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Dual Sovereign Doctrine Under Attack in the Supreme Court

Strong originalist arguments exist for overruling the dual sovereign doctrine in a case being argued before the Supreme Court today.

Today the Supreme Court will hear arguments in Gamble v. United States, a case raising the issue of whether the "dual sovereignty" doctrine should be overruled. The case involves Terance Gamble's federal conviction for being a felon in possession of a firearm. Back in 2015, police stopped Gamble for having a broken tail light and found him possessing a firearm. Because he had previously been convicted of robbery, Gamble was thus a felon in possession of a firearm -- a crime under both federal and state law.

Gamble pleaded guilty to the state version of the charge in Alabama state court, serving a one-year sentence. The matter seemed to be finished. But the Alabama U.S. Attorney's Office filed the federal version of the charges against Gamble -- same crime, same conduct. Gamble argued that the Fifth Amendment's prohibition of double jeopardy barred this second prosecution. Lower courts, however, have ruled against Gamble, concluding that the "dual sovereign" doctrine allows separate sovereigns -- in this case Alabama and the United States -- to pursue separate prosecutions for the same crime.

This summer, Gamble succeeded in having the Supreme Court agree to review his challenge to the dual sovereign doctrine. Today the Court will hear oral arguments in the case. UCLA law professor Stuart Banner and I have filed an amicus brief uring the Court to rule for Gamble. Here is the introduction:

At the Founding and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns. Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified.

But that fact only raises three further questions. First why did the Court erroneously conclude in Bartkus v. Illinois, 359 U.S. 121, 131 (1959), that the English and early American sources are "totally inconclusive" as to whether dual sovereignty existed at the Founding? Second, how, when, and why did the dual sovereignty doctrine come to exist? Third, given this history, why did the Court hold in United States v. Lanza, 260 U.S. 377 (1922), that a state prosecution does not bar a subsequent federal prosecution for the same conduct? This brief will answer these questions.

First, in Bartkus the Court simply misunderstood the English and early American sources.

Second, dual sovereignty grew out of the intense controversy over slavery in the period immediately before the Civil War. The Court invented dual sovereignty largely to prevent free states from blocking the recapture of fugitive slaves.

Third, by the time of Lanza, the dual sovereignty doctrine had been restated so often that the original meaning of the Double Jeopardy Clause had been forgotten. In Lanza, in any event, the Court was less concerned with original meaning than with rampant disregard for Prohibition. One purpose of dual sovereignty was to prevent "wet" localities from nullifying the Volstead Act.In short, dual sovereignty is an accident of history. It was not part of the constitutional design.

Our brief not only makes an explicit point about the dual sovereign doctrine, but a broader implicit point about originalist interpretation of the Constitution. Sometimes it is argued that an originalist approach necessarily favors government power at the expense of individual rights, particularly in criminal cases. Our petition shows the contrary can be true. As we conclude: "If judges can weaken constitutional protections for policy reasons that seem pressing at the time, one wonders what the Constitution is for."

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  • Brett Bellmore||

    The whole issue is largely a result of the abandonment of enumerated powers doctrine. The 10th amendment, which reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." simply does not leave room for dual sovereignty. Every power the federal government is delegated is automatically denied to the states, so there isn't any potential for these dual prosecutions.

    Abandoning enumerated powers doctrine, and allowing the federal government to exercise a general police power it was deliberately denied in the constitutional scheme, is the source of this difficulty.

  • Slocum||

    Perhaps, but the court is certainly not going to be able fix that problem with this case. They might, however, restore the protection against double-jeopardy in spite of the federal government's expanded police powers.

  • chemjeff radical individualist||

    Abandoning enumerated powers doctrine, and allowing the federal government to exercise a general police power it was deliberately denied in the constitutional scheme, is the source of this difficulty.

    Now do the federal power to control immigration.

  • Brett Bellmore||

    Actually mentioned in the Constitution. Article 1, Section 9, first clause: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

    It's past 1808, in case you didn't notice.

  • chemjeff radical individualist||

    That clause is about regulating the slave trade, not about regulating immigration of free people. Try again.

  • MatthewSlyfield||

    Actually it can be reasonable read to cover both immigration of free people and the slave trade.

    Importation is almost certainly a reference to the slave trade.

    However, I think it's a huge stretch to suggest that migration is not about the immigration of free people.

  • James Pollock||

    "However, I think it's a huge stretch to suggest that migration is not about the immigration of free people."

    No? Who were the migratory peoples of the Founding age? Hint: They weren't white, and they weren't free to move into white neighborhoods, even if they were there first.

  • MatthewSlyfield||

    "No? Who were the migratory peoples of the Founding age? Hint: They weren't white, and they weren't free to move into white neighborhoods, even if they were there first."

    Native Americans. And exceedingly few in any of them were ever slaves, so it still doesn't make migration about the slave trade.

  • James Pollock||

    It doesn't make "migration" about free peoples, either.

    What, specifically, was the claim I responded to?

  • chemjeff radical individualist||

    Furthermore, even if you were to argue that this clause applies to regulating the immigration of free people, it says that immigration cannot be prohibited by Congress prior to 1808. It does not grant an affirmative power on what Congress may do regarding immigration after the year 1808. Congress' enumerated powers are in Article 1 Section 8, and if we are going to return to an enumerated powers doctrine, then Congress is only limited to doing what it is explicitly granted power to do in Article 1, Section 8.

  • Rossami||

    The "importation" part of that clause clearly applies to the slave trade. The "migration" part, not so much.

    You might also look to Article 1, Section 8 "To establish an uniform Rule of Naturalization". Neither of those clauses make much sense without a Congressional power to regulate immigration at some level after 1808.

    Much as I would prefer it to be otherwise, "enumerated" does not always mean "explicitly spelled out with perfect clarity".

  • NToJ||

    Why can't "migration" just refer to slaves migrating to other states? Anyway, there's no serious doubt that the entire phrase "importation and migration" referred to slaves. John Jay said it. James Madison said it. I've not seen evidence that anything other than slaves were the intended reference of the entire clause, or that "Migration" was intended to do anything other than help the drafters avoid using the express phrase "slave".

  • Brett Bellmore||

    "or that "Migration" was intended to do anything other than help the drafters avoid using the express phrase "slave"."

    Using general language to avoid an embarrassing specific has the problem that you've enacted the general language, not the embarrassing specific. Perhaps Madison only wanted the clause to apply to slaves, but he didn't WRITE a clause that only applied to slaves.

  • NToJ||

    "Using general language to avoid an embarrassing specific has the problem that you've enacted the general language..."

    If you want to be strict on the language, immigration and migration refers to "such persons" and there is no doubt that "such persons" were slaves. You only get to non-slaves by torturing it out of migration, but "Migration" can (and in fact did) refer to slaves too, since it is limited to "such persons".

    This was a reading first proffered by the southern states long after the bargain was made, since they felt threatened that in 1808 the federal government would ban the internal migration of slaves interstate. Madison's statements (contemporaneously) about the meaning of the clause are consistent with its text.

    The 1808 compromise had to do with slavery. Everyone accepts this. It's bizarre to think that as part of the compromise, the southern states and the northern states were compromising over internal migration of free whites.

    Luther Martin spoke about this, and he was one of the 11 who came out of the committee that wrote the clause itself.

  • PubliusVA||

    The phrase is "such Persons as any of the States now existing shall think proper to admit." Slaves are the persons that this phrase was specifically intended to cover, but the phrase is not limited to slaves. On its face it would presumably cover indentured servants, for example, which were much less common than in the colonial period but still existed.

  • MatthewSlyfield||

    "Why can't "migration" just refer to slaves migrating to other states?"

    Because migration implies a voluntary action and slaves cant move from one state to another voluntarily.

  • NToJ||

    "Because migration implies a voluntary action and slaves cant move from one state to another voluntarily."

    Slaves can move from one state to another voluntarily. Which is why the southern states wanted Congress to stay out. If a slave migrates (by escaping) from a slave state to a free state, the southerners did not want Congress to pass laws allowing the latter state to free him. It was very much part of the compromise that Congress would stay out of the international (immigration) slave trade, as well as the domestic (migration) slave trade.

  • NToJ||

    (immigration) should be (importation)

  • MatthewSlyfield||

    "Slaves can move from one state to another voluntarily."

    Bullshit. Slaves are moved here and there by their owners, with no more input into the movements than the owner's furniture would get. A slave has neither the choice to go without their owner's permission nor the choice to stay in contravention of their owner's orders to go.

