– John M. A. DiPippa –
In this article, I discuss the implications the original meaning of the proper constitutional distribution of the war power as it relates to the use of nuclear weapons. I hope to provide a framework to answer the questions about the constitutional rules for the use of nuclear weapons as the Framers might answer them.
The conventional wisdom about the Constitution’s distribution of war powers posits that the President may use military force to defend the nation, but any offensive use of force requires congressional authorization. Post-World War II theory and practice drifted toward allowing the President greater authority to make war before Congress had a chance to act. Our strategic commitments, our mutual defense obligations, and our far-flung military bases expanded the range of our nation’s protective cover and, consequently, the President’s power,
Nuclear weapons complicate this situation enormously. Nuclear policy developed during the intense Cold War rivalry between the United States and the Soviet Union. The perfect storm of our changing understanding of the constitutional rules for making war and the imperatives of the nuclear age blinded us from a constructive examination of the constitutional rules for the use of nuclear weapons. If the nation’s defense strategy policy contemplates a nuclear first strike capability and includes a nuclear first use option, then the conventional constitutional wisdom appears to have little meaning. Because of this, presidential power unilaterally to employ nuclear weapons in an offensive context threatens to undo the Framers’ entire structure regarding the proper distribution of the power to make war.
In Part II, I discuss the relatively few legal scholars who address the constitutional issues relating to the use of nuclear weapons. In Part III, I outline the development of the United States’ policies on using nuclear weapons. In Part IV, I discuss the need for congressional involvement in nuclear decision making. In Part V, I discuss what the historical sources tell us the Constitution’s Framers may have meant when they set out the Constitution’s war powers. In Part VI, I use a contextual analysis borrowed from international law to develop the constitutional principles that should guide our consideration of these questions. In Part VII, I discuss some proposals to limit or regulate unilateral presidential power.