“It is emphatically the province and duty of the judicial department to say what the law is.”

—United States Supreme Court, 1803

In the autumn of 1802, Marshall and his fellow justices resumed their duties on circuit. Rather than precipitate a crisis with the Republican majority in Congress over the new Judiciary Act, the chief justice chose to respect its provisions, hoping thereby to steer the Court away from conflict. It was a decision that reflected Marshall’s basic political moderation and conformed to his strongly held view that the judiciary should remain nonpartisan—a view that, in 1802, was shared neither by the irreconcilable in his own party nor by the radical wing of the Republicans. Above all, it was consistent with his understanding of the Constitution. Each branch of government was entrusted with specific responsibilities, and Congress was given explicit authority to organize the lower courts. Marshall might disagree with the manner in which congressional discretion had been exercised, but he was not about to challenge the plenary nature of that discretion.

As chief justice, Marshall was assigned by the Judiciary Act of 1802 to the fifth circuit, comprising the districts of Virginia and North Carolina. This assignment was fortunate given that Bushrod Washington was also from Virginia and Alfred Moore from North Carolina. Had there been any legislative hostility toward Marshall when the act was passed, he could easily have been given a more distant posting. As it was, the fifth circuit was the most convenient he could possibly have had, for it meant he could discharge the bulk of his duties without leaving home. The Virginia circuit met in Richmond and was the nation’s busiest. The North Carolina circuit. which convened in Raleigh, was far less active, and required Marshall’s presence for less than a week at a time.

Despite Marshall’s determination to shield the Court from partisan politics, the High Federalists were unwilling to let matters rest. Convinced that the repeal of the Judiciary Act of 1801 was the opening salvo of a Republican campaign to dismantle the entire federal judiciary and perhaps even the Constitution itself, the party’s hard core went on the offensive. Their initial gambit was to have the repeal measure quickly declared unconstitutional, but this was frustrated by the new Judiciary Act, which delayed the next session of the Supreme Court until February 1803. Their next maneuver was an attempt to persuade the justices to refuse to ride circuit. Such a refusal would have vitiated the Republican substitute legislation and would have created a constitutional crisis from which the High Federalists hoped to benefit. That strategy came to naught as well when Marshall and his colleagues refused to cooperate. The irreconcilable were left with four options, all of which they began to pursue vigorously.

The first element of the High Federalist assault involved a public campaign calling upon Marshall and his associates to declare the repeal act unconstitutional when the Court reconvened. Next, the High Federalists planned to have the displaced circuit judges, led by Oliver Wolcott, petition Congress to be reinstated. Third, they made preparations to introduce a number of test cases into the circuit courts, hoping eventually to carry them forward to the Supreme Court. Finally, the pending litigation of William Marbury and his associates was seen as another opportunity to whip up public support. The inevitable result of this four-pronged attack was to exacerbate an already delicate political situation and to widen the division between the two parties—exactly what Marshall and Jefferson had hoped to avoid.

The issue between the High Federalists and the justices of the Marshall Court was joined first on September 18, 1802, when Bushrod Washington opened circuit court in Hartford, Connecticut. Roger Griswold, a charter member of the High Federalist braintrust, used the occasion to challenge the authority of the circuit court to hear two cases then pending, insisting that the judges appointed by Adams still held office and that their courts were the appropriate venue. Washington immediately dismissed Griswold’s motion and ordered that the docket be called.

A similar incident occurred shortly afterward in Boston when Justice Cushing called the first circuit to order. Theophilus Parsons, another High Federalist chieftain (and subsequently chief judge of the supreme judicial court of Massachusetts), questioned the constitutionality of the court, at which point Cushing adjourned proceedings until the next day. During the intervening twenty-four hours the judges evidently made it plain how they intended to rule, because when the court reconvened, Parsons, "very much mortified," dropped his plea and the court resumed its business. In New Jersey, another test case was mounted when one of the deposed midnight judges brought suit before Justice Paterson contesting the constitutionality of the repealing act of 1802. That, too, was summarily dismissed.

