The lack of any challenge to the constitutionality of the recent popular referenda on the nuclear arms question is astonishing. Even though the referenda were advisory, there is some doubt whether states and local governments may legally place their power and influence behind any effort impinging upon the national government’s power of external sovereignty. The United States Constitution seems rather clear on this point. Its specific grants of power over foreign and military affairs to the national government, together with explicit prohibitions of this power to the states, underscore the nation’s absolute supremacy in the domain of international affairs. Reinforcing the plenary and exclusive power of the national government in this field is Martin v. Mott (1827) to Dames & Moore v. Regan (1981). It is arguable, therefore, that by holding referenda on nuclear arms — a military issue of utmost international significance — the states have unlawfully intruded into the sphere of national sovereignty.
A precedent for this view exists in the constitutional law of West Germany, a federal republic not unlike the American in its distribution of the foreign affairs power. In 1958 the city states of Hamburg and Bremen ordered popular referenda on the question of equipping the new German army with atomic weapons. The Christian Democratic controlled government in Bonn had already decided, over Social Democratic opposition, to purchase atomic weapons. In holding the referenda, the aforementioned states, controlled by the Social Democratic Party, clearly intended to reverse the national government’s decision to push forward with atomic rearmament as a critical element of West German defense strategy. The national government responded by challenging the validity of the referenda in the Federal Constitutional Court.
Although the Court acknowledged the role of public opinion in a constitutional democracy, it held that the referenda offended West Germany’s Constitution. By its terms, said the Court, defense policy is within the sole competence of the federal government. Any state law attempting to regulate a matter of national defense policy would clearly violate the constitution. Any scheme designed to achieve the same result by indirection, reasoned the Court, would equally run afoul of the Constitution. In the Court’s view, the state-run consultative referendum was just such a scheme. In a related decision on the same day (July 30, 1958), the Court held that such referenda also offend the principle of federal comity (Bundestreue), a reference to the basic relationship of trust governing the bond between units of government within a federal system.
Significant differences of course mark the German and American situations. In Germany the conflict was waged between the federal government controlled by one party and states controlled by another. This was not so in the United States, where the nuclear freeze referenda transcended party lines. In addition, the German decision rested on a tenuous judicial distinction between the “will of the people” and the “will of the state,” an abstraction unlikely to commend itself to the Anglo-American legal mind. Yet these differences are not sufficient to overcome all doubt about the constitutionality of the American referenda.
Needless to say, the argument advanced here does not affect the validity of other methods or techniques of influencing United States defense policy. Antinuclear demonstrations and other mass movements designed to change the course of national policy are obviously constitutionally protected. National defense policy is just as obviously a legitimate subject of partisan conflict in all forms of public discussion. Permissible too are the efforts of nongovernmental organizations, such as the U.S. Conference of Catholic bishops, to urge their constituencies to support nuclear freeze proposals and even to encourage resistance to nuclear arms. All that is suggested here is that the American states approach the borderline of constitutionality when they use their powers to sponsor referenda that impinge on the national government’s authority over foreign and military affairs.