152
Souter, J., dissenting
were free to parcel them out to different governments and different branches of the same government as they saw fit. See F. McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 278 (1985). As James Wilson emphasized, the location of ultimate sovereignty in the People meant that "[t]hey can distribute one portion of power to the more contracted circle called State governments; they can also furnish another proportion to the government of the United States." 1 Pennsylvania and the Federal Constitution, 1787-1788, supra, at 302.46
Under such a scheme, Alexander Hamilton explained, "[i]t does not follow . . . that each of the portions of powers delegated to [the national or state government] is not sovereign with regard to its proper objects." Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank, in 8 Papers of Alexander Hamilton 98 (Syrett ed. 1965) (emphasis in original).47 A necessary consequence of this view was that "the Government of the United States has sovereign power as to its declared purposes & trusts." Ibid. Justice Iredell was to make the same observation in his Chisholm dissent, commenting that "[t]he United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved." 2 Dall., at 435. And to the same point was Chief Justice Mar-46 See also U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring) (the Constitution "created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it").
47 See Amar, 96 Yale L. J., at 1434-1435 ("The ultimate American answer [to the British notion that the sovereign was by definition above the law], in part, lay in a radical redefinition of governmental 'sovereignty.' Just as a corporation could be delegated limited sovereign privileges by the King-in-Parliament, so governments could be delegated limited powers to govern. Within the limitations of their charters, governments could be sovereign, but that sovereignty could be bounded by the terms of the delegation itself" (footnote omitted)).
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