The principal High Federalist assault was reserved for the fifth circuit in Richmond, where Marshall was presiding. Once again, it was the chief justice’s old friend Charles Lee who led the attack. The issue involved an earlier judgment won by a Maryland resident, John Laird, against Hugh Stuart, a citizen of Virginia, in one of the circuit courts that had been abolished by the Republican Congress. The judgment of that court was now before Marshall for execution. Lee immediately challenged Marshall’s authority to hear the matter. He repeated the arguments made by Griswold and Parsons that the Repeal Act of 1802 was unconstitutional, and he questioned Congress’s authority to compel the justices of the Supreme Court to ride circuit. "If it be said that the practice from the year 1789 to 1801 is against us, we answer that the practice was wrong, that it crept in unawares, without consideration and without opposition." Marshall dismissed both of Lee’s arguments and ordered the judgment in favor of Laird to be executed. Lee thereupon appealed Marshall’s decision to the Supreme Court (Stuart v. Laird), thus setting the stage for the final High Federalist challenge to Congress’s actions in 1802.

In going forward with their appeal, the High Federalists once again betrayed their sense of unreality. Bushrod Washington, Cushing, Paterson, and Marshall had all ruled against them on circuit, and there was little likelihood that the justices would reverse themselves come February. But the party’s irreconcilable were determined to press on, confident that their position was correct. That moral certitude unsettled the radical Republicans—who should have known better—and the political rhetoric escalated. The Supreme Court unwillingly now became the focus of the struggle over the judiciary that had commenced two years earlier on the floor of Congress.

Marshall was not affected by the High Federalist offensive. His dark mood of autumn had passed, and he had emerged from it more resolved than ever to extricate the Court from the morass of partisan politics. Before he could confront that challenge, however, there were circuit court duties to complete. Shortly after Christmas, Marshall set out for Raleigh and his first session of court in North Carolina. The distance from Richmond to Raleigh over the post road was 165 miles, and the weather being fair, Marshall made the trip in three days. Like Richmond, which had inherited the mantle of government from Williamsburg, Raleigh had recently become the capital of North Carolina. The state government had moved to Raleigh from coastal New Bern in 1792, and the new capital had all the trappings of a piedmont frontier town as it struggled to accommodate the various legislators and state officials who descended upon it. Jonathan Mason, a former United States senator from Massachusetts, described the town as "a miserable place, nothing but a few wooden buildings and a brick Court House."

In 1803 Raleigh’s population numbered fewer than 1,000. Marshall found lodging in the boardinghouse of Henry H. Cooke—a rickety frame structure about a quarter of a mile from the courthouse. The rooms were spartan, and Marshall had to gather his own wood and make his own fires. But for the next thirty-two years he stayed with Cooke whenever he held court in Raleigh."Everything here [is] as pleasant as I could expect," he wrote to Polly on January 2, and it is obvious from his letter that his buoyancy had returned. You will laugh at my vexation when you hear the various calamities that have befallen me. In the first place when I came to review my funds, I had the mortification to discover that I had lost 15 silver dollars out of my waist coat pocket. They had worn through the various mendings the pocket had sustained and sought their liberty in the sands of Carolina. I determined not to vex myself with what could not be remedied and ordered Peter to take out my clothes that I might dress for court when to my astonishment and grief after fumbling several minutes in the portmanteau, staring at vacancy, and sweating most profusely he turned to me with the doleful tidings that I had no pair of breeches.

You may be sure this piece of intelligence was not very graciously received. However, after a little scolding I determined to make the best of my situation and immediately set out to get a pair made. I thought I should be a sans culotte only one day and that for the residue of the term [December 30, 1802-January 5, 1803] I might be well enough dressed for the appearance of the first day to be forgotten. But, "the greatest of evils, I found, was followed by still greater!" Not a tailor in town could be prevailed on to work for me. They were all so busy that it was impossible to attend to my wants however pressing they might be, and I have the extreme mortification to pass the whole term without that important article of dress I have mentioned.

Because of the repeal of the Judiciary Act of 1801, the circuit court had not met for almost a year, and Marshall found a full docket awaiting him. One case, Ogden v. Blackledge, which eventually came before the Supreme Court, permitted him to restate his views concerning the separation of powers and the necessity of preventing legislative encroachment upon the courts. Marshall’s comment was gratuitous, but his decision upholding the claims of British creditors against citizens of North Carolina was subsequently sustained by the high court.