  • James Pollock||

    "Bullshit. Slaves are moved here and there by their owners"

    Right. And then some of them say "you know what, I don't think I approve of this treatment, so I'm going to go somewhere else", and then some of them actually do so.

    Voluntarily.

  • NToJ||

    "Bullshit. Slaves are moved here and there by their owners..."

    Article IV, Section 2, Clause 3 is the fugitive slave clause. It's the "escaping into another" that I was discussing. The first Fugitive Slave Act was enacted in 1793. Frederick Douglass, by way of example, famously migrated to freedom.

  • James Pollock||

    "Because migration implies a voluntary action and slaves cant move from one state to another voluntarily."

    So, if parents decide to move from state to state, and they take along their minor children who didn't want to move, have those children "migrated"? Or just the parents?

    There's another implication of "migrate"... the present intention to stay, combined with a past and/or future intention to be somewhere else. So migratory birds go north and south with the change in weather, as do migratory big game from higher elevation to lower. Migratory salmon go from fresh water, to sea, to fresh again. Under that understanding of "migration", people who move from one place to another aren't "migrating"... they're just moving. The aren't migrating until they turn around and go back.

  • MatthewSlyfield||

    "Under that understanding of "migration", people who move from one place to another aren't "migrating"... they're just moving. The aren't migrating until they turn around and go back."

    Even if the courts were to buy that, migration still does not apply to the involuntary movement of slaves by their owners.

  • Bob from Ohio||

    "The "importation" part of that clause clearly applies to the slave trade. The "migration" part, not so much."

    Importation covered slaves if you think of them as mere property, migration if you consider them as [unfree] people.

  • James Pollock||

    People aren't imported. Goods are imported.

    The correct answer was in Article I, Section 8.
    "To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

  • chemjeff radical individualist||

    Naturalization is separate from immigration.

  • James Pollock||

    They're not unrelated.

  • Voize of Reazon||

    That is a fair observation, but not the approach that Prof. Cassell takes. His appeal is to the original scope of double jeopardy and the supporting English cases, and they were not limited to issues of US federalism. In the 1685 case Hutchinson's acquittal on a charge of murder in a Portuguese court barred his subsequent English trial. You'll get quite different results with your fix than with his.

  • Martinned||

    I'm sure you can come up with plenty of examples on a narrow reading of the enumerated powers doctrine too.

    Let's see:
    - State X makes the selling of cocaine a crime.
    - Feds make the selling of cocaine across state lines and/or the selling of cocaine through the mail a crime.
    - Person Y sells cocaine from New York to someone in State X through the mail.
    - Person Y gets convicted of selling cocaine in State X.
    - Can the Feds prosecute him or not?

  • James Pollock||

    There's two different things mixed up in your hypothetical.

    One is that two crimes are not the same crime if each one has an element the other lacks. So, although you can murder a person by burning them to death, murder and arson are different crimes because each one requires something the other doesn't. Arson doesn't require a person be harmed, and murder doesn't require fire.
    The other is the dueling sovereign powers, where two different sovereign powers claim the authority to act in response to the same acts, and it's OK because each one is acting on its own authority regardless of what the other one does. So, for example, if a pirate operating in international waters is grabbed up by an American destroyer, the Americans can claim the authority to punish said pirate for piracy. But if the ship the pirate pirated was British, the Brits might ALSO punish the fellow for piracy. Then, the poor guy goes home, and his own country punishes him for piracy.
    The Constitution says that the United States federal government can't try him twice for the same act. It doesn't say we can't try him if the British already had a go at it. If it did, instead of extraditing criminals back to the U.S., other countries would just have a quick trial, sentence them to time served or 0 days, and then ask if we still wanted them.

  • Martinned||

    Well, those things were deliberately mixed up. (In the sense that I intended for people to notice that issue.) How central does the "element the other lacks" have to be for two crimes to be the same crime? Arson and murder are an easy example, but the mail component I used isn't quite as obvious. Almost all federal crimes have a (notional) interstate commerce element. If that's enough to make them different crimes, the case discussed in the OP is fairly meaningless.

    As for extradition, it may surprise you to learn that extradition treaties generally forbid the exact thing you describe. If the British already convicted someone of a crime, they don't have to extradite that person anymore if the US want to prosecute them for the same crime. So yes, if the requested state quickly sentences the person to 0 days, that means there will be no extradition.

  • James Pollock||

    "Almost all federal crimes have a (notional) interstate commerce element"

    Almost all?

    "As for extradition, it may surprise you to learn that extradition treaties generally forbid the exact thing you describe."

    I think you're confusing "doesn't have to" with "can't", and also "extradition" with "the power to try". The government of Panama (Manuel Noriega) didn't want to extradite Manuel Noriega to the United States. That didn't mean that the United States lacked the power to try him, or punish him for his crimes against the United States.

  • OldCurmudgeon||

    " murder and arson are different crimes because each one requires something the other doesn't."

    To be honest, I'm a uncomfortable with allowing serial prosecutions for crimes that were 'knowably chargeable' up front (to make up a phrase), even if they are separate crimes. That is first trying you for murder, then upon acquittal, trying you for arson, then upon acquittal, trying you for civil rights violation, etc. It looks like jury shopping, not justice. Or at least process-as-punnishment.

    You're not arguing it, but... the fig leaf that they are different sovereigns turns the Constitutional structure on it's head, imho. Textually, the rights attaches to the individual accused, not to the sovereign doing the act.
    "No person shall be subject....to more than one punishment or trial for the same offense."

  • James Pollock||

    "Textually, the rights attaches to the individual accused, not to the sovereign doing the act."

    The way rights work is, you have exactly those rights that other people are prepared to give you. So the rights you get from the Constitution rely on the sovereign power giving you those rights. (This reality is not popular with libertarians in general, who prefer to imagine that rights emerge from nowhere and magically vest themselves in people, like rain falling from the sky. It is, however, true.)
    It isn't the Constitution that restrains the government from invading your rights. Rather, it is the people within the government refusing to take action that violates your rights, that protects your rights.

    They could have written a constitution that dissolved the states and left them powerless. But then the Constitution would have been stillborn, we'd have been still trying to get along under the Articles of Confederation, and the United States would almost certainly no longer be united at this time.
    So, separate sovereigns it is.

  • OldCurmudgeon||

    " you have exactly those rights that other people are prepared to give you. "

    Yes, yes, legal realism. But it's kinda absurd to call them rights.

    "it is the people within the government refusing to take action that violates your rights"

    That's not quite right... It's more 'people within the government refusing to allow *other* people in the government to violate your rights.' In some ways, my complaint is that SCOTUS is failing to do exactly this.

  • James Pollock||

    "That's not quite right... It's more 'people within the government refusing to allow *other* people in the government to violate your rights"

    I don't think so. When the cop is deciding whether or not to shoot you, and he thinks he should and the other cop thinks he shouldn't, you're probably going to get shot, or at least, shot AT.

  • NToJ||

    "Every power the federal government is delegated is automatically denied to the states, so there isn't any potential for these dual prosecutions."

    That's not what the Constitution says. A provision stating that the states reserve power is not the same things as a provision limiting their power. Where "powers not delegated to the states" is p and "reserved to the States" is q, the clause is p->q. But p->q does not imply where -p->-q.

    This interpretation is bolstered by the qualifier "not prohibited by it to the States". Your interpretation would render that provision superfluous, because it makes the "delegated to the United States by the Constitution" to be the equivalent of "prohibited by it to the States".

  • Brett Bellmore||

    No, it wouldn't. The "not prohibited by it to the states" makes clear that the states don't get EVERY power not delegated to the federal government. Some powers nobody got.

    It doesn't change the fact that, by the terms of the 10th amendment, if a power was delegated to the federal government, the states didn't get it. If it wasn't delegated to the federal government, the states might, or might not get it, depending on whether it was also prohibited to the states.

  • James Pollock||

    "It doesn't change the fact that, by the terms of the 10th amendment, if a power was delegated to the federal government, the states didn't get it"

    That's just not in there.
    The tenth amendment formalizes what was implicit in the original... if the Constitution doesn't grant a power to the U.S. federal government, the U.S. federal government doesn't have that power.

    You look kind of silly arguing that the states have no taxing power, because Congress is granted the power to lay and collect taxes in Article I.

