On the Dual Sovereignty Double Jeopardy Doctrine and Eminent Domain

Abstract

The first sentence of the 14th Amendment demonstrates a shift in American federalism away from a collection of sovereign states and toward a unified citizenry. Over the next 70 years, the Privileges and Immunities the states enjoyed were adapted to this new brand of federalism by becoming secondary, if not subservient, to federal sovereignty. The changes were far reaching, going well beyond the civil rights changes that we usually focus on. One remnant of strong state sovereignty seems to have survived the ascendance of the federal government: dual sovereignty as a way around double jeopardy. This theory depends on using the natural law of sovereignty to put a state’s police power on separate and equal footing with federal police power. This separation and equality is unique in post-reconstruction America. Other natural powers of sovereignty that the states possess have been subjugated by their federal counterparts. Why is it that we accept so readily for the purposes of criminal prosecution what we so vehemently reject for the purposes of civil and property rights? This article proposes that the Supreme Court should apply its modern state sovereignty jurisprudence — as evidenced by its treatment of state takings decisions — to successive prosecutions by state and federal governments. Part I describes jurisprudence on eminent domain and dual sovereignty double jeopardy, as well as the dual sovereignty double jeopardy doctrine’s development. Part II examines the elements and behavior of sovereignty and the development of American federalism. Part III analyzes the Court’s treatment of state takings claims and contrasts them with the Court’s rationales for the dual sovereignty double jeopardy doctrine. Part IV concludes that modernizing the Court’s approach to successive state and federal prosecutions would be beneficial to both governments and to the People.