The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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."