    Go back up to the supremacy clause. If the federal government has the authority to do something, AND chooses to do so, the power of the states to do something is overridden. But if the feds have the power to do something, and choose not, the states retain THEIR power to act. So, circling back, both the states and feds have taxing power, UNLESS the feds choose to state explicitly that they INTEND to prohibit states from exercising taxing authority.

  • arch1||

    Brett, why do you think 10A says that states don't get powers delegated to the federal government? The 10A doesn't say or imply anything at all about powers delegated to the federal government.

  • Brett Bellmore||

    "The 10A doesn't say or imply anything at all about powers delegated to the federal government."

    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    Does your 10th amendment read differently?

    If a power is not delegated to the federal government by the Constitution, AND is not prohibited by it to the States, the states or the people get it, depending on the details of that state's own constitution.

    I mean, geeze, do I have to draw you a Venn diagram? The 10th amendment isn't all that complicated.

  • James Pollock||

    "'The 10A doesn't say or imply anything at all about powers delegated to the federal government."
    '"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."'
    Does your 10th amendment read differently?"

    Can you not see the word "not"? It's right in front of the text you bolded, almost like it applies directly to them. Or do you just not understand what the word "not" means?

  • NToJ||

    Please, draw the Venn diagram. You might be able to understand the argument better.

  • arch1||

    Yes a Venn diagram is worth a shot. The diagram (colored for reference purposes only; don't read any meaning into the colors) would have

    -A large red circle representing all powers
    -A blue circle within the red circle representing powers NOT delegated to the U.S. by the Constitution
    -A yellow circle within the blue circle representing powers NOT delegated to the U. S. by the Constitution AND NOT prohibited by it to the States
    -The following text inside the yellow circle: "reserved to the States respectively, or to the people."
    -NO TEXT in the blue or red regions (since 10A says or implies nothing about such powers)

    In particular, "powers delegated to the federal government" are represented by the red region. These are the powers which are in only the outermost circle. The lack of text in that region illustrates the fact that 10A says nothing about them.

  • James Pollock||

    "If a power is not delegated to the federal government by the Constitution, AND is not prohibited by it to the States, the states or the people get it, depending on the details of that state's own constitution."

    But you claimed that a power that is authorized to the federal government is automatically denied to the states.

    And then subsequently declined to defend examples that went contrary to your stated position. The federal government is expressly granted the power to lay and collect taxes. Your claim that powers authorized to the feds are automatically denied to the states means that the states may not lay or collect taxes. Turns out, they can't even create courts inferior to the United States Supreme Court, so double jeopardy isn't an issue, I guess.

  • NToJ||

    "The "not prohibited by it to the states" makes clear that the states don't get EVERY power not delegated to the federal government. Some powers nobody got."

    This is a strange reading. If you're going to read a negative implication, it would be that every power not prohibited by the Constitution (against the states) is delegated to the states, too.

    "It doesn't change the fact that, by the terms of the 10th amendment, if a power was delegated to the federal government, the states didn't get it."

    You're just ignoring the argument. The 10A doesn't say "If Feds get X, states do not get X". It says "If Feds do not get X, the states get X." You're reading it backwards. Even with the "not prohibited", there is a third class of powers that neither the feds get, nor the states get. You're just making a ordinary logic error.

  • JeffDG||

    This formulation actually sets up a split sovereignty concept.

    In essence, for every power, someone has the right to do it. If it is granted to Congress by the Constitution, then only the feds can do it, not the states. If it is prohibited to the states, then the feds can do it. Otherwise, only the states can do it, not the feds.

    This is somewhat modified by powers that are denied to both the feds and the states (ie. ex post facto laws), which means that they are left wholly out of the powers of any government.

  • arch1||

    NToJ,
    Your main point is correct but your last paragraph is not: The qualifier "not prohibited by it to the States" isn't superfluous. Without that qualifier, if there were a power which the Constitution didn't delegate to the U.S., *and* specifically prohibited to the States, the Constitution would contradict itself (since the power would be reserved to the States by 10A, but prohibited to the States elsewhere in the Constitution).

  • James Pollock||

    "since the power would be reserved to the States by 10A, but prohibited to the States elsewhere in the Constitution"

    And would therefore fall to the People, as intended. Not a problem.

    There exists a similar example... the text of the original Constitutions allows Congress the power to makes laws regarding patents and copyrights. Copyrights are an infringement of the press, and of free speech. The first amendment prohibits making laws that are infringements of free speech or of the press. So the Constitution both authorizes and disallows copyrights.

  • arch1||

    Thanks James, I stand corrected: Given the "...or to the People" out, the qualifier "not delegated by it to the States" looks superfluous. (Note however that it's superfluous whether or not Brett's claim is true, so NToJ's final paragraph is still mistaken).

  • James Pollock||

    It makes explicit an assumption that the original document had, but didn't express. So, in a way, the entire 10th is superfluous.

  • Brett Bellmore||

    It served not to alter the meaning of the original document, but merely as a guide to interpretation.

    One that's been ignored, of course...

  • NToJ||

    Because Brett is ignoring it? You're interpreting a clause that broadens state power as limiting state power.

  • James Pollock||

    The words mean what Brett wants them to mean, nothing more and nothing less.

  • NToJ||

    We are talking past each other. Brett's argument is that the phrase ""The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people." He's implying that powers delegated to the feds are therefore not powers the states don't have. But if that's true, the phrase "nor prohibited by it to the States" is superfluous, because powers delegated to the feds already causes them to be "prohibited by [the Constitution] to the States".

    Under your (and my) reading, the "nor prohibited by it to the States" is creating a separate limitation on states powers that would already (under Brett's reading) exist without the "nor prohibited" clause. If the Constitution delegates the power to the United States, the states may still be able to exercise that power, too, but with the added limitation that those powers not delegated to the feds (and therefore reserved to the states) are still limited by the rest of the Constitution.

  • arch1||

    "But if that's true, the phrase 'nor prohibited by it to the States' is superfluous, because powers delegated to the feds already causes them to be 'prohibited by [the Constitution] to the States'"

    Your rationale following "because" would be relevant if the phrase "...nor prohibited by it to the States" in 10A were talking about powers delegated to the feds. But that's not the case; rather, it talks about powers NOT delegated to the feds.

  • James Pollock||

    "Every power the federal government is delegated is automatically denied to the states"

    That's not the case, though. If it were, the Constitution wouldn't need a "powers prohibited to the states" section, to lay out the things which the states cannot do.

  • arch1||

    James, your main point is correct but your rationaleisn't. Even if powers delegated to the feds were automatically denied to the states, a "powers prohibited to the states" section could still be necessary to lay out the things *not* delegated to the feds which the states cannot do.

  • James Pollock||

    The implied rule in the original Constitution is that governments have only the powers granted to them by the people. In other words, they rejected the rule of monarchy, who held power over the citizens by reason of being the monarch, or, in the immortal words of Mel Brooks, "it's good to be the king".

    You don't need to list powers that are denied to government... you simply don't grant them the authority, and so they don't have it. This is true even if you create an elaborate, multi-tiered, multi-sovereign, separated powers government.

    You only need to provide for things expressly denied to government if you have dispensed with the implicit "government can't do it unless it's been expressly authorized to do it", or you mean to expressly assign some tasks to one part of your government structure, and only to that part. Madison didn't put a Bill of Rights into his original document because, as designed, it didn't need one.

  • NToJ||

    "Even if powers delegated to the feds were automatically denied to the states, a "powers prohibited to the states" section could still be necessary to lay out the things *not* delegated to the feds which the states cannot do."

    This actually makes a lot of sense to me. I agree with arch1.

    I still think the remainder of my argument against Brett's interpretation is correct, though.

  • James Pollock||

    "Abandoning enumerated powers doctrine, and allowing the federal government to exercise a general police power it was deliberately denied in the constitutional scheme, is the source of this difficulty."

    You'd have a point, if the Constitution denied any police power to the federal government. But it does not. The federal government is expressly granted several police powers, and the "Necessary and Proper" clause implicitly covers several others.

  • Bored Lawyer||

    I do not understand your comment. The Tenth Amendment merely reserves powers not delegated to the United States to the individual states. But the reverse is not true. There may be powers delegated to the United States that still leave room for state exercise of power. Why could not the same activity be subject to both federal and state regulation, including criminal regulation?

    Take a simply example. Someone uses the U.S. mail to commit fraud and ripoff victims throughout the country. He would be subject to prosecution for federal mail fraud. The mail fraud statute seems a perfectly reasonable exercise of a delegated power. (Congress is expressly granted the power to establish Post Offices, and under the Necessary and Proper Clause, abuse of the mail system to commit fraud seems like it would fall within Congress' power to legislate.)

