Separate   Sovereignties

The understanding of "sovereignty" as primary authority originating from a distinct body politic, drives the American concept of delegation of separate powers to two domestic governments, (the federal and State,) - each acting fundamentally in separate spheres. This "dual sovereignty" is what drives the "federal" system. No where in law is this more apparent than in the series of Supreme Court cases concerning "double jeopardy." (U.S. Const., Amdt. 5: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.")

As stated by Justice Grier in Moore v. Illinois 14 HOW 20, (1852):

"Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both."

The federal and State governments are, essentially, "foreign" to each other in many respects, just as the State governments are "foreign" to eachother - each with its own sovereignty, bound by ties of comity set forth in the Constitution and reinforced by judicial decision.

In Dobbins V. Erie Co. Com'rs., 16 Pet. 435, Justice Nelson for the Court stated:

"The general government and the states, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the states, within the limits of their powers not granted, or, in the language of the tenth amendment, 'reserved,' are as independent of the general government as that government, within its sphere, is independent of the states." 11 Wall. 124.

As stated by Justice O'Connor in Heath v. Alabama, 474 U.S. 82 (1985):

"It is axiomatic that '[i]n America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.' McCulloch v. Maryland, 4 Wheat. 316, 410 (1819). It is as well established that the States, 'as political communities, [are] distinct and sovereign, and consequently foreign to each other.' Bank of United States v. Daniel, 12 Pet. 32, 54 (1838). See also Skiriotes v. Florida, 313 U.S., at 77; Coyle v. Oklahoma, 221 U.S., at 567. The Constitution leaves in the possession of each State 'certain exclusive and very important portions of sovereign power.' The Federalist No. 9, p. 55 (J. Cooke ed. 1961)..."

In the application of the "double jeopardy clause," the "doctrine of dual sovereignty" excepts laws separately prosecuted by the two domestic governments concerning the same action by an individual, on the basis that their powers eminate from separate sources, or bodies politic.

Justice Brennan in Abbate v. United States, 359 U.S. 187 (1959,) cites Chief Justice Taft in the early case of Fox v. Ohio:

"...[T]wo sovereigns had, within their constitutional authority, prohibited the same acts, and each was punishing a breach of its prohibition. A unanimous Court, in an opinion by Chief Justice Taft, held:

As explained by Justice O'Connor in Heath:

"The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the 'peace and dignity' of two sovereigns by breaking the laws of each, he has committed two distinct 'offences.' United States v. Lanza, 260 U.S. 377, 382 (1922). As the Court explained in Moore v. Illinois, 14 How. 13, 19 (1852), '[a]n offence, in its legal signification, means the transgression of a law.' Consequently, when the same act transgresses the laws of two sovereigns, 'it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable." Id., at 20.'

"In applying the dual sovereignty doctrine, then, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power.... Thus, the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute is derived from its own 'inherent sovereignty,' not from the Federal Government....

"As stated in Lanza, supra, at 382: 'Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other."

"...The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their powers to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment. See Lanza, supra, at 382. The States are equal to each other 'in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself.' Coyle v. Oklahoma, 221 U.S. 559, 567 (1911). See Skiriotes v. Florida, 313 U.S. 69, 77 (1941). Thus, '[e]ach has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each `is exercising its own sovereignty, not that of the other.' Wheeler, supra, at 320 (quoting Lanza, supra, at 382)"

Following this line of reasoning through various cases, it has also been determined that the "double jeopardy" prohibition does apply between a military tribunal and a federal territorial court; or a chartered municipality and a State. In such cases, the power eminates from the same body politic and is an action under the same sovereignty.

As stated by Justice O'Connor in Heath:

"In those instances where the Court has found the dual sovereignty doctrine inapplicable, it has done so because the two prosecuting entities did not derive their powers to prosecute from independent sources of authority. Thus, the Court has held that successive prosecutions by federal and territorial courts are barred because such courts are 'creations emanating from the same sovereignty.' Puerto Rico, 302 U.S., at 264. See id., at 264-266. See also Grafton, supra (the Philippine Islands). Similarly, municipalities that derive their power to try a defendant from the same organic law that empowers the State to prosecute are not separate sovereigns with respect to the State. See, e. g., Waller, supra. These cases confirm that it is the presence of independent sovereign authority to prosecute, not the relation between States and the Federal Government in our federalist system, that constitutes the basis for the dual sovereignty doctrine."

As summarized by Justice Stewart in U.S. v. Wheeler, 435 US 313 (1978):

"Bartkus and Abbate rest on the basic structure of our federal system, in which States and the National Government are separate political communities. State and Federal Governments '[derive] power from different sources,' each from the organic law that established it. United States v. Lanza, 260 U.S. 377, 382. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each 'is exercising its own sovereignty, not that of the other.' Ibid. And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State's own sovereignty which is the origin of its power.

"By contrast, cities are not sovereign entities. 'Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.' Reynolds v. Sims, 377 U.S. 533, 575. 15 A city is nothing more than 'an agency of the State.' Williams v. Eggleston, 170 U.S. 304, 310. Any power it has to define and punish crimes exists only because such power has been granted by the State; the power 'derive[s] . . . from the source of [its] creation.' Mount Pleasant v. Beckwith, 100 U.S. 514, 524. As we said in Waller v. Florida, supra, at 393, 'he judicial power to try petitioner . . . in municipal court springs from the same organic law that created the state court of general jurisdiction.'

"Similarly, a territorial government is entirely the creation of Congress, 'and its judicial tribunals exert all their powers by authority of the United States.' Grafton v. United States, supra, at 354; see Cincinnati Soap Co. v. United States, 301 U.S. 308, 317; United States v. Kagama, 118 U.S. 375, 380; American Ins. Co. v. Canter, 1 Pet. 511, 542. 16 When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as 'an agency of the federal government.' Domenech v. National City Bank, 294 U.S. 199, 204-205.

"Thus, in a federal Territory and the Nation, as in a city and a State, '[t]here is but one system of government, or of laws operating within [its] limits.' Benner v. Porter, 9 How. 235, 242. City and State, or Territory and Nation, are not two separate sovereigns to whom the citizen owes separate allegiance in any meaningful sense, but one alone. And the 'dual sovereignty' concept of Bartkus and Abbate does not permit a single sovereign to impose multiple punishment for a single offense merely by the expedient of establishing multiple political subdivisions with the power to punish crimes."

The authority of Counties are also considered as eminating from the same sovereignty as the State. As cited by Justice Burger in Waller v. Florida, 397 US 387 (1970):

"Political subdivisions of States-counties, cities, or whatever-never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.' Reynolds v. Sims, 377 U.S. 533, 575, 1388 (1964)."