r
absolutism was not confined in the Middle Ages to the state alone. As
the King was the recognized guardian of the established political order
and its final interpreter, so the ecclesiastical hierarchy claimed the
right to guard the faith and expound the creed of the people. Criticism
and dissent, political and religious, were rigorously repressed. The
people were required to accept the political and religious system
imposed on them from above. Implicit faith in the superior wisdom of
their temporal and spiritual rulers was made the greatest of all
virtues. But with the growth of an intelligent skepticism throughout the
western world, the power of king and priest has been largely overthrown.

Yet even in this country something akin to the old system of political
control still survives in the ascendency of our Federal judiciary. The
exclusive right claimed by this branch of the government to guard and
interpret the Constitution is the same prerogative originally claimed by
the king. The judiciary, too, is the branch of our government farthest
removed from the influence of public opinion and consequently the one in
which the monarchical principle most largely survives.

The courts not only claim to be the final arbiters of all constitutional
questions, but have gone much farther than this and asserted their right
to annul legislative acts not in conflict with any constitutional
provision. Story says: "Whether, indeed, independently of the
Constitution of the United States, the nature of republican and free
government does not necessarily impose some restraints upon the
legislative power has been much discussed. It seems to be the general
opinion, fortified by a strong current of judicial opinion, that, since
the American Revolution, no state government can be presumed to possess
the transcendental sovereignty to take away vested rights of
property."[91]

The judiciary has thus claimed not only the power to act as the final
interpreter of the Constitution, but also the right, independently of
the Constitution, to interpret the political system under which we live,
and make all legislative acts conform to its interpretation of that
system. According to this doctrine the courts are the final judges of
what constitutes republican government and need not base their power to
annul a legislative act on anything contained in the Constitution
itself. If we accept this view of the matter, legislation must conform
not only to th