Furthermore, state legislatures were granted greater responsibility in their ability to appropriate federal block money in several of the 1990s laws, assuring their growing prominence in devolution.

The States

During the last decade, there is growing evidence of increasing backlash by the States against federal overreaching and interference in local affairs. Eight states (Arizona, California, Colorado, Hawaii, Illinois, Missouri, Oklahoma and Pennsylvania) passed resolutions in 1994 that asserted state sovereignty under the Tenth Amendment and called on the federal government to "cease and desist" from actions that exceed the constitutional delegation of powers from the states. Seven states (Alabama, South Dakota, Arizona, California, Delaware, Michigan and Pennsylvania) have passed legislation requesting that the state's federal delegation appear before the state legislature to discuss unfunded mandates and other federally imposed requirements.

Four states (Arizona, California, Florida and Texas) have filed suit against the federal government to recoup costs incurred due to the presence of illegal immigrants. As the federal government has a constitutional responsibility to control the border, it was reasoned that the federal government's failure should not burden the state's taxpayers.

The Supreme Court

As has been suggested by some, federalism of state sovereignty and enumerated, limited national powers depends on judicially enforced limitations on the national government's power. In a review of the Supreme Court's term during 1999-2000, it would appear that those justices of a moderate-conservative political frame had provided votes for federalism and appeared to some as having understood their major role in helping to restore federalism. The Supreme Court has been described as following a trend in which the term of the Court focused primarily on the structural principles of the Constitution that began in 1995 in which there was an ongoing effort by the justices to restore the allocation of power among the branches of the government. Through the rulings of the Court, greater clarity was given to questions surrounding federalism as the Court worked to establish a foundation upon which federalist principles prohibiting national constituencies.

A number of landmark cases have been identified that offer evidence of the Courts efforts to restore federalism. United States v. Morrison has been identified as one of the most significant rulings favoring federalism during the 1999 term. Chief Justice Rehnquist and Justices Kennedy, O'Connor, Scalia, and Thomas, in their ruling on this case, annulled the civil remedies provision of the 1994 Violence against Women Act, which authorized victims of gender-motivated violence to sue their aggressors for damages in federal court. As ruled by the Justices, in a 5-4 opinion delivered by Chief Justice Rehnquist, the Court held that Congress lacked the authority to enact a statute under the Commerce Clause or the Fourteenth Amendment since the statute did not regulate an activity that substantially affected interstate commerce nor did it redress harm caused by the state. Chief Justice Rehnquist wrote for the Court that if the allegations made by Brzonkala were true, justice and remedy were surely deserved; however, as clarified by the Court, under the federal system, that remedy must be provided by the state of Virginia rather than a U.S. federal court. The ruling of the Court firmly established that the Fourteenth Amendment requires only state action while limiting the powers of Congress to reach into the lives of private citizens.

Another major Supreme Court decision in favor of federalism was made in 1995 in the Court's ruling on United States v. Lopez.

The Supreme Court's ruling invalidated the federal Gun Free School Zones Act, prohibiting the possession of guns in and around school grounds, as beyond the reach of Congress's authority to regulate interstate commerce. Lopez was the first case in almost six decades in which the Court struck down a federal law on those grounds. Chief Justice Rehnquist began the majority Lopez opinion by emphasizing that protection of our fundamental liberties demands a limited federal government with clearly enumerated powers. The Supreme Court's commitment to limited government has been, Rehnquist argued, a hallmark of its Commerce Clause jurisprudence. Rehnquist continued by rejecting the Government's arguments that the costs of violent crime in our nation's schools are paid nationally, not locally, and that violence in school undermines the educational system in such a way as to create less productive citizens and a crippled economy. According to Rehnquist, an extension of the Commerce Clause power to cover activities with such an attenuated connection to interstate commerce would allow for no rational limits to Congressional regulatory authority. As emphasized by Rehnquist, if Congress is left free to regulate gun possession near schools - something which is "in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce" - it could conceivably control almost any area of the law for which the States have traditionally taken responsibility, including education or even family law. To find the possession of guns near schools a commercial activity subject to Congressional regulation would, according to the majority, require the piling of "inference upon inference" and would open the door to a "general police power."

Justices O'Connor and Kennedy placed even greater emphasis on the Court's obligation to protect our federal system. Kennedy argued that federalism - the revolutionary idea that two governments can protect liberty better than one - was in many ways the Framers' most unique insight. Justice Kennedy also emphasized that the federal system could only work when two types of political accountability were required: between citizens and the federal government and between citizens and state government. Justice Kennedy continued that for both governments to be held appropriately accountable, it was critical that citizens could easily identify each government's sphere of responsibility, with a clarity of roles existing for each; however, such clarity is lost when the federal government substantially invades areas of the law traditionally left to the States. It was Kennedy's opinion that federal invasion was evident in Lopez, as the States had long governed the educational system and been held responsible for its effectiveness. For Justice Kennedy, the possession of a gun near school is not only beyond commerce "in the ordinary and usual sense of that term," it is, perhaps more importantly, an activity that has been and should be regulated by the States.

It has been suggested that the Supreme Court has historically pursued an agenda based on federalism with an awareness of the realities of political acceptability. On the basis of this recognition, it is understood that the Court cannot afford to enforce federalism against the political interests of the dominant group. Thus, in accordance with this recognition, reportedly the Court has operated in such a way as to only enforce federalism when resistance was least expected and unlikely to instigate efforts by Congress to develop law in such a way as to bypass impediments that might emerge from the Constitution. However, during the 1999 term of the Court, evidence would suggest that the Court acted with a judicial resolve to enforce and assert federalism regardless of powerful nationalist interests.

Justice Thomas recently explained that the Court's current federalism jurisprudence represents a reaffirmation of the federalist belief that local or state government is more responsive because it is closer to the people. On the basis of the opinion of Justice Thomas, the existence of numerous states, each making certain decisions concerning the allocation of resources and the balance between public power and private rights creates a beneficial marketplace of policies deserving judiciary support and protection.

As emphasized by Justice Thomas, the jurisprudence of federalism is reflected in court rulings because:

The Supreme Court answers cases. We don't respond on broad principles. All of these mechanisms protect liberties and a private ordering of life. Some see all these constitutional checks and balances as bothersome or cumbersome or inconvenient impediments to majority rule. Every age has its important policies that some people believe must be enacted at any cost to the constitutional structure. Far from being a vise, though, these checks and balances - the double security, as Madison called them, double security for our liberties - are the genius of our system of government. And, I might add, the genius of James Madison. For what is an impediment to the majority will is equally an impediment to governmental tyranny. For our liberties, designed by our James Madison and the other founders, should be in working order so that, in the words of Abraham Lincoln, 'government of the people, by the people and for the people shall not perish from the face of this Earth."


Since the terrorist attacks of September 11, 2001 extensive commentary has emerged about the future of federalism, with numerous predictions made about the potential for administrative centralization. However, recent research findings from a survey of the members of the American Political Science Association's Section on Federalism and Intergovernmental Relations suggest that these federalism scholars believe the September 11 terrorism will have little effect on intergovernmental relations or on the U.S. Supreme Court's state-friendly jurisprudence, and the surgeā€¦