub nom., Duke Power Co. v. Carolina Environmental Study Group, Inc., 439 U.S. 59 (1978)Google Scholar. See discussion in Miller, , “Constitutional Challenge of Nuclear Weapons.”Google Scholar

¹⁵⁵ Writing for the Supreme Court, Chief Justice Burger said that he saw the Price-Anderson Act as an economic regulation and thus by applying a limited standard of review — was it arbitrary or irrational — had no difficulty in holding that the act passed “constitutional muster.”

¹⁵⁶ 431 F. Supp. at 222.

¹⁵⁷ Ball, , “Nuclear War: The End of Law,” p. 295.Google Scholar

¹⁵⁸ See Miller, , “Toward a Definition of ‘The’ Constitution,” University of Dayton Law Review, 8 (1983), 633, 639–41Google Scholar; reprinted in Miller, , Politics, Democracy, and the Supreme Court.Google Scholar

¹⁵⁹ Shapiro, M., Courts: A Comparative and Political Analysis (1981), p. 34.Google Scholar

¹⁶⁰ The quotation comes from a brief postscript by Sorensen, Theodore C. in Kennedy, , Thirteen Days (1969), p. 128Google Scholar. Sorensen asserts that Kennedy planned to add a discussion of the ethical question to his book, but was assassinated before he had the opportunity to do so.

¹⁶¹ Casper, , “Constitutional Constraints,” p. 496.Google Scholar

¹⁶² See the several essays in National Security and American Society, ed. Trager, F. and Kronenberg, P. (1973)Google Scholar; Wolfers, , “‘National Security’ as an Ambiguous Symbol,” Political Science Quarterly, 67 (1952), 481CrossRefGoogle Scholar; Raskin, , “Democracy Versus the National Security State,” Law and Contemporary Problems, 40 (Summer 1976), 189.CrossRefGoogle Scholar

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¹⁶⁴ Duguit, L., Law in the Modern State, trans. Laski (1919)Google Scholar. See Howell, , “The Search for Jurispolitical Philosophy,” Virginia Law Review, 44 (1958), 409.Google Scholar

¹⁶⁵ See Miller, , “Pretense and Our Two Constitutions.”Google Scholar

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¹⁶⁷ Gunther, G., Cases and Materials on Constitutional Law, 9th ed. (1975).Google Scholar

¹⁶⁸ Bundy, , “The Presidency and the Peace,” Foreign Affairs, 42 (1964), 353.CrossRefGoogle Scholar

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¹⁷⁰ Hardin, , Presidential Power and Accountability, p. 3.Google Scholar

¹⁷¹ For preliminary discussion, see Miller, , “Toward a Concept of Constitutional Duty,” 1968 Supreme Court Review, 199Google Scholar, reprinted in Miller, A., Social Change and Fundamental Law: America's Evolving Constitution (1979), chap. 5.Google Scholar

¹⁷² 391 U.S. 430 (1968).

¹⁷³ Pekelis, A., Law and Social Action (1950), p. 1.Google Scholar

¹⁷⁴ See, for example, Berle, A., Power (1969)Google Scholar: “A revolution has taken place and is in progress” and “the revolutionary committee is the Supreme Court of the United States” (p. 342). See also Hutchins, , “The Case for Constitutional Change,” Center Report, No. 5 (12 1970)Google Scholar: “The Court has become ‘the highest legislative body in the land’” (p. 3).

¹⁷⁵ George, H., Progress and Poverty (1879), chap. 8.Google Scholar

¹⁷⁶ Wilson, W., Constitutional Government in The United States (1908).Google Scholar

¹⁷⁷ 358 U.S. 1 (1958).

¹⁷⁸ See Miller, , “Constitutional Decisions as De Facto Class Actions: A Comment on Cooper v. Aaron,” 58 University of Detroit Journal of Urban Law, 58 (1981), 583Google Scholar. An example of a case in which the justices expressly limited the thrust of their decision to the facts at bar is Pickering v. Board of Education, 391 U.S. 563 (1968).Google Scholar

¹⁷⁹ 384 U.S. 436 (1966).

