Moreover, when a law is unconstitutional it should ever be only because it violates some great natural right of humanity, personal liberty, property, or the right to common law.  When constitutions go into details which are not substantially connected with these cardinal rights, they bring themselves into contempt, and justify the growing prejudice of our labor leaders against them.  The people should believe, as I think they do believe under the Federal Constitution and under the older ones of the States, that when a law is declared no law by a high court for being counter to the higher will of the people as expressed in their permanent constitution, it is not on a technicality, but because some great liberty right is infringed by it.  Yet it is a curious thing that whereas our people only got the power to legislate by democratic assemblies freely and completely from the year 1776, in hardly more than a hundred years after their conscious possession of that power we find a respectably strong popular movement attempting to reverse it, or, at least, to limit its field.  Most of our advocates of direct legislation by the people assume that a great mass of law-making would result in practice; probably the contrary is true; the referendum would destroy more than the initiative would create.  They would go back to a condition of things which, in theory at least, existed in the England of the early Saxon times; although, of course, in those days only the freemen, and no women, had the law-making vote.  Anyhow, it is curious that that representative government upon which we have been priding ourselves as the one great Anglo-Saxon political invention should be precisely the thing that we are now urged to give up.  In the Federalist there is much discussion as to whether it is possible to have so big a democracy as the United States, and the answer made by Hamilton was; “Yes, because we shall have representative government.”  But detailed discussion of the initiative we must leave for a later chapter.

Perhaps we begin to detect the prejudice in the general mind, which is notable in the works of a few earlier theorists, to prefer statute law to what is known as judge-made law, on that ground alone.  The writer is not of the school that admits there is such a thing as judge-made law, but believes the phrase to be a misnomer, at least in ninety-nine cases out of a hundred.  The whole theory of the English law is that it exists in and by the people and is known of them before it is announced by a judge, and although the extreme of this theory be somewhat metaphysical, it is certainly true that a judge is a very bad judge who does not decide a point of law apparently new or doubtful according to the entire body of English-American precedent, experience, rather than by his own way of looking at things.  If judges really made new law, particularly if they made it consciously, it would be more than “aristocratic”—­it would be simply tyrannical, and, of course, be unconstitutional as