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a court ought not “close [its] eyes on the constitution, and only see” the tax. Nor, if the legislature should “declare one witness … sufficient for conviction” of treason, could a court be expected to allow “the constitutional principle [to] yield to the legislative act.” No, “this is too extravagant to be maintained.” In these instances and elsewhere, “the language of the constitution is addressed especially to the courts,” and, therefore, “it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.” Thus, Marshall reasoned, when an ordinary law conflicts with the Constitution, it is the Court’s duty to apply the Constitution, not the ordinary law. 16
    The Court’s conclusion: The statutory provision that granted the Court the power to hear Marbury’s case as an original matter was unconstitutional, and so the Court could not give it effect. Therefore the Court could not hear the case (and it never did). As a result, it obviouslycould not issue a writ of mandamus. Marbury lost. And Madison, in effect representing Jefferson, won.
    M ARSHALL’S LEGAL REASONING was strong, although it is open to criticism, as are all opinions. A judicial opinion cannot logically prove that its result is correct; it can only explain the judge’s own reasons for having reached a particular conclusion, often in a case where much can be said on both sides. Still, one criticism is particularly striking. Numerous critics, including Thomas Jefferson, have pointed out that a court that lacks the legal power (that is, jurisdiction) to decide a case should not then go on to decide the merits of that case. How could Marshall, having ultimately found that the Court lacked the power to hear Marbury’s case, also have decided the merits of the case (that is, that Marbury was entitled to the mandamus even if the Court did not have jurisdiction to give it to him)? 17
    One possible modern answer to the criticisms is this: Had Marshall simply followed the ordinary jurisdictional rule, jumping directly to, and exclusively discussing, the constitutional issues, critics at the time might have wondered whether he really had to decide the great constitutional question of judicial review. They could reasonably have asked whether Marshall had reached out
unnecessarily
, that is, for political reasons, to claim that power for the Court.
    To show that the Court had acted not from political expediency but out of judicial necessity, Marshall had to make clear that Marbury’s claim satisfied each and every one of the statute’s requirements. Only then would it be
necessary
to move on to the great constitutional question of judicial review in order to avoid a legally incorrect decision (that is, a decision in Marbury’s favor). Marshall could not both show that he
had
to reach the constitutional questions and decide
nothing but
the constitutional questions. He could not follow what has become one canon of judicial decision making, namely, “try to avoid making constitutional decisions by deciding nonconstitutional matters first,” without ignoring a different canon of judicial decision making, namely, “where a court lacks jurisdiction, do not decide the merits of the case.”
    In a political world suspicious of Marshall’s efforts to expand theCourt’s power, a world where the Court’s basic judicial review power was itself yet undetermined, Marshall’s choice is understandable. By explaining why he could not rest his decision on nonconstitutional grounds, he would diminish the public’s concern that courts, armed with the power to decide constitutional questions, would reach out and decide them unnecessarily, thereby needlessly limiting the power of the legislature. They would decide constitutional questions only when they had to.
    I N A SENSE , both the criticisms and response are beside the point, for consider what Marshall did. He