19
sphere, autonomous and fully supreme within that sphere—but on the model for which
Madison had no name. That model—the new, federal system of government—is distinctive
in that the locus of sovereignty no longer is the national government, as in a national or uni-
tary scheme, nor the state governments, as in the eighteenth-century "federal" or what we
now call confederal scheme, nor in both, as in a dual or joint scheme. Rather, what we now
call a federal system is distinctive in that the locus of sovereignty is outside both spheres of
government and instead in We the People, who vest their sovereignty in the Constitution.
53
Contrary to Diamond, in other words, I suggest that the theory of sovereignty, ac-
cording to which the sovereign is the ex definitio the highest and thus unlimited and undi-
vided authority in the society,
54
provides a distinctive alternative to what the founders called
national and federal systems of government. Justice Kennedy may believe that "The Fram-
ers split the atom of sovereignty,"
55
but if the states can block the national government or
the national government can block the state governments, then such a system of dual sover-
eignty is in fact a system of no sovereignty, for there is no supreme power. That is, if there
is, in Justice O'Connor's words supra, " a system of dual sovereignty between the States and
53
"The Articles had crumbled because they had been erected on the uneven and shifting
foundation of the sovereignty of the People in each state. The imperial model had failed be-
cause it asserted the omnipotent sovereignty of the central assembly, Parliament. Yet to state
the matter this way was to glimpse a third and more promising alternative: Sovereignty must
be vested in the People of the United States as a whole. Such a system could shore up the
inherent instability of the Articles of Confederation. It could also avoid the monumental
centralism of the imperial model by relocating sovereignty from the national assembly to the
People of the nation. The People could limit the delegated authority of the national govern-
ment and stipulate that certain powers be reserved for the government of each state." Amar,
op. cit., at 1450.
54
Thus, according to Black's, sovereignty in government "is the supreme power by which
any citizen is governed and is the person or body of persons in the state to whom there is
politically no superior." Black's Law Dictionary, 6th ed. (St. Paul: West Publishing Co.,
1990), p. 1396.
55
U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) at 838 (concurring opinion). De-
spite Justice Kennedy's reference to the familiar notion of splitting the atom, it is worth
noting that the concept of an atom refers, strictly speaking, to that which cannot be split. As
The American Heritage Dictionary of the English Language (Boston: Houghton Mifflin
Company, 1979) defines "atom," the term derives from the Greek atomos, indivisible.
Convention