A defense of federalism in key state cases.

• Author: Savage, David G.

The Supreme Court this year displayed a resurgent interest in federalism as the justices for the first time in 60 years put the brakes on the power of Congress, while giving the states victories in the area of health care spending, welfare, school desegregation, prisoners' lawsuits and parole hearings. Like the new Republican majority on Capitol Hill, the talk at the Court suddenly focused anew on the proper balance of power between Washington and the states.

But the strongest assertion of support for state power came in the dissent to one of this year's notable setbacks, the 5-4 ruling that struck down the 23 state laws setting term limits for members of Congress.

"The ultimate source of the Constitution's authority is the consent of the people of each individual state, not the consent of undifferentiated people of the nation as a whole," wrote Justice Clarence Thomas, speaking for the dissenters in U.S. Term Limits vs. Thornton. "Because the people of the several states are the only true source of power, the federal government enjoys no authority beyond what the Constitution confers...As far as the federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them."

Thomas's defense of state power was signed by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Antonin Scalia. The swing vote in the term limits case, Justice Anthony M. Kennedy, said he agreed that federalism is the unique feature of the American constitutional system, but he nonetheless concluded that terms for federal officeholders must be set at the national level, not by each state.

That setback for the states was offset by the remarkable ruling in U.S. vs. Lopez, which struck down the federal Gun-Free Schools Zones Act of 1990. It marked the first time since 1935 the high court has thrown out a federal law on the grounds that Congress exceeded its authority under the Commerce Clause. In recent decades, it has been repeated as a legal truism that Congress can legislate in any area where it believes doing so is in the national interest. Now, however, thanks to the Lopez ruling, that legal truism is no longer true.

"We start from first principles. The Constitution creates a federal government of enumerated powers," wrote Chief Justice Rehnquist for the 54 majority. He quoted James Madison's statement that the powers of the federal government "are few and defined," while those that "remain in...