¹⁸⁰ 410 U.S. 113 (1973). See also Doe v. Bolton, 410 U.S. 179 (1973).Google Scholar

¹⁸¹ 354 U.S. 1 (1957).

¹⁸² Fleishman, and Aufses, , “Law and Order: The Problem of Presidential Legislation,” Law and Contemporary Problems, 40 (1976), 1, 44.CrossRefGoogle Scholar

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¹⁸⁴ Gewirtz, , “The Courts, Congress, and Executive Policy-making: Notes on Three Doctrines,” Law and Contemporary Problems, 40 (1976), 46, 63.Google Scholar

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¹⁸⁶ Dames & Moore v. Regan, 453 U.S. 654 (1981)Google Scholar. See Miller, , “Dames & Moore v. Regan: A Political Decision by a Political Court,” UCLA Law Review, 29 (1982), 1104Google Scholar, reprinted in Miller, , Politics, Democracy, and the Supreme Court, chap. 7.Google Scholar

¹⁸⁷ Lowi, T., The Personal President: Power Invested, Promise Unfulfilled (1985), p. 212.Google Scholar

¹⁸⁸ For some of the Establishment's “born-again” posture toward nuclear weapons, see Bundy, , Kennan, , McNamara, and Smith, , “Nuclear Weapons and the Atlantic Alliance,” Foreign Affairs, 60 (1982), 753CrossRefGoogle Scholar. These men, however, are noteworthy less for the antinuclear position they now take than for their rarity among those who actually govern in the United States (under the secret constitution).

¹⁸⁹ 175 U. S. 677 (1900). See also United States v. Arjona, 120 U. S. 479 (1887).Google Scholar

¹⁹⁰ Christenson, , “Using Human Rights Law to Inform Due Process and Equal Protection Analysis,” University of Cincinnati Law Review, 52 (1983), 3, 36.Google Scholar

¹⁹¹ For example, Feinrider, , “International Law as Law of the Land: Another Constitutional Constraint on Use of Nuclear Weapons,” in Nuclear Weapons and Law, p. 83Google Scholar; Weston, , “Nuclear Weapons Versus International Law: A Contextual Reassessment,”Google Scholaribid., p. 133.

¹⁹² For example, Almond, , “Deterrence and a Policy-Oriented Perspective on the Legality of Nuclear Weapons,”Google Scholaribid., p. 57.

¹⁹³ There is a “constitutional duty to reduce and, if possible, eliminate the threat that nuclear weapons pose to individual freedom and rights of Americans set out in the Constitution.” Statement of William H. Taft, IV, then General Counsel and now Deputy Secretary of Defense, 15 July 1982, reproduced in ibid., pp. 337, 338. The duty, Taft concedes, rests upon both Congress and the president. At times the executive has employed the “take care” clause of Article II as a grant of power to take action not specifically authorized. See Corwin, E., The President: Office and Powers, 1787–1984, 5th ed., rev. R. Bland, T. Hindson & J. Peltason (1984), pp. 144, 171, 406n7Google Scholar. In 1838 the Supreme Court said in Kendall v. Stokes, 12 Peters 524: “To contend that the obligation imposed on the President to see the laws faithfully executed, implied a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible” (ibid., p. 613). We may go further and say that a contention that the “take care” duty implies a grant of affirmative powers is contrary to the letter and spirit of the formal constitution, “and entirely inadmissible.”

¹⁹⁴ Since this article was written, Dr. Clifford Johnson has refiled his lawsuit: Johnson v. Weinberger, U.S. District Court, Northern District of California, 17 June 1986, and the following relevant articles have appeared: Banks, , “First Use of Nuclear Weapons: The Constitutional Role of a Congressional Leadership Committee,” Journal of Legislation, 13 (1986), 1Google Scholar; and Ides, , “Congressional Authority to Regulate the Use of Nuclear Weapons,” Hastings Constitutional Law Quarterly, 13 (1986), 33.Google Scholar