    At the same time, the person has also committed fraud under the criminal codes of the states where his victims are, and it would not be surprising if he were also prosecuted by the authoriteis in those states for criminal fraud.

    And then you have a dual sovereignty issue.

    So what is wrong with this situation? Is the Mail Fraud statute unconstitutional? Does it displace state power to prosecute frauds that affect those states? Neither seem correct to me.

  • NToJ||

    California's income tax is illegal!

  • James Pollock||

    According to Brett, ALL state taxes are illegal.

  • Harvey Mosley||

    I think I like Brett's interpretation!

  • James Pollock||

    You won't when the CHP realizes that brigandage is the only way for California to raise revenue.

  • OldCurmudgeon||

    I think the answer is that the state and feds need to coordinate a single prosecution.

  • James Pollock||

    The point of dividing up the sovereign power was to keep them separated. Forcing them to work together is a mistake... When they don't work together, you get criminals going unpunished, and when they do work together, you get one, overly-powerful prosecutorial agency.

  • OldCurmudgeon||

    I'm not I understand your point...broader scope of double jeopardy protection is a limit on governmental power.

    It's akin to the civil pleading rules that require you to bring all causes of action in the same suit vs. letting a wealthy party jury shop.

  • James Pollock||

    "broader scope of double jeopardy protection is a limit on governmental power."

    Unless it isn't. The local cops have "coordination" with the feds, but they don't really work together the vast majority of the time. Consolidating trials to include both the state and federal prosecution power means that they work together much more often, and thus more effectively.

    That's likely to be a net decrease in freedom, because the local police now have federal resources to draw freely upon.

    Trading that for the vague assurance that dual sovereign power won't be applied (and assuming that the judiciary won't find some other "out" that lets extra tries at prosecution go ahead.

  • James Pollock||

    I'll freely concede that dual sovereign authority creates a potential for abuse. I don't, however, currently see that potential appearing substantially, and that pushes it down my priority list.
    I'd rather see "officer safety" devalued a bit as a defense for "I thought he was reaching for a gun and feared for my life and that's why I shot him six times, even though he was unarmed at the time."
    Does that make life harder for cops? A little bit. But the actual danger of being a cop is lower than many other jobs, and I have higher standards for policemen than I do for most jobs.

  • Dilan Esper||

    That's not true at all, even if one assumes arguendo the correctness of conservative arguments about the scope of federal power.

    The reason is because many federal powers are not exclusive. A good example is the enforcement power of the 14th Amendment, which allows the federal government to pass laws enforcing the Constitution's guarantee of equal protection. Does anyone doubt that states may also pass such laws? For instance, the federal government has criminalized certain conduct by state actors which denies individuals their civil rights, a clear exercise of the enforcement power of the 14th Amendment. But nobody believes if California passes a statute criminalizing the same conduct, it is unconstitutional.

    So there you have it, the dual sovereignty problem. Now I happen to agree with Prof. Cassell that the dual sovereignty exception to double jeopardy is terrible. But there's no doubt that the Constitution creates the problem because some powers are concurrent.

  • David Nieporent||

    Every power the federal government is delegated is automatically denied to the states,

    That is not remotely what the quoted language says.

    Ever notice how it's only non-lawyers who always think every legal question is simple?

  • swood1000||

    The 10th amendment, which reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." simply does not leave room for dual sovereignty.

    But there could still be considerable overlap. For example, suppose the federal government prosecutes a defendant for treason, consisting of an act that is also a crime under state law, such as murder. The jury comes back saying that murder was not proved beyond a reasonable doubt, and therefore there was no treason. Could the defendant still be charged with murder under state law?

  • apedad||

    Why does the argument against dual sovereignty always go against the federal govt?

    I bet some of you will answer--it's a timing issue (i.e. who [state or feds] prosecutes first gets to keep the case and precludes the other).

    But that doesn't address the core issue dual sovereignty.

    Additionally, Prof Cassel's position is based on two English cases from 1678 and 1775--which seems extremely tenuous because English govt structure in those times has no bearing on our constitutional federal structure.

    I think Prof Cassel is on the wrong side on this one.

  • Sarcastr0||

    When I was taking crim pro, it introduced a bunch of stuff seemed like horrible policy and bad law to me - sovereign immunity, qualified immunity, Miranda, Terry, the usual liberal claptrap.

    But dual sovereigns never really bothered me, because of how it was used rarely, as an exceptional pressure valve to maintain public perceptions of legitimacy of the process. And even then the stats are not good for convictions on that second bite at the apple (or they weren't in 2005). My course was taught by two defense attorneys, and they seemed to like it fine (though they were also cool with qualified immunity so...)

    This case certainly seems an abuse of the process, but I'd hate to see it kill a doctrine that seems at least supportable constitutionally, and has provided valuable social benefits in the past.

  • Brett Bellmore||

    "And even then the stats are not good for convictions on that second bite at the apple"

    Which doesn't comfort the defendant all that much, the process being the punishment.

    I'd love to see the doctrine killed, because I don't see where it has any constitutional support at all, outside a few limited cases produced by enabling legislation clauses in amendments.

  • BaronGouldianFinch||

    The raw theoretical concept of qualified immunity makes sense (on paper). The problem is that practical application has broadened it to be ridiculously broad and essentially be full immunity in all but name.

    How it's supposed to work would be something like this - you are a warden for the State of Franklin. You execute an inmate by gas chamber as per state law. The next day the Supreme Court declares the gas chamber "cruel and inhuman" punishment. You are personally sued by the inmate's family for the 'wrongful execution' even though you absolutely followed the law at the time. Qualified immunity is supposed to cover that sort of case.

    How it actually works, of course, is unless there's a specific example where the court found beating a cuffed suspect with a belt held in the right hand on a Tuesday is improper, you're okay...

  • Krayt||

    ===But dual sovereigns never really bothered me, because of how it was used rarely, as an exceptional pressure valve to maintain public perceptions of legitimacy of the process.===

    But that's kind of what it's for -- to stop do-overs by politically-motivated people. It needs to be fought in distasteful grounds before it encroaches into politicians seeking to harm one another.

  • James Pollock||

    "But that's kind of what it's for -- to stop do-overs by politically-motivated people."

    Or, conversely, to catch people who cheated, or for whom other people cheated. Consider the segregated South. The Sheriff arrests Joe Racist, because some nosy reporters heard him in the bar bragging about his participation in a bunch of lynchings and put it in the paper. The prosecutor, sympathetic with good ol' Joe R, halfheartedly puts on a case, but... surprise! the all-white jury finds him not guilty.
    Or, the Sheriff doesn't even arrest Joe R., because Joe R. is a deputy and committed the crimes while wearing his uniform.
    So, the feds show up, with federal charges, and poor Joe R. gets to face a real trial, with a real chance of being convicted, just because of the fact that he did the crimes. How unfair for Joe R.!

  • TwelveInchPianist||

    So a defendant can be held to answer a second time if somebody says that the first jury was racist?

  • James Pollock||

    "So a defendant can be held to answer a second time if somebody says that the first jury was racist?"

    Or lazy, or just wrong.

  • doshei||

    I would imagine that in all double jeopardy cases the folks behind the second bite at the apple feel the first bite was wrong. But not always I guess. In this case the defendant was found guilty and is in fact being tried the second time for a crime of which he has been convicted and punished. Either way isn't that what double jeopardy is all about? How can it be wrong for the feds to try you twice but it's perfectly fine for the feds and some cronies at the state level to carve you up in series?

  • James Pollock||

    "I would imagine that in all double jeopardy cases the folks behind the second bite at the apple feel the first bite was wrong."

    I think "all" is overbroad, so I'm choosing to read it as "most" or "almost all".

    " In this case the defendant was found guilty and is in fact being tried the second time for a crime of which he has been convicted and punished."

    Is he guilty of violating both state and federal law? If yes (yet to be established at trial), why shouldn't both the state and federal governments get to punish him?

    Here's another variation: You, as a small child, did something wrong at school, and you got sent to the principal's office, where you got a good talking-to and had to miss recess. Now you go home and... mom and dad aren't allowed to punish you, because you already missed recess? Or, mom and dad get to decide what punishment is appropriate independently of the school?

  • JFree||

    That 'second time' SHOULD probably involve some formal mechanism by which the feds actually do take over the functioning of the state's legal system - maybe on the grounds of its jury pool selection criteria or something else structural.

