of popular control.

To allow the legislative body to be "the constitutional judges of their
own power," Hamilton tells us, would be to affirm "that the servant is
above his master." Hence it is necessary, he argues, to divest Congress
of all authority to determine the extent of its own powers. To
accomplish this the Supreme Court was made the constitutional judge of
the powers of Congress and of its own powers as well. Hamilton's
argument involves the assumption that, while it is dangerous to allow a
frequently elected and responsible branch of the government to determine
the extent of its own powers, it is at the same time eminently wise and
proper to give, not only this power, but also the power to determine the
authority of all other branches of government, to a permanent body whom
the people neither elect nor control. His constant reference to the
danger of legislative oppression was merely a mask for his hatred of
popular government. He was anxious to curb the power of Congress because
he feared that public opinion would too largely influence the
proceedings of that body. On the other hand, he saw no danger of
executive or judicial tyranny since these branches of the government
were expected to be independent of public opinion. Hamilton's purpose
was to limit the power of the people by subordinating that part of the
government in which they were directly represented and strengthening
those parts over which they had no direct control. His defence of the
Constitution is thus really an argument against responsible government
and a defence of the principles underlying monarchy and aristocracy.

As the English judiciary is really an offshoot from the executive, the
power of the court to declare legislation null and void may be regarded
as merely a phase of the executive veto. No evidence of this can be
found, it is true, in the constitutional history of England during the
eighteenth and nineteenth centuries. But if we go back to the period
preceding the revolution of 1688, it seems to be clearly established
that the English courts claimed, and in a few instances exercised, the
power to annul acts of Parliament. As late as 1686, in the case of
Godden v. Hales, "the Court of King's Bench actually held that important
provisions of the statute of 25 Charles II, cap. 2, were void because
conflicting with the King's rightful prerogative."[63] When we remember
that the courts were then under the control of the King, it is no