On the bench in Raleigh, just as in Richmond, Marshall was careful not to betray any sign of political partisanship—a determination that, with the continuing exception of Chase, his colleagues now shared. The Raleigh Register reported that his charge to the grand jury in Ogden v. Blackedge was "concise and appropriate, fully explaining their duty, without the least political intermixture.’’ The Minerva, another North Carolina paper, called it "elegant and learned." Consistent with the cautious judicial posture Marshall had adopted, he declined to give copies of his jury charge to the press. According to the Minerva, "the Chief Justice [said] that he had laid it down as a rule from which he did not intend to depart, not to allow his charges to be published."

Marshall’s efforts to avoid partisanship would soon be tested. When Congress reconvened in January 1803, the High Federalists launched their offensive. The Supreme Court was scheduled to meet on February 7, with both Marbury v. Madison and Stuart v. Laird on the docket. On January 27, in accordance with the strategy previously agreed upon, eleven of the deposed circuit judges presented personal memorials to the House and Senate requesting Congress to define their status and urging that the issue of their compensation be referred to the Court. The Federalist press devoted considerable space to the appeal, although the Aurora perhaps more accurately noted that "The judges… this day brought forth the mouse from the mountain."

The ensuing debate was viciously partisan. In the House, the Federalists urged that the constitutionality of the Repeal Act be referred to the Supreme Court. The Republicans responded that the people, not the courts, were the judges of the constitutionality of acts of Congress. "If the petitioners can bring their case before the Supreme Court, let them do so," said John Nicholas of Virginia. "If the Supreme Court shall arrogate this power to themselves, and declare our law to be unconstitutional, it will then behoove us to act. Our duty is clear." With the threat of legislative reprisal in the air, the House rejected the judges’ petition, thirty-seven voting in favor, sixty-one against.

The debate in the Senate was even more heated, and the Supreme Court again became the focal point of the controversy. The Federalist onslaught was led by Gouverneur Morris of New York, Jonathan Dayton of New Jersey, and James Ross of Pennsylvania. The Judiciary, said Ross, was "the only body to which we could look" for protection from laws that were unconstitutional. "The Constitution is the supreme law: it is the duty of a judge to compare acts of the Legislature with this great charter, and pronounce whether the special delegated power [of Congress] has been exceeded or not."

The Republicans answered that the judges’ petition "was nothing more than an attempt to inflame the public mind" and deplored the divisive tactics of their opponents. "Would not peace and union have been better promoted by keeping the subject out of sight, and not by attempting…to irritate party animosities?" asked Wilson Cary Nicholas of Virginia. None of the Republican senators questioned the Supreme Court’s authority to declare an act of Congress unconstitutional. But as John Breckinridge of Kentucky noted, since "the courts can decide that question without our interference," why should the Senate become involved? Like the House, the Senate voted down the judges’ petition, although the vote was much closer, 13-15.

The High Federalists continued to press forward. On January 28, the day after the House rejected the memorial of the former judges, Senator John Howard of Maryland introduced a request from William Marbury, Robert Hooe, and Dennis Ramsay for a certified copy of the Senate’s executive journal from March 1801, attesting their confirmation as justices of the peace. Howard ingenuously observed that "the request was so reasonable that he concluded it would pass without objection."

In raising Marbury’s request before the Senate, the High Federalists’ purpose was twofold. Secretary of State Madison had not responded to the Supreme Court’s show cause order, nor had he provided the claimants with the documentation they sought pertaining to their original appointments. As a result, the trio of litigants could offer no tangible proof that their commissions had been withheld. A copy of the Senate’s journal would at least establish that they had been duly appointed. A more important consideration, however, was that by raising the issue on the eve of the Supreme Court’s February term, the High Federalists were putting pressure on the justices. The party press reported the debate extensively, and, for the first time since December 1801, public awareness rekindled. If Marshall and his colleagues had hoped to dispose of Marbury’s request quietly, the party’s militants were serving notice that this would not be possible.

The Senate Republicans recognized immediately that Marbury and his colleagues were pawns in a game of constitutional confrontation initiated by the High Federalists. John Breckinridge attacked the request for the Senate journal as an unwarranted attempt to assail the president. His action converted the issue into a showdown between Jefferson and the Court—raising the stakes even higher. "The suit is now pending on a mandamus to the secretary of state. The Senate ought not to aid the Judiciary in their invasion of the rights of the Executive."