    But afaik that hasn't been done since Reconstruction - and there is less than zero authority (outside maybe the 'guarantee a republican form of government' clause for the feds to do that.

  • NToJ||

    The better answer is that the 14A expressly gave Congress the power to create prosecuting legislation for the issue being addressed, and double jeopardy was never intended to apply to a subsequent federal prosecution (after a state prosecution).

  • arch1||

    James, isn't your "doesn't even arrest Joe R." scenario a non sequitur? If the feds were to show up in that scenario, it wouldn't be a do-over because the first "do" never happened.

  • James Pollock||

    "James, isn't your "doesn't even arrest Joe R." scenario a non sequitur?"

    No, it's a parallel prong.

    Consider:

    A) state prosecutes, gets acquittal, feds prosecute
    B) state prosecutes, gets conviction, feds prosecute
    C) feds prosecute, get acquittal, state prosecutes
    D) feds prosecute, get convictions, state prosecutes

    All of these are valid exercises of dual sovereignty, if dual sovereignty itself is valid.

    All "the sheriff doesn't even arrest, so the feds step in" does is potentially move to C or D, with the potential for the state to prosecute held in abeyance but still permitted later.

    Prong A gets all the attention. Prong B exists largely as a hypothetical, with most real cases involving a sham prosecution or trivial sentence.

    So... if you decide that dual sovereignty is invalid with regard to multiple prosecutions, you then have to decide "in cases where there IS a violation of law at both levels, which one gets to prosecute? That's a can of worms, that can't really be explored in 1500 characters.

  • arch1||

    Sorry, I misinterpreted your earlier comment as implying that in each of your two scenarios, dual sovereignty would be required in order for the feds to show up with federal charges.

  • James Pollock||

    No, the possibility of criminal liability for both state and federal exists from the moment the crime happens. The criminal needs to consider the risk of punishment by both in deciding whether or not to commit the crime. (Yes, I know how much thought goes into the decision to commit most criminal acts)

    I *might* have sympathy for a criminal who did the crime, did the time, and now is faced with UNEXPECTED second sovereign liability.

    Repeated prosecution is oppressive, and a court that proceeds to a verdict and gets an acquittal doesn't get to go back. But a different court, which always had the authority to punish the person if they were guilty, doesn't have to accept the first court's findings authoritative. (So, for example, the first court might be a state criminal court and the second a federal deportation hearing.)

  • MatthewSlyfield||

    "Or, the Sheriff doesn't even arrest Joe R., because Joe R. is a deputy and committed the crimes while wearing his uniform."

    Then there is no prosecution by the state, and therefore no double jeopardy with or without the dual sovereign doctrine.

    In the case of a rigged trial, the feds could step in and fight a double jeopardy claim by arguing since the state trial was rigged or the state jury biased, that jeopardy did not attach in the state trial.

  • James Pollock||

    "Then there is no prosecution by the state, and therefore no double jeopardy with or without the dual sovereign doctrine."

    I believe you mean there is no prosecution by the state YET, and therefore no double jeopardy YET.
    If a state is embarrassed to proceed with a case, perhaps the federal prosecution (successful or not) makes failure to try the defendant even MORE embarrassing.

    "In the case of a rigged trial, the feds could step in and fight a double jeopardy claim by arguing since the state trial was rigged or the state jury biased, that jeopardy did not attach in the state trial."

    That's a bit of a loser of an argument if the sentence was merely inadequate instead of entirely missing.
    To introduce yet a third hypothetical, imagine a case where a federal revenue agent is poking around in the woods looking for moonshine stills. He finds one, but also the operator, who shoots him dead on the spot. So the local Sheriff charges him with hunting out of season, and the judge sentences him to a $50 fine. Case closed, right? Trying to argue that jeopardy didn't attach to a person who was convicted, and having the federal judge OK THAT isn't better than dual sovereignty, is it?

  • MatthewSlyfield||

    "I believe you mean there is no prosecution by the state YET"

    No I don't. Your hypothetical as you originally stated it makes no mention of even the possibility of later state prosecution. You are moving the goalposts.

  • James Pollock||

    "No I don't. Your hypothetical as you originally stated it makes no mention of even the possibility of later state prosecution."

    It makes no mention of later state prosecution, correct. Thus leaving open the possibility of state prosecution later, or no state prosecution later.

    You chose to assume one and not the other, when that isn't supported by the text.

    Then you blamed me for it, and called it "moving the goalposts".

  • MatthewSlyfield||

    "To introduce yet a third hypothetical, imagine a case where a federal revenue agent is poking around in the woods looking for moonshine stills. He finds one, but also the operator, who shoots him dead on the spot. So the local Sheriff charges him with hunting out of season, and the judge sentences him to a $50 fine."

    No, again, the feds can prosecute and there is no double jeopardy even without the dual sovereignty doctrine.

    Hunting out of season and murdering a federal agent are two completely different crimes with no elements in common, if the defense attorney tried to argue double jeopardy on that basis in federal court the federal judge would laugh the defense attorney out of court.

    If the state prosecuted for the illegal still, again separate acts, separate crimes, the feds could still prosecute the murder of the federal agent even under the strictest view of double jeopardy.

    Even without the dual sovereignty doctrine, only way the state could block federal prosecution for the murder of the federal revenue agent given the hypothetical acts would be for the state to prosecute the operator of the still for murdering the federal agent.

    But then the state would be very hard pressed to justify a minimal sentence for murder.

    "OK THAT isn't better than dual sovereignty, is it?"

    It's not worse either, because it's an absurdity that doesn't create a double jeopardy even without the dual sovereignty doctrine.

  • James Pollock||

    "Hunting out of season and murdering a federal agent are two completely different crimes with no elements in common"

    Dead mammal. Not hunting season for that mammal. Totally nothing in common.

    " because it's an absurdity"

    Hello.

  • MatthewSlyfield||

    "Dead mammal. Not hunting season for that mammal. Totally nothing in common."

    Dead person vs dead animal. Yes, as a matter of law, completely nothing in common.

    Note: A charge of hunting out of season necessarily requires that there is a legitimate authorized hunting season for what was hunted out of season.

  • James Pollock||

    Apparently I was premature when I said.

    "' because it's an absurdity'
    Hello."

    So I will amend as follows:

    " because it's an absurdity"

    Hello?

  • James Pollock||

    "(though they were also cool with qualified immunity so...)"

    Don't look at Qualified Immunity as a criminal justice issue. Look at it as a judicial economy issue. If you give everybody sent to prison (that is, they'll have a lot of time on their hands, suddenly freed up from the things they were otherwise going to do) the ability to sue anybody and everybody involved in their arrest, prosecution, and conviction, they're probably going to collectively file a LOT of lawsuits. They won't win any of them, but they'll file. So... one, two, three, ten, twenty or so civil suits to go along with every criminal trial... nearly all of them a waste of time. The courts already struggle to keep up with the number of cases that have merit.

  • Lastseer||

    >Don't look at Qualified Immunity as a criminal justice issue. Look at it as a judicial economy issue.

    i.e. It's too expensive to properly prevent recourse against misconduct, so fuck it.

  • Lastseer||

    Sorry, I can't figure out how to edit the portion I genuinely meant to censor and hit submit too soon.

  • James Pollock||

    The point being, the guilty parties are different if you look at it correctly. Did you pick up on that?

    (although I think it's more about waste than expense)

  • James Pollock||

    Also, you're free to petition your legislators to overrule the courts on just who is immune from lawsuits

  • Dilan Esper||

    "But dual sovereigns never really bothered me, because of how it was used rarely, as an exceptional pressure valve to maintain public perceptions of legitimacy of the process. And even then the stats are not good for convictions on that second bite at the apple (or they weren't in 2005). My course was taught by two defense attorneys, and they seemed to like it fine (though they were also cool with qualified immunity so...)"

    It bothers me a lot. Double jeopardy is a really important rule. And this seems like a completely hypertechnical exception to it.

    It would be like we decided the exclusionary rule was really harsh and let some criminals go free, so we decided to just not apply it to crimes that occurred between 6:00 and 8:00 in the morning.

    If double jeopardy isn't a good rule, get rid of it, Replace it with triple jeopardy, where you can try a guy twice but not three times. Or get rid of the jury trial right.

    But if this rule is worth having at all, it needs to be absolute. The jury says "not guilty", that's it, the government loses, no matter how pissed the public is.

