Double Jeopardy’s Dual Sovereignty: A Tragic (and Implausible) Lack of Humility

Abstract

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a conception of constitutional community contrary to our Framers’ own; and when one reaches for a grab bag of history, jurisprudence, and commentary, that starting point makes a difference. Second, the Court ignored both the logic of America’s founding and recent double jeopardy jurisprudence, both of which strongly counsel against the exception in the federal-state context. We hope that a future Court will be more receptive to the nation’s constitutional structure and to the genuine but limited needs of criminal justice.