ABSTRACT

Any student of or participant in American government quickly understands that it is distinctive in at least three ways: our constitutional system incorporates separation of powers, judicial review, and federalism. All three were manifestations of the founders’ concern that power be divided and so limited. Oddly enough, they did not include in the constitution they were drafting any specifics about the three special features they were writing into it. What they intended as far as separation of powers goes can only be gleaned by ex post facto analysis of the multiple relationships implicit in the first three articles of the Constitution. And although judicial review has a taproot in the Supremacy Clause (Article VI, Section 2), its fuller exposition waited for Alexander Hamilton in Federalist No. 78 and John Marshall in Marbury v. Madison and McCulloch v. Maryland.