  • James Pollock||

    The main goal of holding trials is to obtain accurate results? All the rules we have, the first, most important thing, is that the outcome of the trial is accurate. We want guilty people convicted and innocent people acquitted. Still with me?

    OK, now, we have some secondary things. For example, if we AREN'T going to have 100% accuracy, and we concede that that's a goal but not reliably possible, we've tilted the scales of justice so that incorrect acquittals are more likely than incorrect convictions.

    We have a bunch of other things mixed in there... speedy trial, for example, sometimes affects accuracy. So does excluding evidence.

    We can say that for purposes of criminal law, we don't have separate sovereigns, but the fact is, in actuality, we do. We did this on purpose, to spread the power of government more thinly to reduce the likelihood of tyranny. So... if (jurisdiction) is offended by the behavior of (defendant) they get to put him on trial. They don't have to accept the results of a trial that they weren't allowed to participate in. So... should we put three tables in every criminal courtroom, with one for the defendant, one for the state prosecutor, and one for the federal prosecutor?

  • Dilan Esper||

    If your concern is accurate results and you believe nobody else needs to accept the results of a prior jury, the double jeopardy rule is bad. Because it means that while inaccurate convictions can be corrected, inaccurate acquittals never can.

    The separate sovereign rule doesn't really work as an effective check against the excesses of double jeopardy, either, because whether there is a separate sovereign that can charge the same crime is completely accidental. OJ Simpson did something much worse than what the Rodney King cops did, but there was no separate sovereign available for OJ and there was for Lawrence Powell and Stacey Koon.

    Finally, the separate sovereign doctrine is actually based on a lie. It isn't true that there are separate sovereigns. I know this won't be popular here, but the states are not little countries. They are political subdivisions which pretend to be little countries, The states have no armies, no nuclear weapons, no significant foreign policies, no ambassadors, etc.

    There's no reason why we should pretend the states are foreign countries with respect to this one thing just so we can strip some criminal defendants of what should be an absolute right to their acquittals. It's just a massive, blatant human rights violation.

  • James Pollock||

    "If your concern is accurate results and you believe nobody else needs to accept the results of a prior jury"

    I don't believe that anyone else needs to accept the results of the prior jury? Did I say there even was one? Suppose that, tomorrow, North Korea holds a trial and finds that Barack Obama killed 37 million Koreans in 2010, do I have to say "yep, that's what happened"?

    If the United States holds a trial, then the United States needs to honor the verdict of the jury, unless new information has become available since that trial. But the United States may choose whether or not to honor a trial conducted somewhere else, by someone else, using someone else's rules.

    "The states have no armies, no nuclear weapons"
    Not sure where you got your information, but I was in the Air National Guard, and trained on nuclear weapons.

    "There's no reason why we should pretend the states are foreign countries with respect to this one thing"
    The sovereign power of government in this country is divided, because the people who created it had experience with consolidated sovereign power, and didn't like it.

  • Dilan Esper||

    The sovereign power of government in this country is not actually divided. The federal government can effectively override almost all state decisions.

    Even if we pretended it was, however, the reason wasn't because of any experience with consolidated sovereign power. It was because many of the founders of this country owned slaves whom they raped, and enjoyed that particular arrangement and made its preservation a condition of the ratification of a Constitution. That's where state's rights came from-- the absolute dealbreaker of slavery. No slavery, no Constitution. So they preserved enough state "sovereignty" (not real sovereignty, but closer to a series of restrictions of federal sovereign power) to ensure that slavery would remain in place.

    But finally, and most importantly, technical issues about sovereignty should never be used to violate people's fundamental rights. If it is a fundamental right to not be twice be held in jeopardy for the same offense, you can't use some technical definition of whether the states are "sovereigns" as opposed to "political subdivisions" as an excuse to oppress human beings and deprive them of their rights. Human rights are simply more important than the definition of "sovereignty".

  • James Pollock||

    "But finally, and most importantly, technical issues about sovereignty should never be used to violate people's fundamental rights"

    OK, I'll go along with this, although I rather strongly suspect we have some disagreement about just what rights people have, and how they get them.

    ."If it is a fundamental right to not be twice be held in jeopardy for the same offense [...]"

    What was the first word of this sentence?

    A flawed premise will lead you to a flawed conclusion.

  • Brett Bellmore||

    It always goes against the federal government, because in dual sovereignty cases there's seldom any good argument for the federal government having jurisdiction in the first place; States don't generally assert sovereignty in areas where the federal government actually has a valid claim to be the relevant sovereign.

  • James Pollock||

    "in dual sovereignty cases there's seldom any good argument for the federal government having jurisdiction in the first place"

    Killing a federal agent shouldn't be a federal crime?

  • ||

    Alabama convicted Judge Vance's killer of murder after the federal prosecution. But I concede that it's rare.

  • NToJ||

    "But that doesn't address the core issue dual sovereignty."

    If the answer to the question you gave doesn't address the core issue of dual sovereignty, why did you ask the question? What point are you trying to make about dual sovereignty with your loaded question?

    "...English govt structure in those times has no bearing on our constitutional federal structure."

    You're just parroting a(n erroneous) footnote from Bartkus. The issue is whether the double jeopardy clause, as originally ratified, was informed by the common law prohibition (from England) against prosecutions by multiple sovereigns.

  • Martinned||

    Who knew that prof. Cassell also had opinions that favour the accused in a criminal trial?

  • MonitorsMost||

    That was my thought as well. I would have thought he'd submit an amicus brief arguing victim have a constitutional right right to choose to burn the perpetrators at the stake before something like this.

    Next thing you know, Stewart Baker will support the warrant requirement.

  • CrispyBacon||

    That's what I call unbridled optimism.

  • MonitorsMost||

    That's what led to young Billy Munfree's fall.

  • CrispyBacon||

    I concur but think you're barking up the wrong tree, for a two simple reasons: the 5th Amendment didn't apply to the states at our founding; and Bartkus has been partially overruled anyway. As you observe, in Bartkus the Court decided based on that concept, but a decade later in Benton v. Maryland the double jeopardy clause was incorporated. Benton apparently doesn't appear in your brief, which I think is serious oversight. Because Bartkus rejected incorporation, I think it's reasoning has limited applicability now.

    Incorporation distorts original meaning and we need to decide how so. The dual sovereign issue of Bartkus merits response, but it's neither the beginning nor end of the discussion. I have regrettably not read your brief but I'm skeptical that dual sovereignty isn't correct - I just don't think it's correct wrt to the DJ Clause post-incorporation.

    My tentative view is that incorporation of the DJ Clause universalizes its effect. Once a person has that right as against state and federal government alike, dual sovereignty no longer makes sense in that context.

  • JeffDG||

    the 5th Amendment didn't apply to the states at our founding

    This formulation is, IMHO, also in error.

    Of the Bill of Rights, only the 1st Amendment by its terms applies only to the federal government. The remainder of the BoR, if you look only at the language thereof, can, and should have, applied equally to the several states as to the federal government.
  • CrispyBacon||

    This argument is well known to me and is absolutely wrong.

    It requires us to ignore the context of the Amendments, the very well-known history and debate of their adoption. The fact that you can logically read the words a certain way (ignoring history/Original Meaning) doesn't make it correct. It is a brand of Living Constitutionalism that is no less dangerous than the liberal version.

  • James Pollock||

    The way to "incorporate" the original Bill of Rights against the states would have been to include new text under "powers prohibited to the States". (Yes, I know, the 14th didn't do that, either. The 14th was a major reshuffling of powers, and, ideally, should have involved a complete re-write of the Constitution.) Because they didn't choose to go that route (probably because the Confederate states would have had a legitimate case for secession, and an opportunity to insert a mechanism for it) the Supreme Court severely limited the scope of the 14th and it spent a century re-emerging.

  • CrispyBacon||

    I agree the 14th Amendment is, for lack of a better word, challenging. I don't know if I think the more faithful approach is represented by Benton or Bartkus in terms of incorporation/non-incorporation. But our bed has been made and as a matter of legal analysis the DJ Clause does now apply to the states and federal government alike. As you say, the 14th was a major reshuffling of powers.

  • James Pollock||

    "the DJ Clause does now apply to the states and federal government alike."

    So the state can't take two swipes at the same defendant for the same act, and the federal government can't take two swipes at the same defendant for the same act. They get one each, and, in certain cases, the defendant can face trial and punishment by another country, as well, without offending dual jeopardy.

