TOWARD POSITIVE RESPONSIBILITY
AMERICAN'S HAVE BECOME SO accustomed to judicial review that they take it for granted. Whenever government enters any new domain the natural and inevitable question is whether the steps taken are constitutionally valid. Since 1937 responsible observers, including the late Justice Owen J. Roberts, have wondered whether a government so circumscribed can survive in an age which calls for power and more power -- power to deal with domestic problems of ever-increasing complexity, power to cope with the most baffling international issues. These pressures may help explain why, during the years since 1937, the principle of constitutional limitations has been in eclipse. Americans are still accustomed, nevertheless, to think in terms of the constitutionality of governmental action rather than of its wisdom.
Long before he became a Supreme Court Justice, Professor Felix Frankfurter began to query America's "constant preoccupation with the constitutionality of legislation." This tends, he said, to make us think "a law is all right if it is constitutional." Frankfurter is convinced now, as he was before donning judicial robes,