On the other hand, the greatest judges have often, in delivering
the opinion of the court, asserted doctrines the consideration of
which was not essential to the decision, and later retracted the
assertion on fuller consideration or seen the court in a later
case retract it for them.

Two of the great opinions of Chief Justice Marshall are Marbury
_v._ Madison[Footnote: 1 Cranch's Reports, 137.] and Cohens
_v._ Virginia.[Footnote: 6 Wheaton's Reports, 264.] In the
first the court held that it had no jurisdiction to command the
Secretary of State to deliver a commission executed under the
preceding administration, because, although Congress had assumed
to confer it, Congress had no power to do so; and in defending
this position Marshall observed that the Constitution defined the
jurisdiction of the Supreme Court over cases brought there in the
first instance, and that in this clause of the Constitution
affirmative words had the force of negative words so far as to
exclude jurisdiction over any other cases than those specifically
mentioned. In the second case this observation was relied on by
Virginia to defeat the power of the court to review a State
judgment. But, said the Chief Justice, "it is a maxim not to be
disregarded that general expressions in every opinion are to be
taken in connection with the case in which those expressions are
used. If they go beyond the case they may be respected, but
ought not to control the judgment in a subsequent suit when the
very point is presented for decision.... In the case of Marbury
_v._ Madison, the single question before the court, so far
as that case can be applied to this, was whether the legislature
could give this court original jurisdiction in a case in which
the Constitution had clearly not given it, and in which no doubt