Other Republicans picked up the theme. General James Jackson of Georgia, who, with Breckinridge, was one of the Senate’s most radical Republicans, said he would "never lend his aid to set the Judiciary above the Executive." Robert Wright of Maryland called Marbury’s request "an audacious attempt to pry into Executive secrets, by a tribunal which had no authority to do any such thing; and to enable the Supreme Court to assume an unheard of and unfounded power, if not despotism." DeWitt Clinton of New York noted that "a great Constitutional question is now agitated in [the Supreme] Court, involving the right to control the Executive." The Republicans eventually defeated Marbury’s request, again in a 13-15 vote, but the High Federalists had succeeded in making the authority of the Supreme Court the central issue in their campaign. Marbury v. Madison, which had begun as a routine exercise in judicial procedure fourteen months earlier, was now center stage. Marshall’s effort to remove the judiciary from partisanship had been thwarted by the irreconcilable in his own party. The Aurora was right on target when it referred to William Marbury as "the person used by the tories to blow up this bubble."

The Supreme Court was now the focus of the nation’s partisanship. Despite the long cooling off period since the Court last met in December 1801, and notwithstanding the justices’ evident reluctance to become involved, Committee Room 2 had become the venue where the animosity between the High Federalists and their radical opponents would be played out. In Marbury the Court was being asked to issue a writ of command to Jefferson’s secretary of state; in Stuart v. Laird, it was being challenged to overturn the Republican-passed Judiciary Act of 1802. Both cases threatened to produce a constitutional crisis, which Marshall recognized the Court could not win. Even more seriously, each threatened to upend the nonpartisan stance the justices had adopted and, with it, the Supreme Court’s legitimacy as the nation’s highest tribunal.

First to be argued was Marbury v. Madison, which, unlike virtually all cases to come before the Supreme Court, was one in which the justices sat as a trial court. Marbury’s request for a writ of mandamus was not an appeal from a lower court holding but an original action brought before the Supreme Court under section 13 of the old Judiciary Act of 1789. Marbury and his associates had to demonstrate why the writ should be issued, and on February 10, Charles Lee opened his argument on their behalf. Madison, who still had not responded to the Court’s order to show cause, continued to ignore the matter, which gave the proceedings an especially eerie quality. Not only were the justices sitting in judgment in an original action, but one of the parties to the case was not even represented—a bold challenge to the Court’s authority.

Because the Senate had refused to provide an extract of its executive journal, Lee was confronted at the outset with the necessity of proving that his clients had been nominated and confirmed as justices of the peace. The one person who could provide direct evidence on that point was Marshall himself who, as secretary of state, had affixed the seals to their commissions. In fact, it was actually Marshall who had been remiss in seeing that the documents were sent out. Lee chose not to call the chief justice and initially attempted to build his case on the testimony of the State Department’s chief clerk, Jacob Wagner, and his assistant, Daniel Brent. Both proved to be unwilling witnesses and claimed executive privilege. Despite their reluctance, Marshall ordered them to be sworn. They could object to any specific question they might be asked, he said, but the Court would decide whether they were required to answer. The collision of the Court and the executive branch, which both Marshall and Jefferson had attempted to avoid, appeared to be at hand.

Wagner and Brent chose not to press the issue of executive privilege. Under oath, Wagner testified that he was working as Jefferson’s personal secretary at the time of the transition and had no direct knowledge of the justice of the peace commissions. He said he had heard that the commissions for Marbury and Robert Hooe had been signed by President Adams, but that by some accident the one for Dennis Ramsay had not been. When Lee asked, "who gave you that information?" Wagner declined to answer and Marshall upheld his refusal, saying that the question was not pertinent. Brent, also under oath, said he had seen the commissions but did not think they had been sent out. He did not know what had happened to them.

Lee called as his next witness Attorney General Levi Lincoln, who had replaced Marshall as interim secretary of state the day after Jefferson’s inauguration. Lincoln presumably had been aware of Jefferson’s order not to deliver the commissions, but as acting secretary of state, and therefore the president’s principal deputy, his claim to executive privilege was compelling. Lincoln was also the nation’s attorney general, however, and an of officer of the Court. His position was delicate, and he asked Marshall whether he was required to testify. On the one hand, said Lincoln, he respected the jurisdiction of the Court; on the other, he felt himself bound to maintain the rights and privileges of the executive. If the Court decided that his testimony was essential, he asked that Lee’s questions be put in writing so that he might have time to consider them.

