Double Jeopardy and SCOTUS Visions of Federalism

by J. Wesley Leckrone

This week the United States Supreme Court ruled that both the federal and state governments could prosecute a person for the same crime. The case, Gamble v. US, provided an opportunity for SCOTUS to rule that this constituted double jeopardy. However, a 7-2 majority upheld decades of precedent and reiterated the principle of the federal and state governments being “separate sovereigns”. If you’re interested in the facts of the case please read this article in the New York Times.

What I find most interesting is the internal debate between the majority (represented by Justice Alito’s opinion) and the dissenting opinions of Justices Ginsburg and Gorsuch on the meaning and purposes of American federalism. Below are edited excerpts related to this discussion from the opinions in Gamble v. US. Click here for the full text of the opinions.

Justice Alito:

It is true that the Republic is “‘ONE WHOLE,’”…(opinion of GINSBURG, J.) and …(opinion of GORSUCH, J.). But there is a difference between the whole and a single part, and that difference underlies decisions as foundational to our legal system as McCulloch v. Maryland, 4 Wheat. 316 (1819). There, in terms so directly relevant as to seem presciently tailored to answer this very objection, Chief Justice Marshall distinguished precisely between “the people of a State” and “[t]he people of all the States,”…; between the “sovereignty which the people of a single state possess” and the sovereign powers “conferred by the people of the United States on the government of the Union,”…; and thus between “the action of a part”…. In short, McCulloch’s famous holding that a State may not tax the national bank rested on a recognition that the States and the Nation have different “interests” and “right[s].”… One strains to imagine a clearer statement of the premises of our dual-sovereignty rule, or a more authoritative source. The United States is a federal republic; it is not, contrary to JUSTICE GORSUCH’s suggestion, post, at 10–11, a unitary state like the United Kingdom.

Gamble and the dissents lodge a second objection to this line of reasoning. They suggest that because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence…(opinion of GINSBURG, J.) and…(opinion of GORSUCH, J.). This argument fundamentally misunderstands the governmental structure established by our Constitution. Our federal system advances individual liberty in many ways. Among other things, it limits the powers of the Federal Government and protects certain basic liberties from infringement. But because the powers of the Federal Government and the States often overlap, allowing both to regulate often results in two layers of regulation. Taxation is an example that comes immediately to mind. It is also not at all uncommon for the Federal Government to permit activities that a State chooses to forbid or heavily restrict—for example, gambling and the sale of alcohol. And a State may choose to legalize an activity that federal law prohibits, such as the sale of marijuana. So while our system of federalism is fundamental to the protection of liberty, it does not always maximize individual liberty at the expense of other interests. And it is thus quite extraordinary to say that the venerable dual-sovereignty doctrine represents a “‘desecrat[ion]’” of federalism… (opinion of GORSUCH, J.).

Justice Ginsburg:

The United States and its constituent States, unlike foreign nations, are “kindred systems,” “parts of ONE WHOLE.”…. They compose one people, bound by an overriding Federal Constitution. Within that “WHOLE,” the Federal and State Governments should be disabled from accomplishing together “what neither government [could] do alone—prosecute an ordinary citizen twice for the same offence.”…. The notion that the Federal Government and the States are separate sovereigns overlooks a basic tenet of our federal system. The doctrine treats governments as sovereign, with state power to prosecute carried over from years predating the Constitution…. In the system established by the Federal Constitution, however, “ultimate sovereignty” resides in the governed…. Insofar as a crime offends the “peace and dignity” of a sovereign…that “sovereign” is the people, the “original fountain of all legitimate authority,”…. States may be separate, but their populations are part of the people composing the United States. In our “compound republic,” the division of authority between the United States and the States was meant to…operate as “a double security [for] the rights of the people.”…. The separate sovereigns doctrine, however, scarcely shores up people’s rights. Instead, it invokes federalism to withhold liberty.

Justice Gorsuch:

The Court seems to assume that sovereignty in this country belongs to the state and federal governments, much as it once belonged to the King of England. But as Chief Justice Marshall explained, “[t]he government of the Union . . . is emphatically, and truly, a government of the people,” and all sovereignty “emanates from them.” Alexander Hamilton put the point this way: “[T]he national and State systems are to be regarded” not as different sovereigns foreign to one another but “as ONE WHOLE.” Under our Constitution, the federal and state governments are but two expressions of a single and sovereign people.

And any remaining doubt about whether the dissenting States and the federal government are truly separate sovereigns was ultimately “resolved by war.”

From its mistaken premise, the Court continues to the flawed conclusion that the federal and state governments can successively prosecute the same person for the same offense. This turns the point of our federal experiment on its head. When the “ONE WHOLE” people of the United States assigned different aspects of their sovereign power to the federal and state governments, they sought not to multiply governmental power but to limit it. As this Court has explained, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Yet today’s Court invokes federalism not to protect individual liberty but to threaten it, allowing two governments to achieve together an objective denied to each.

As Justice Black understood, the Court’s view today “misuse[s] and desecrat[es] . . . the concept” of federalism. For “it is just as much an affront to . . . human freedom for a man to be punished twice for the same offense” by two parts of the people’s government “as it would be for one . . . to throw him in prison twice for the offense.”


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