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Response or Comment


The Constitution and the Prevention of Nuclear Holocaust: A Reaction to Professor Banks, 13 Journal of Legislation 206 (1986)


Not long ago, the Soviet Union pledged that it would refrain from making a first use of nuclear weapons—turning a conventional conflict into a thermonuclear one—if the United States would commit a similar undertaking. To the surprise of almost no one, the United States declined this invitation. American military strategists have long considered retention of the "nuclear option" as crucial to the defense of Western Europe in the event of invasion by a Warsaw Pact force that threatened to overwhelm its conventionally armed opposition. American determination not to surrender this option may be wise or foolish, but it remains a controversial cornerstone of NATO defense policy.

In an age when no thinking person can help worrying about the possibility of nuclear holocaust, it is quite natural that some fears would come to focus on the likelihood that the President of the United States—usually referred to as "one man" or "a single individual"—might, through a wrong decision, be the one who decides to make the first use of nuclear weapons and thus turns a conventional conflict into what might be the last war this planet will ever suffer. In a society that, like ours, prides itself on the rule of law, this debate on the morality of policy has been transformed (perhaps inevitably) into one over the wisdom and constitutionality of legislation to hold the President back.

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