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Thursday, August 10, 2023

"Oppenheimer" and the Constitution

I have not seen "Oppenheimer" or "Barbie." But I am thinking about how the invention of nuclear weapons served as an important backdrop to Justice Jackson's concurrence in Youngstown as I work through that chapter of the book.

As Garry Wills points out in his book Bomb Power, nuclear weapons changed the constitutional zeitgeist in favor of the President. Why? Because once the President had the unilateral power to blow up the world, it was easier to argue that he had lesser unilateral powers. He has the power to blow up the world because we think that the decision to use a particular weapon is a tactical choice that falls well within the Commander-in-Chief Clause. (A few people asked questions about this at the end of the Trump presidency, but nothing came of that.) It's like an issue that I think I'll write about next year, which is how the draft served the same function for congressional authority (though not so much anymore).

Of course, the argument that the greater always includes the lesser is not correct. And Jackson offered a corrective of sorts in his opinion. I'm not sure if he ever talked about nuclear weapons as such (he didn't in the concurrence), but I'm looking into that.

UPDATE: Actually, there is a great "Yes, Prime Minister" episode that makes this point. The Prime Minister is told that he cannot hire a government cook for #10 Downing Street. He asks: "So I have the power to blow up the world, but not to hire a cook?" Eventually they find a workaround to get the cook, which is revealing in its own way.

Posted by Gerard Magliocca on August 10, 2023 at 12:02 PM | Permalink


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