and federalize them without one's being able
to make any effective opposition, for this Court itself determines its
own jurisdiction as against the state tribunals. It is one of
Blackstone's maxims that in every constitution a power exists which
controls without being controlled, and whose decisions are supreme. This
power is represented in the United States by a small oligarchy of nine
irremovable judges. I do not know of any more striking political paradox
than this supremacy of a non-elected power in a democracy reputed to be
of the extreme type. It is a power which is only renewed from generation
to generation in the midst of a peculiarly unstable and constantly
changing state of things--a power which in strictness could, by virtue
of an authority now out of date, perpetuate the prejudices of a past
age, and actually defy the changed spirit of the nation even in
political matters."[88]

It is a fundamental principle of free government that all legislative
power should be under the direct control of the people. To make this
control effective all laws must be enacted by the people themselves, or
they must at least have what practically amounts to the power of
appointing and removing their representatives. Democracy implies not
merely the right of the people to defeat such laws as they do not want,
but the power to compel such legislation as they need. The former power
they possess in any country in which they control one coordinate branch
of the legislature, even though the government be a monarchy or
aristocracy. This negative power of defeating adverse legislation is
merely the first step in the evolution of free government, and is
possessed by the people in all countries which have made much
constitutional progress. There is a vast difference, however, between a
system under which the people constitute a mere check upon the
government and one which gives them an active control over legislation.
It is the difference between a limited monarchy or aristocracy on the
one hand and a government by the people themselves on the other.[89]

If this test be applied to the government of the United States we see
that it lacks the essential feature of a democracy, inasmuch as laws can
not be enacted without the consent of a body over which the people have
practically no control. In one respect at least the American system is
even less democratic than was the English government of the eighteenth
century. The House of Commons w