eories and thereby established the supremacy of the
judiciary in our scheme of government. The subsequent success of the
Supreme Court in asserting and enforcing its right to annul acts of
Congress completed the establishment in this country of a form of
government which Professor Burgess correctly describes as an
"aristocracy of the robe."[85]

The full significance of this annulling power is not generally
understood. The Supreme Court claims the right to exercise it only as
the guardian of the Constitution. It must be observed, however, that
while professing to be controlled by the Constitution, the Supreme Court
does, as a matter of fact, control it, since the exclusive right to
interpret necessarily involves the power to change its substance. This
virtually gives to the aristocratic branch of our government the power
to amend the Constitution, though this power is, as we have seen,
practically denied to the people.

We have become so accustomed to the exercise of this power by the courts
that we are in the habit of regarding it as a natural and necessary
function of the judiciary. That this is an erroneous view of the matter
is shown by the fact that this power "is scarcely dreamed of anywhere
else."[86] In other countries the power is unknown whether the
Constitution be unwritten as in England or written as in France,
Germany, and Switzerland. Nor does it make any difference whether the
government be national in character as in England and France, or federal
as in Germany, Switzerland, and Australia. In no other important country
are the courts allowed to veto the acts of the legislative body. The
exercise of this power can be justified here only on the ground that it
is indispensable as a means of preserving and perpetuating the
undemocratic character of the Constitution.

"This power [the Supreme Court] has the last word in the numberless
questions which come under its jurisdiction. The sovereign people after
a time conquers the other powers, but this Supreme Court almost always
remains beyond its reach. For more than twenty or even thirty years,
twice the _grande mortalis aevi spatium_, it may misuse its authority
with impunity, may practically invalidate a law voted by all the other
powers, or a policy unanimously accepted by public opinion. It may
nullify a regular diplomatic treaty[87] ... by refusing to enforce it by
judicial sanction, or may lay hands on matters belonging to the
sovereignty of the states