10. For administrative purposes, or, stating the case in other words, for legal reasons and in harmony with precedents in law, the terms “sovereignty” and “residuary sovereignty” continue in use among lawyers, judges, political writers, and civil officials; but government is not, never was, and in such a country as ours, never can be sovereignty. American constitutional law is law made by authority of the sovereign people: the law of the United States is made by Congress, the authorized legislative agent of the people of the United States: the law of the State, is made by its Legislature, the authorized law-making agent of the people of the State. The same essential may be stated after the manner of Chief Justice Marshall as the law of the whole: the Nation; the law of the part, the State. Government is the child of sovereignty.
11. Because of the sovereignty of the people of the United States, and consequently, of the supremacy of the Constitution, several results follow:
Madison expresses one of these in The Federalist[22]:
The idea of a national government involves in it not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government.
Marshall expresses other results,—
The general government, though limited as to its objects, is supreme with respect to these objects. This principle is a part of the Constitution. To this supreme government ample powers are confided. With the ample powers confided to this supreme government are connected many express and important limitations on the sovereignty of the States.[23]
Hamilton, commenting on the Constitution, declares that “the national and State systems are to be regarded as one whole.”[24] And finally, although our supreme law does not contain the word “sovereign,” or “sovereignty,” it implies sovereignty. The crowning illustration of this principle of implied sovereignty grew out of the acquisition of Louisiana in 1803. President Jefferson could find no provision of the Constitution specifically empowering the United States to make the acquisition, or to incorporate the region into the United States. He therefore proposed amending the Constitution so as to authorize the purchase. The President’s doubts of the power of the United States to acquire Louisiana were weaker than his doubt of power to incorporate the province into the United States,—that is, to make a foreign province or provinces inhabited, by an alien people, partakers in an American Commonwealth. He consulted his Cabinet. Levi Lincoln, the Attorney-General, was of opinion that to share the privileges and immunities of the people of the United States with a foreign population required the consent of the people of the United States, and he suggested that if a treaty of cession were made, containing such agreements, it should be put in the form of a change of boundaries instead of a cession, so as to bring the territory within the United States. Albert Gallatin, Secretary of Treasury, replied that to him it appeared: (1) That the United States as a nation have an inherent right to acquire territory; (2) That whenever that acquisition is by treaty, the same constituted authorities in which the treaty-making power is vested have a constitutional right to sanction the acquisition; and (3) That whenever the territory has become acquired, Congress have the power either of admitting it into the Union as a new State, or of annexing it to a State, with the consent of that State, or of making regulations for the government of such territory.[25] Thus, according to Gallatin, the United States, by its very nature, has the undoubted right to acquire, to hold, and to govern territory as a possession.[26] Twenty-five years after the purchase of Louisiana, Chief Justice Marshall handed down the decision of the Supreme Court, that “the Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or treaty.”[27] In this decision, Marshall reasons as did Gallatin that a nation is by its very nature, sovereign, and possesses the powers and functions of sovereignty. When the American nation, a sovereign, created a government of delegated powers, under the Constitution, it delegated to that government powers adequate to its purposes as a nation.[28] The essential purpose of sovereignty is to continue sovereign. The word “sovereign” though not occurring in the Constitution is necessarily implied as a permanent quality or mark of the power that ordained and established the Constitution. Sovereignty cannot be delegated, but a supreme law, such as the Constitution, necessarily implies a sovereignty that has delegated the powers expressed or implied in the Constitution itself. In other words, the Constitution of the United States is the supreme law of the land because the people of the United States are a sovereign. Sovereignty alone has original powers; all others are delegated. Thus the Constitution itself declares that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[29]
12. American constitutional law is, therefore, the authoritative formulation, in constitutional, or statutory, or treaty form, of the will of the sovereign, the people of the United States. This formulation accords with the powers delegated by that sovereign. The expression of this delegation of powers in the conduct of the public business is government. Therefore in America, government is another word for the delegation of powers,—for limitations of authority. Sovereignty is unlimited; government is limited. The Constitution of the United States is the supreme law of the land because through it the people of the United States,—not the people of any particular State or group of States,—have delegated larger powers than have the people of any particular State through its constitution. The whole is greater than the part. “That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.”[30] The exercise of this original right is an exercise of sovereignty. The result of this exercise, in America, is the Constitution of the United States which, this sovereignty declares to be “the supreme law of the land.”[31]