Marshall was sympathetic to Lincoln’s plight. He granted the attorney general’s request and instructed Lee to put his queries in writing. Lee wrote out the four questions he wished to ask, and the chief justice, after consulting his colleagues, told Lincoln that the Court felt he should answer the questions, but that he could take whatever time he needed to consider them. Marshall said that Lincoln need not disclose anything that was confidential and that he certainly need not incriminate himself. It was apparent from the interchange between Marshall and Lincoln that each was doing his utmost to prevent the issue from escalating into a full-blown confrontation between the executive branch and the Court. Lincoln deferred to the Court’s authority; Marshall made it plain that the Court would respect executive privilege.

At that point Lincoln requested that he be given until the following morning to reply, noting that he was due shortly at a committee hearing dealing with claims against the United States submitted by the state of Georgia. Marshall agreed, and the Court adjourned. The first day’s testimony was complete. It had been a trying experience. The Supreme Court was ill-suited to the role of a trial court, and taking direct testimony was time-consuming. It was evident to those in attendance that the justices were uncomfortable, and Madison’s failure to respond continued to cast a shadow over the proceedings.

When the Court reconvened on Friday, February 11, Lincoln roof; the improvised witness stand. He noted his objection to Lee’s first question. stating that he could not say what had happened to the commissions because he did not know whether Secretary Madison had ever had possession of them. Marshall upheld Lincoln’s objection and ruled that the question was immaterial. Lincoln thereupon responded to Lee’s three remaining interrogatories. He said that he had seen the commissions and that they had been signed by President Adams and sealed with the Great Seal of the United States. But he told the Court that he did not recollect whether any of them had been made out to Marbury, Hooe, or Ramsay. He said that he also did not know whether any of the commissions had been sent out, but did not believe that any had been, At that point Lincoln was excused. With considerable tact and a great deal of understanding, the chief justice and the attorney general had avoided the collision the High Federalists were trying to engineer. In requiring that Lee put his questions in writing, the Court had preempted the possibility of a dramatic interrogation of Lincoln that would undoubtedly have fanned the flames of partisanship.

The fact is, the Federalists had had little success thus far in making their case. As his final piece of evidence, Lee submitted an affidavit made out by James Marshall, the chief justice’s brother, attesting to the fact that he had seen the commissions in the office of the secretary of state, that he had at tempted without success to deliver a number of them in Alexandria, and that he had returned them to the State Department. Lee asserted that the existence of the commissions was thus proved, and moved on to his closing argument.

When Lee concluded, Marshall asked Lincoln whether he wished to respond. Lincoln said he had received no instructions from Secretary Madison and therefore would remain silent. According to press reports, Marshall was uncomfortable that the traditional adversarial process had not been followed. Eager to hear argument from the opposing side, he said that the Court "would attend to the observations of any person who was disposed to offer his sentiments." When no one responded, Marshall said that the Court would postpone judgment and moved on to other business.

The Supreme Court was now in a no-win situation. It had avoided a clash between the Jefferson administration and its High Federalists opponents in the courtroom, but an even greater collision was in the of offing. If the Court issued a writ of mandamus, it was abundantly clear that Madison would ignore it. Since the Court lacked the means to enforce the writ, the judiciary would be exposed as powerless. Executive authority would have prevailed simply by standing aside and doing nothing. Public opinion would back Madison; the Republicans would wax triumphant; and another check on majority power would have been dissipated.

On the other hand, if the Court did not issue the writ to which Marbury was entitled, and which was unmistakably provided for by statute, the judiciary would be deemed a paper tiger. It would be seen as unwilling to confront the Republican behemoth, and an unworthy guardian of constitutional principle. For two weeks, Marshall and his colleagues wrestled with the dilemma. In the interim, Chase was taken ill and the Court removed its sessions to the living room of nearby Stelle’s Hotel to accommodate him—Stelle’s Hotel, a three-story brick structure on the present site of the Library of Congress, had become the justices’ common lodging after Conrad and McMunn’s was destroyed in a fire.

