Following the Revolutionary War, "sovereignty" was vested in the people-at-large or "body politic" of the original States. Through conventions, certain governmental functions were delegated to various agents and institutions through State constitutions. Several years later, through the vehicle of the Constitution of the United States, certain limited governmental functions were removed from the States and re-allocated directly to a federal government - delegated as specifically enumerated powers. The large bulk of governmental functions pertaining to the internal "territorial sovereignty" of each State - the protection of the health, safety, morals and property of State citizens from harm or injury (police powers); the promotion of the general welfare and prosperity; the maintenance public trust interests in "common" rights - were to remain with State institutions essentially as they had been when each State was a completely separate and independent sovereignty bound in league through the Articles of Confederation.

It was originally conceived that the State and the federal governments were delegated almost entirely separate functions. It was anticipated by the Founders that issues of "concurrent jurisdiction" would be relatively infrequent. The dynamics of this dual system of domestic government have been delineated through various court cases and termed "dual sovereignty." Basically, they are as follows:

The provisions of various federal laws may not be applied in such a manner so as to:

Any of these prohibitions on federal action would constitute an unlawful usurpation of the independent "territorial sovereignty," jurisdiction and authority of the States. Essentially, the State and federal governments are "foreign" to eachother. Each receives its authority from a seperate delegation by the sovereign "body politic." There is no hierarchy of institutions.

Both the federal and the State law act directly upon individuals. Federal law does not act upon the States, and is specifically precluded from doing so under the doctrine of dual sovereignty. Where there is a real conflict between legitimate federal and State law, federal law pre-empts the State law. Maintenance of the system serves as a protection of individual rights. The State may not voluntarily agree to an enlargement of federal jurisdiction into its jurisdictional sphere when such is not authorized by a legitimate enumerated federal power. However, under what has been termed "cooperative federalism," it may be allowed to enact a State law to minimum federal standards in lieu of legitimate federal regulation that would otherwise preempt State law or it may accept a federal grant conditional upon compliance with provisions designed to advance a federal interest or program. .