nd it is therefore the
interpreter of the Fundamental Law and the protector of the Fundamental
Law, as against all other laws of the Legislature that may violate it, not
to say arbitrary acts of the Executive that may neglect it.

It must be so. There is no other way to protect the guarantee of
fundamental rights written carefully in a people's constitution. Without
some such provision a Constitution might be written in water, and its
guarantees set aside by any powerful executive, or any executive not
instantly answerable to the people's will. A provision of this kind is,
therefore, a necessary democratic safeguard. It is true that in the United
States the judicial review of the Supreme Court over legislative and
executive acts has led to unfortunate decisions and much acrimonious
discussion. The evils of an institution are always apparent, and no
institution but has its evils. The evils that would have come into
existence had that institution not been there, however, are not apparent.
They are the incalculable part of the bargain; and, being incalculable,
are inevitably neglected in argument. Yet they may prove to be the
overwhelming factor of the argument. So it is in this case. It would be
blindness to neglect it. The mere existence of the Judicial Review in the
United States has unquestionably prevented many an arbitrary act of the
Executive in defiance of the rights ensured by the Constitution; and if
the Supreme Court has, as it undoubtedly has, abused its power of
interpretation, the remedy is, not to sweep away that Judicial Review, and
so to jeopardise the provisions of the Constitution, but to amend the
Constitution in plainer terms, or to amend the Supreme Court. For it is
plain that without Judicial Protection of the Fundamental Law (as the
Judiciary is required to protect, interpret and enforce the ordinary law)
its clearest provisions could be neglected at pleasure.

I may take only one instance. Article 9 of the Constitution protects the
right of free expression of opinion, the right of free assembly, and the
right of forming associations not opposed to public morality. Now it
hardly needs to be said that no Government likes the expression of
opinions hostile to itself. And no Government likes associations formed to
bring its hour to an end. Under the Constitution the minorities of the day
have the honest chance of becoming the majorities of the morrow in a
peaceable manner. But what would be the worth o