Dean Alfange, Jr.**
In a well-known passage in his famous dissent in the flag-salute case of 1943, Justice Felix Frankfurter wrote:
Our constant preoccupation with the constitutionality of legislation rather than with its wisdom tends to preoccupation of the American mind with a false value. The tendency of focussing attention on constitutionality is to make constitutionality synonymous with wisdom, to regard a law as all right if it is constitutional. Such an attitude is a great enemy of liberalism…. Reliance for the most precious interests of civilization, therefore, must be found outside of their vindication in courts of law. 1
Arthur Miller does not subscribe to any such notion. For him, the principal function of courts of law is precisely to vindicate the most precious interests of civilization. In his view, the Constitution is not a finite set of narrow commands that establish a framework within which policy is to be determined. Rather, it is an expansive body of rules which, at any given time, require the adoption of the specific policy choices that would then best serve to achieve “the avowed goal of meeting current problems.” 2 What wisdom dictates to be the most desirable way of attaining important social goals is what the Constitution demands. When applied to the issue of nuclear weapons, that approach yields the conclusion that since “the ultimate purpose of law [including constitutional law] is human survival under conditions that allow human dignity to be maximized” 3 and since wisdom (indeed, common sense) tells
* Reprinted, with permission, from Nova Law Journal, Volume 7, Number 1 (1982).
** Professor of Political Science, University of Massachusetts.
1. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 670-71 (1943) (Frankfurter, J., dissenting).
2. Miller, Nuclear Weapons and Constitutional Law, 7 NOVA L.J. 21, 27 (1982).
3. Id. at 26.