    There's a limited number of potential plaintiffs for criminal trial. Let's switch to an example of civil law, instead.
    Suppose I threaten a crowd with a firearm, making the whole crowd reasonably afraid that I will unjustifiably injure them.
    One of them goes down to the courthouse, files papers, and sues me for an assault tort. I lose, and have to pay damages to the plaintiff, because I'm guilty.
    Does this mean that the next person in line at the courthouse, who also wanted to file papers suing me for assault (tort) is out of luck, because I've already been sued for assault? If your answer is yes, what If I secretly arrange for a friend of mine to be waiting at the courthouse, and to file a suit demanding $1 in damages, before any of my actual victims can file papers?

  • ||

    No, because other victims weren't parties to the initial action (although the defendant can be collaterally estopped from denying liability if he was already found liable in some cases). In the criminal context, the argument is that the states and federal government become parties to each other's prosecution by virtue of the compact between the states and federal government.

  • James Pollock||

    So if you stuff this alleged "compact" back up into the orifice you just pulled it out of, there's nothing?

  • CrispyBacon||

    By function of the 14th Amendment the right one possesses is that spelled out in the 5th Amendment. The question becomes whether it is the "same offense" and not whether it is the same government. If the Court had held that states could not twice prosecute based on due process grounds independent from the 5th Amendment, the logic of continued bifurcation would be stronger. But that method of interpretation of the 14th Amendment is not what we have.

    Consider evidence obtained in violation of the 4th Amendment, by either the state or federal government. The Court in Mapp v. Ohio held that such evidence is not admissible in either court system. The application of the "right of the people to be secure against unreasonable searches and seizures" applies regardless of federal or state action and the protection of the 5th Amendment should function similarly.

    I'm not sure about the relevance of the civil suit example. While you generally could be sued by others for harm arising from the same action, the 5th Amendment doesn't apply.

  • James Pollock||

    "Consider evidence obtained in violation of the 4th Amendment"

    The exclusionary rule is not itself Constitutional; the text does not require it. Rather, it is a disincentive to the government to keep it it compliance.

    "I'm not sure about the relevance of the civil suit example."

    It's illustrative, because criminal law has only a very limited number of possible plaintiffs, whereas civil law has a much larger pool of possible plaintiffs. It was not described as authoritative precedent.

    A suitably-minded (or unsuitably-minded as your point of view might be) judiciary could read double-jeopardy almost completely out of the fifth amendment... very few crimes have capital consequences ("life" and none at all involve sacrificial limbs, and by the text, the double jeopardy rule only applies in cases at which life or limb is at risk.

  • CrispyBacon||

    Certainly so w/r/t the exclusionary rule, but it is nonetheless an application of the 4th Amendment. The key there is not the exclusionary rule per se but the fact that the remedy is applied to states and the feds regardless of who did the unconstitutional search. We might imagine a bifurcated system for the exclusionary rule. It would be somewhat less deterrent, but as you've observed regarding comparable numbers of prosecutions, not necessarily to a great degree. And as there are exceptions to the exclusionary rule, it isn't intended to be an absolute bar anyway.

    Courts could/do misread all manner of constitutional text and maybe they've bungled horribly in Benton and in Mapp, among many other cases dealing with application of the Bill of Rights against the states.

    Contrary to my argument, the Court has suggested that the same crime prosecuted by different jurisdictions count as separate "offences" under the 5th Amendment, as in Heath v. Alabama ('85) where both Georgia and Alabama convicted for the same crime. It's an interesting idea that the 5th Amendment concept of "offence" was based on jurisdiction. I'm not sure it's right and I think this is a thornier issue as between equal sovereign states. Then again, relating it to a civil context, we hash out issues of res judicata and conflict of laws without too much angst.

  • James Pollock||

    Between states, the issue is usually jurisdiction rather than authority. Both Oregon and Washington have authority to punish murder, but only one of them will/should have jurisdiction over any specified murder. The same is true for Washington and British Columbia.

    But between Washington and, well, Washington, it's far murkier, and it's a problem inherent in the structure created by the Constitution. You could fix the problem of dueling sovereigns by simply removing sovereignty at the state level, but I'm not sure that creates a better overall result.

    I think it's a problem with a legislative, rather than judicial, solution. If the people, generally, decide there's a problem of the states and the feds double prosecuting, they'll push for legislators (or, in states where it's allowed, pass initiative measures) that limit the ability of the state or federal prosecutors to act. For example, prosecutors in Oregon and Washington now have less authority to prosecute marijuana cases than they did, although federal prosecution retains the same authority it had previously.

  • CrispyBacon||

    Per the Supreme Court, two states can prosecute for the same crime, just as (for now) a state and the federal government can prosecute for the same crime. I'm not sure why you would think otherwise given your argument on double jeopardy.

    Double jeopardy could be left to legislative action, as many issues theoretically could, but when courts are faced with interpreting the Constitution, they can't (or won't) always punt. And of course the marijuana issue wasn't about double prosecuting or removal of authority as such, but rather a view that use/possession should be legal. Nonetheless, federal prosecution does appear constitutional, insofar as it comports with the Commerce Clause, etc.

  • James Pollock||

    "Per the Supreme Court, two states can prosecute for the same crime, just as (for now) a state and the federal government can prosecute for the same crime"

    There aren't a lot of cases that give rise to jurisdiction in two states. Nearly all of the time, jurisdiction properly lies in only one. That's not the case where an act violates the laws of both state and federal jurisdictions.

    "And of course the marijuana issue wasn't about [...] removal of authority as such, but rather a view that use/possession should be legal."

    You don't think "(x) is now legal to possess" involves removing authority to prosecute for possession of (x)?

  • CrispyBacon||

    Sure it has that effect and as a technical conception of law it's not entirely wrong. What I rejected was that decriminalization/legalization was "about" prosecutorial authority "as such." In other words, the authority wasn't the target. It certainly wasn't about distaste for double jeopardy - they want no jeopardy! Removing a law that criminalizes conduct is about protecting the conduct.

    Authorities have less authority to prosecute interracial couples than they used to - to use a deliberately inflammatory example - but it's wrong-headed to say it was about taking away authority. Again, technically, sure, you can say that but is places the emphasis on the wrong legal syllable.

  • James Pollock||

    " What I rejected was that decriminalization/legalization was "about" prosecutorial authority "as such.""

    That's all it's about. If something is decriminalized, the prosecutor's authority evaporates.

    "Authorities have less authority to prosecute interracial couples than they used to - to use a deliberately inflammatory example - but it's wrong-headed to say it was about taking away authority."

    Wrong-headed in the sense of being absolutely correct? The Supreme Court ruled to permanently and completely remove the authority of Virginia prosecutors to charge interracial couples.

    A few decades later (I'm picking a different inflammatory example) they ruled to permanently and completely remove the authority of Texas prosecutors to prosecute gay people for being gay.

    A little after that (different, again) they ruled to permenently remove the authority for county clerks to deny marriage licenses to people who wanted to marry someone with the same reproductive plumbing.

    Meanwhile, last month, the people of NC voted to remove the authority of the legislature to set income taxes at any rate they wanted.

  • CrispyBacon||

    It's a strange point to dwell on if at best it's a technical point. And you've not addressed my response that legalization wasn't about double jeopardy. As I readily conceded: adopting laws that protect freedom has the effect or function of removing authority.

    But we can frame it an entirely different way. Prosecutors have the authority to enforce statutes through judicial proceedings. There are various rules guiding their actions to do so, which also constitute the authority they have. Over any given period of time, criminal statutes are amended, repealed, new laws created. But the authority of the prosecutor remains fairly stable. In other words, a prosecutor's role is defined not by the particular laws he enforces but by the procedures he follows to enforce whatever the laws are. To say prosecutors have more authority now than a year ago...simply because there are more laws on the books is misleading. If marijuana is legal, of course you don't have the authority to prosecute, why should you?

    My primary objection, as should be apparent, is to suggesting the animating purpose of decriminalization is to restrict authority. It's a rather libertarian view, which shouldn't be surprising on this site, but not how most people really think.

  • James Pollock||

    " you've not addressed my response that legalization wasn't about double jeopardy."

    I didn't claim that it was, nor do I care what you think on that topic, so what "addressing" were you hoping for?

    "My primary objection, as should be apparent, is to suggesting the animating purpose of decriminalization is to restrict authority."

    You have a right to be wrong about that, if you so choose. Use it wisely. Or don't. None of my business, really.

