ry; but the latter, through its control
over the interpretation of the Constitution may in effect legislate
without the consent of the other branches of the government, and even
in opposition to them. Under the guise of an independent judiciary we
have in reality an independent legislature, or rather an independent
legislative and judicial body combined. This union of sovereign
legislative authority and ordinary judicial functions in the same
independent body is a significant and dangerous innovation in
government. It has not only deprived the people of the power to make the
interpretation of the Constitution and the trend of legislation conform
to the public sentiment of the times; it has even taken from them all
effectual power to prevent changes which they do not want, but which the
judiciary in the exercise of its exclusive right to act as the guardian
and interpreter of the Constitution may see fit to make. Under our
system, then, the people do not have even the negative power of absolute
veto which they possess wherever they control a coordinate branch of the
legislature.

In so far as the exercise of legislative power is controlled by the
Supreme Court our government is essentially aristocratic in character.
It represents the aristocratic principle, however, in its least
obtrusive form. But while avoiding the appearance, it provides the
substance of aristocratic control.

It is easy to see in the exaltation of the Federal judiciary a survival
of the old mediaeval doctrine that the king can do no wrong. In fact,
much the same attitude of mind which made monarchy possible may be seen
in this country in our attitude toward the Supreme Court. As long as the
people reverenced the king his irresponsible power rested on a secure
foundation. To destroy the popular belief in his superior wisdom and
virtue was to destroy the basis of his authority. Hence all criticism of
the king or his policy was regarded as an attack on the system itself
and treated accordingly as a serious political crime.

The old view was well expressed by James I of England in a speech made
in the Star Chamber on June 20, 1601, in which he said:

"That which concerns the mystery of the King's power is not lawful to be
disputed; for that is to wade into the weakness of princes, and to take
away the mystical reverence that belongs unto them that sit on the
throne of God."[90]

We see this same fact illustrated also in the history of the church, fo