ist of "executive power" was Alexander Hamilton, who
appealed to the clause in defense of Washington's proclamation of
neutrality, issued on the outbreak of war between France and Great
Britain. Prompted by Jefferson to take up his pen and "cut him to pieces
in face of public," Madison shifted position, and charged Hamilton with
endeavoring to smuggle the prerogative of the King of Great Britain into
the Constitution via the "executive power" clause.[39] Three years
earlier Jefferson had himself written in an official opinion as
Secretary of State: [The Executive branch of the government],
"possessing the rights of self-government from nature, cannot be
controlled in the exercise of them but by a law, passed in the forms of
the Constitution".[40]

This time judicial endorsement of the broad conception of the executive
power came early. In laying the foundation in Marbury _v._ Madison for
the Court's claim of power to pass on the constitutionality of acts of
Congress, Marshall said: "The government of the United States has been
emphatically termed a government of laws and not of men".[41] Two pages
along he added these words:

By the constitution of the United States, the President is
invested 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 aid him in the performance of
these duties, he is authorized to appoint certain officers,
who act by his authority and in conformity with his orders.

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.[42]

From these words arises the doctrine of Political Questions, an escape
clause from the trammels of judicial review for high executive officers
in the performance of their discretionary duties. The doctrine was
continued, even expanded, by Marshall's successor. In Luther _v._
Borden,[43] decided in 1849, the Court was invited to review the
determination by the President that the existing government of Rhode
Island was "republican" in form. It declined t