Paradoxical
theories of "divided sovereignty" and "delegated sovereignty" have
arisen, to create that "confusion of ideas" and engender those
"mischievous and unfounded conclusions," of which Judge Story speaks.
Confounding the sovereign authority of the _people_ with the delegated
powers conferred by them upon their _governments_, we hear of a
Government of the United States "sovereign within its sphere," and of
State governments "sovereign in _their_ sphere"; of the surrender by the
States of _part_ of their sovereignty to the United States, and the
like. Now, if there be any one great principle pervading the Federal
Constitution, the State Constitutions, the writings of the fathers, the
whole American system, as clearly as the sunlight pervades the solar
system, it is that _no_ government is sovereign--that all governments
derive their powers from the people, and exercise them in subjection to
the will of the people--not a will expressed in any irregular, lawless,
tumultuary manner, but the will of the organized political community,
expressed through authorized and legitimate channels. The founders of
the American republics never conferred, nor intended to confer,
sovereignty upon either their State or Federal Governments.
If, then, the people of the States, in forming a Federal Union,
surrendered--or, to use Burlamaqui's term, transferred--or if they meant
to surrender or transfer--_part_ of their sovereignty, to whom was the
transfer made? Not to "the people of the United States in the
aggregate"; for there was no such people in existence, and they did not
create or constitute such a people by merger of themselves.
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