Some of the pressure that had been building was lifted when the High Federalists turned their fire on Jefferson over his reluctance to take action against Spain for its closure of the port of New Orleans. The crisis on the lower Mississippi had been festering for several months, and on Monday, February 14, three days after the conclusion of Lee’s argument in Marbury v. Madison, Senator James Ross of Pennsylvania introduced legislation instructing the president to use military force to take possession of New Orleans and calling 50,000 state militia into national service to assist. The resolution was a serious challenge to the president’s authority to conduct the nation’s foreign relations. It was also a deliberate effort to scuttle a peaceful settlement. Debate on the measure consumed the Senate and the administration for the next two weeks, diverting attention from the Court and the pending decision on Marbury’s request.

On Thursday, February 24, while the Senate debate still raged, the justices assembled in the living room of Stelle’s Hotel to announce their decision. Once again their holding was unanimous, and once again it was the chief justice who spoke for the Court. Marshall began slowly, reading the opinion in the same low but persuasive voice that characterized his years at the bar. He noted that Madison had not shown cause why the writ of mandamus should not be issued. A less astute, or a more partisan, judge might have ruled for Marbury by default. Such a decision would have been defensible under the normal rules of the adversarial process and would have precipitated the constitutional crisis the High Federalists longed for. But a constitutional crisis was precisely what Marshall sought to avoid. Thus, having acknowledged Madison’s noncompliance, the chief justice let the matter rest. "The peculiar delicacy of this case," said Marshall, "the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the Court is founded."

Marshall turned to the question of whether Marbury was entitled to his commission as a justice of the peace. By tackling this question first, the chief justice was throwing a sop to the High Federalists. He traced the legislation by which the office was created, examined the appointment process specified by the Constitution, and noted that the process was complete when the president signed the commissions and the secretary of state affixed the seal. Delivery of the documents was not required. Marshall said that since Marbury’s commission had been signed and sealed, he was duly appointed as a justice of the peace for a term of five years. That appointment was not revocable but was vested in Marbury’s legal rights, "which are protected by the laws of this country. To withhold his commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right."

Having established Marbury’s right to the office, Marshall then asked whether the laws afforded a remedy. "The very essence of civil liberty," he said, "consists in the right of every individual to claim the protection of the laws whenever he receives an injury." Marshall’s voice quickened as he moved along. As an advocate, he had been renowned for commencing his summations in a halting and disjointed manner, picking up momentum as he proceeded, and soaring to a tightly crafted conclusion. To those listening in the living room at Stelle’s, it seemed inevitable that the Court was building its case to issue the writ Marbury had requested.

Marshall briefly recited several instances in which executive departments had been held accountable by the judiciary. He then turned to the nature of presidential authority. Marshall was now on the familiar ground he had laid out in his speech to the House of Representatives on the Robbins case. The distinction he had drawn between political questions and legal issues was about to become the constitutional law of the United States. The Republicans in the audience pricked up their ears when Marshall said that the Constitution invested the president "with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience."

To assist him in his political role, Marshall said, the president was entitled to appoint certain subordinates who were responsible exclusively to him. "In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive."

Marshall noted that the secretary of state, in particular, is required to conform to the president’s will. "He is the mere organ by whom that will is communicated. The acts of such an of officer, as an of officer, can never be examinable by the courts."

For those in attendance, the direction of the Court appeared to have changed. As a former secretary of state, Marshall’s words carried special meaning, and he was now presenting a powerful defense of executive prerogative. If the partisans of 1803 had reflected for a moment, they would have realized that that position was perfectly consistent with the moderate federalism Marshall had always espoused and undoubtedly provided a common denominator for his colleagues on the Court.

Marshall was not finished. The High Federalists had initially thought the Court was about to issue the writ of mandamus. The Republicans now anticipated that it would not. The chief justice again shifted ground. He said that the secretary of state, in addition to his political responsibilities, also had certain purely administrative duties. These were prescribed by law and involved no discretion. When those duties pertained to the rights of individuals, a person "who considers himself injured has a right to resort to the laws of his country for a remedy." Marshall said that Marbury had a legal title to the office to which he had been appointed and a consequent right to his commission. Madison’s refusal to deliver it was "a plain violation of that right," and Marbury was fully entitled to seek redress in the courts.

