all, but only to give the right to issue the writ where
the jurisdiction already existed. What the Court should have done,
allowing its view of Article III to have been correct, was to dismiss
the case as not falling within the contemplation of section thirteen,
and not on the ground of the unconstitutionality of that section.

Marshall's opinion in Marbury vs. Madison was a political coup of the
first magnitude, and by it he achieved half a dozen objects, some of
the greatest importance. In the first place, while avoiding a direct
collision with the executive power, he stigmatized his enemy Jefferson
as a violator of the laws which as President he was sworn to support.
Again, he evaded the perilous responsibility of passing upon the
validity of the recent Repeal Act in quo warranto proceedings, such as
were then being broached. * For if the Supreme Court could not issue the
writ of mandamus in suits begun in it by individuals, neither could it
issue the writ of quo warranto in such suits. Yet again Marshall
scored in exhibiting the Court in the edifying and reassuring light of
declining, even from the hands of Congress, jurisdiction to which it was
not entitled by the Constitution, an attitude of self-restraint which
emphasized tremendously the Court's claim to the function of judicial
review, now first definitely registered in deliberate judicial decision.

* See Benton's "Abridgment of the Debates of Congress," vol. II,
pp. 665-68. Marshall expressed the opinion in private that the repealing
act was "operative in depriving the judges of all power derived from the
act repealed" but not their office, "which is a mere capacity, without
new appointment, to receive and exercise any new judicial power which
the legislature may confer." Quoted by W. S. Carpenter in "American
Political Science Review," vol. IX, p. 528.

At this point in Marshall's handling of the case the consummate debater
came to the assistance of the political strategist. Every one of his
arguments in this opinion in support of judicial review will be found
anticipated in the debate on the Repeal Act. What Marshall did was to
gather these arguments together, winnow them of their trivialities,
inconsistencies, and irrelevancies, and compress the residuum into a
compact presentation of the case which marches to its conclusion with
all the precision of a demonstration from Euclid.

The salient passages of this part of his opinion are the following: