This morning, in the case of Gamble v. United States, the Supreme Court ruled 7-2—with only Justices Neil Gorsuch and Ruth Bader Ginsburg in dissent—that state and federal governments can continue having a second bite at the apple, both prosecuting someone for the same crime if they wish. It’s really unfortunate that the justices declined to withdraw the “dual-sovereignty” exception to the Double Jeopardy Clause. The Court itself created this doctrine decades ago, before the federal criminal code (unconstitutionally) exploded and before the Double Jeopardy Clause even applied to the states. 

As Justice Gorsuch wrote, “the separate-sovereigns exception to the bar against double jeopardy finds no meaningful support in the text of the Constitution, it’s original public meaning, structure, or history.” To put a finer point on it, it’s fully consistent with federalism to say that nobody should be prosecuted twice for the same crime. 

That is, federalism—the division of sovereignty between the federal and state governments—exists to protect our liberties. It divides power to lessen the chance of government abuse. It decidedly does not multiply power or act as some sort of redundancy whereby the federal and state government both get to regulate in the same areas—including the criminal law. 

It’s a shame that the Supreme Court failed to correct the constitutional anomaly here, and to ensure that criminal defendants receive the protection against multiple prosecutions that the Fifth Amendment so plainly commands.

For more on this line of analysis, see Cato’s brief.