The advantage shifted back to the High Federalists. Marshall had been speaking for over an hour (when complete, the decision would exceed 11,000 words) and was weaving an intricate pattern that riveted the attention of those who now crowded into the makeshift courtroom at Stelle’s. Word had spread quickly that the chief justice was delivering a momentous decision, and numerous members of the House and Senate had joined the regular practitioners in attendance. A constitutional crisis of epic proportions appeared to be in the making, and the audience hung on every word.

It was nearly noon when Marshall warmed to his conclusion. The only question remaining, he said, was whether Marbury "is entitled to the remedy for which he applies." That depended on two factors: "the nature of the writ applied for, and the powers of this Court." For the next twenty minutes, Marshall examined the nature of a writ of mandamus. Once again he balanced Marbury’s right to the writ with the delicacy of issuing a command to the secretary of state. For the first time, the chief justice took aim at the Republican critics of the Court. Is it not amazing, he asked, that "the assertion by an individual, of his legal claims, in a court of justice…should at first be considered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive? It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for one moment."

To reassure the nation at large, Marshall provided a powerful restatement of the judicial function. "The province of the Court," he said, "is, solely, to decide the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this Court."

Marshall said that Marbury’s petition, "so far from being an intrusion into the secrets of the cabinet," merely involved obtaining the copy of a paper to which "the law gives a right on the payment of ten cents." He then held that since no political discretion was involved, a writ of mandamus compelling Madison to do what the statute required was the appropriate remedy. "It only remains to be inquired whether it can issue from this Court."

Lee and Lincoln were now on the edge of their seats. Marshall had structured his decision to heighten the suspense. It was one o’clock and the tension palpable as the chief justice recited section 13 of the Judiciary Act of 1789, giving the Supreme Court the power to issue writs of mandamus. The statutory authority of the Court was clear, said Marshall, unless the law was unconstitutional.

With the outcome still in doubt, Marshall commenced the constitutional exposition for which Marbury v. Madison is famous. The Constitution, he said, vested the judicial power of the United States "in one Supreme Court, and in such inferior courts as Congress shall, from time to time, ordain and establish." The Supreme Court’s appellate jurisdiction was determined by Congress, but its original jurisdiction—those cases in which it sits as a trial court—was fixed by the Constitution. Marshall noted that the text of the Constitution was precise. The Supreme Court’s original jurisdiction was expressly limited to cases "affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party." That enumeration was complete and could not be increased by Congress. As a result, the authority Congress gave to the Supreme Court to issue writs of mandamus "appears not to be warranted by the Constitution." Congress had acted to expand the original jurisdiction of the Court as stipulated by the Constitution, and that, said Marshall, it could not do.

Could a law that was unconstitutional be enforced by the courts? According to Marshall, the question was deeply interesting, "but happily not of an intricacy proportioned to its interest." The people of the United States had established the Constitution as the supreme law of the land. It "organizes the government, and assigns, to different departments, their respective powers." The powers of Congress were limited. "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be [exceeded] by those intended to be restrained?" Like a stern schoolmaster lecturing errant pupils, Marshall observed that "It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it." Otherwise, the legislature may alter the Constitution at will. "Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it."

Marshall said it was absolutely clear that all of those who had framed written constitutions—an implicit reference to the various state constitutions—intended those documents to be supreme. As a result, "an act of the legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this Court, as one of the fundamental principles of our society."

Marshall was now defending the perimeter of judicial authority. In a sentence that has echoed through the years, the chief justice announced that "It is emphatically the province and duty of the judicial department to say what the law is." And then, the critical link in his argument: The Constitution was law. It could be interpreted by the courts in ordinary litigation. "If two laws conflict with each other, the courts must decide on the operation of each." If a law and the Constitution are in conflict, and if both apply to a particular case, "the Court must determine which of these conflicting rules governs the case. This is the essence of judicial duty."

At that point, Marshall’s conclusion was inescapable. If the courts are obliged to interpret the Constitution, and if the Constitution "is superior to any ordinary act of the legislature—the Constitution, and not such ordinary act, must govern the case to which they both apply."

Earlier in the Court’s decision, Marshall had recognized vast areas of political discretion that were not subject to judicial scrutiny. Now, in conclusion, he was driving home the point that the Constitution was a legal document and that, in matters of law, the decision of the Court was final. It was a principle, he said, "essential to all written constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."