  • CrispyBacon||

    The topic at hand is double jeopardy and it was you who suggested pot legalization was related to double jeopardy. So your response here is evasive. As for what I was hoping for was honest good-faith discussion, rather than you trying to score a flimsy technical point unrelated to the matter at hand.

    As for the matter of authority and the intent of legislators and the public, I am correct. I know you just wanted to put a bow on the discussion which at some point must end, but you only showed an inability to engage with arguments. Being right on the internet (or in your case, thinking you're right), isn't worth anything. Enjoy your dividends.

  • TwelveInchPianist||

    I think it's being argued tomorrow, not today.

  • DjDiverDan||

    Right. It was scheduled for today, put pushed back until tomorrow to accommodate the George H.W. Bush funeral.

  • JFree||

    Isn't that yet another example of double jeopardy?

  • James Pollock||

    Mr. Bush was already dead.

  • DjDiverDan||

    "If judges can weaken constitutional protections for policy reasons that seem pressing at the time, one wonders what the Constitution is for."

    An excellent question. If the Court paid more attention to this principle, it might have avoided truly embarrassing opinions like Korematsu.

  • Bob from Ohio||

    Before we changed the Commerce Clause to a general police power, the federal government would not have such laws as "felon in possession".

    Maybe that would solve the duel sovereign issue. Each government minds its own knitting.

  • James Pollock||

    "Maybe that would solve the duel sovereign issue. Each government minds its own knitting."

    You've narrowed, not solved, the problem.
    Hypotheticals (which include no whiff of the commerce clause):
    A member of the United States armed forces, in uniform, goes off-base, into town, and injures someone. Who has jurisdiction? The armed service, because the offender is a member, or the locality where the crime occurred?
    A forest ranger, operating in the scope of his duties, finds a marijuana grow operation. He destroys all of the crop he discovers. Later, the farmer encounters the ranger, and kills him over his lost plants. Does the state have jurisdiction, because the crime happened in their borders, or does the federal government, because the murder victim was a federal agent murdered for carrying out his lawfully assigned task(s)?

  • JeffreyL||

    I'd be curious what the author of the article thinks of the brief submitted by Orin Hatch. I would especially be interested in his thoughts on the title of subheader B.

  • Jimmy the Dane||

    I always thought the dual sovereign doctrine was not well reasoned or supported by the text of the Constitution. It also allows for abuse in criminal justice. For instance, have seen this one on many occasions for felon in possession. Bad search by state authorities under state precedent. No problem says the prosecution just send it up to the Feds at let them take the first hack at it under more lenient circuit court precedent. Also have seen the state prosecutors refer something to the feds just because they don't have the vast resources of the local AG who can more easily strong arm a plea bargain under some ambiguous federal statute. Plus, at least from what previous inmates have told me, most minimum security federal prisons are much nicer then their state counterparts. Heard one guy told the state ADA "send me up to the feds and I will plea out for jail time but I ain't doing state time again".

    The crux of the problem though is the federal government was never supposed to exercise de facto general police powers which it currently does. Doubt anything will take care of that problem though absent a complete rewrite of the Constitution.

  • James Pollock||

    "The crux of the problem though is the federal government was never supposed to exercise de facto general police powers which it currently does."

    The hole in this argument is that the states prosecute more people than does the federal government. If the feds were exercising general police power AND ALSO prosecuting only things which are crimes against the United States but NOT individual states, the United States would be doing way more prosecuting.

    The majority of federal prosecutions, by a substantial quantity, are for drug trafficking.

  • Jimmy the Dane||

    Ahh little Jimmy....you need to take a logics class. Just because something isn't currently happening doesn't mean that it CAN'T happen.

    Sure the feds aren't concerned about your run-of-the-mill drunk and disorderly cases, assaults, and shoplifting which are what clog up the majority of the criminal docket in just about any jurisdiction. But, the thing is if the Feds wanted to I am sure they could come up with some legal theory too or get Congress to pass a "tough on crime" law to give them jurisdiction.

    If you doubt this just read Silverglate's Three Felonies a Day.

  • James Pollock||

    "Ahh little Jimmy....you need to take a logics class. "

    Ahh, littler Jimmy, you have an even bigger need. You need to learn to read.

    "Just because something isn't currently happening doesn't mean that it CAN'T happen."

    Mind pointing to where I said anything contrary?

    "Sure the feds aren't concerned about..."

    Agreed. Which is why I responded to the claim of "which it currently does." by pointing out that it currently does not. And then you decided that your best course of action would be to A) insult me, and then B) confirm that what I said was true, all while pretending to have been correct the whole time.

    By any chance, do you listen to a lot of A.M. radio?

  • CrispyBacon||

    The fact that most prosecutions are pursued by the states, as James observes, means more protective state laws/precedent are a great benefit for the accused above-and-beyond the federal court interpretation of the U.S. Constitution.

  • James Pollock||

    Not committing crimes is ALSO a great benefit, and not just to the accused.

  • CrispyBacon||

    If you're a stickler for the rules.

  • James Pollock||

    Even if you're not.

  • CrispyBacon||

    Wasssss a joke.

  • James Pollock||

    wasn't.

    Jokes are funny.

  • CrispyBacon||

    Not to one who lacks a sense of humor.

  • James Pollock||

    so NEITHER of us thought it was funny?

  • CrispyBacon||

    You're embarrassing yourself.

  • Noscitur a sociis||

    For instance, have seen this one on many occasions for felon in possession. Bad search by state authorities under state precedent. No problem says the prosecution just send it up to the Feds at let them take the first hack at it under more lenient circuit court precedent. Also have seen the state prosecutors refer something to the feds just because they don't have the vast resources of the local AG who can more easily strong arm a plea bargain under some ambiguous federal statute.

    I'm not sure what either of these "problems" has to do with dual sovereignty (unless your complaint is that the federal government engages in criminal prosecution at all).

  • loveconstitution1789||

    [...]
    Second, dual sovereignty grew out of the intense controversy over slavery in the period immediately before the Civil War. The Court invented dual sovereignty largely to prevent free states from blocking the recapture of fugitive slaves.
    [...]

    Another example of the state undermining the Constitution o further racist agendas.

    Gun control is another example of the state violating the 2A to further racist agendas.

  • James Pollock||

    "Gun control is another example of the state violating the 2A"

    The 1789 Constitution you claim to love doesn't HAVE any amendments.

  • TwelveInchPianist||

    There's another rampant violation of double jeopardy that should be addressed: courts sentencing defendants for acquitted conduct.

  • A nerdy Fred||

    > One purpose of dual sovereignty was to prevent "wet" localities from nullifying the Volstead Act.

    That raises a fascinating question that I'm curious about.

    If you succeed in eroding the dual sovereign doctrine in general, and not just in the context of double jeopardy, does that prepare the ground for future court decisions to protect cannabis businesses and their customers in the modern equivalent of "wet" states, those which have some degree of legalization? Are the situations parallel?

  • James Pollock||

    The solution to that particular problem is legislative, not judicial.

    What can be expected to happen is that some people, including people in influential positions of government, will continue to be opposed to cannabis, and some people, including people in influential positions of government, will not be. Ditto for voters, some will want it prohibited, some legalized.

    However, the claims used to justify prohibition will have to change, because inaccurate claims will be readily disproven by the experience in the states where it is legal.

  • WoodChipperBob||

    "However, the claims used to justify prohibition will have to change, because inaccurate claims will be readily disproven by the experience in the states where it is legal."

    You say that as if you think there are enough people who care about facts to make a difference.

  • James Pollock||

    Call me an idealist, I guess.

  • Joe_dallas||

    Multiple statutes for the same offense doesnt make the single offense multiple offenses.

  • James Pollock||

    With whom are you hoping to argue THAT point?

  • Eddy||

    Well, the brief may have changed my mind. I had assumed that dual sovereignty was a protection of federalism, but before the fugitive-slave issue clouded the Court's judgment, the Court and the treatise-writers seemed to agree that conviction/acquittal in one jurisdiction precluded prosecution in another jurisdiction.

    So until slavery made the Court into nationalists ("we mustn't let the states nullify the Fugitive Slave Law with collusive prosecutions!"), double jeopardy was recognized as having a broad scope extending across different jurisdictions.

  • Eddy||

    Of course, before the 14th Amendment one could argue that the *states* could violate double jeopardy. In fact the Court argued this *after* the 14th Amendment, then changed its mind. I think they changed their mind in the right direction, and if they protect the double-jeopardy principle in this case they'll be changing their mind in the right direction yet again.

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