Abstract
The Supreme Court decisions in United States v. Lopez and U.S. Term Limits v. Thornton reveal sharp divisions among the Justices about the constitutional federalism of Chief Justice John Marshall. A four-Justice liberal bloc, which voted in both cases in favor of the national side of the federal balance, considers Marshall essentially nationalist. A four-Justice conservative bloc, which voted in both cases to limit the federal sphere, reads Marshall as a virtual dual federalist. Justice Anthony Kennedy provided the deciding votes, siding with the conservatives in Lopez and with the liberals in U.S. Term Limits. His concurring opinions interpret Marshall as recognizing the supremacy of the federal government while acknowledging judicially enforceable limits on the exercise of federal power. Kennedy's explanation for his apparently inconsistent votes in fact reflects most closely Marshall's theory of the role of the judiciary in upholding the balance of powers between the federal and state governments.
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