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decision, Jefferson would answer Hotspur’s question in the worst possible way. When the Court called, the president would not come. Whatever the Court might say, it would have failed to act effectively.
    As it happened, Marshall, writing for a unanimous Court, brilliantly escaped the dilemma. The Court held that the law
did
entitle Marbury to his commission. And the opinion also adopted Hamilton’s theory of judicial review. Yet at the same time, the Court held that
Jefferson won the case
on constitutional grounds. Jefferson had no problem enforcing this decision—he simply continued to withhold Marbury’s commission. Thus the Court avoided the practical problem of enforceability.
    H OW DID THE C OURT accomplish this legal feat—worthy of the Great Houdini? It began by posing the case’s ultimate question as follows: Should the Court issue a writ of mandamus directing the secretary of state to deliver to Marbury his commission? It then pointed out that Marbury had a legal right to a copy of the commission. A statute made clear that once appointed as justice of the peace, Marbury had a legal right to the position for a term of five years. And once the president signed Marbury’s commission, he was legally “appointed.” The acts of affixing a seal to the commission and recording it were routine, that is, “ministerial act[s],” which another statute specifically required the secretary of state to undertake. And, once Marbury showed he had satisfied these legal obligations, the secretary could no more refuse to give Marbury a copy of the commission than a recording officer today could refuse to give a copy of a public document to someone who requests it and pays the copying fee.
    But the fact that Marbury has a legal right to the commission is not enough. Does the law give him the power to enforce that right, that is, does Marbury have a legal
remedy?
Again the Court answered yes,and for reasons that are not entirely technical. The United States is a “government of laws, and not of men.” Under such a government, “where there is a legal right, there is also a legal remedy.” Indeed, the “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” 10
    The Court noted some exceptions to this rule, and they are important. In particular, a
“political act”
of the president (or one of his “political or confidential” executive branch “agents”) was not “examinable in a court.” But whether such an act escaped judicial review “must always depend on the nature of that act.” The political acts that a court could not examine were at the least acts where “the executive possesses a constitutional or legal discretion.” Here neither president nor secretary possessed discretion. Indeed, “the law in precise terms directs the performance of an act, in which an individual is interested.” If a specific duty was assigned by law and individual rights depended on the performance of that duty, then the person who considered himself injured must be able to “resort to the laws of his country for a remedy.” 11
    Still, not even the fact that Marbury had both a legal right and a legal remedy was sufficient. The Court still had to ask whether it had the power to grant Marbury that legal remedy. That is, did the law entitle Marbury to have the
Supreme Court
issue a writ of mandamus, that is, an order that would require a government official, namely, Madison, to deliver the commission to Marbury? Chief Justice Marshall quickly answered that the federal jurisdictional
statute
to which Marbury pointed—a statute that defined the kinds of cases the Court could hear and that seemed to offer the “perfect” jurisdictional solution—answered this question yes. The statute said that the Supreme Court may “issue
 … writs of mandamus
, in cases warranted by the principles and usages of law, to … persons holding