« What's Excessive?
Michael Ramsey
| Main | Incorporating the Grand Jury Right Against the States
Andrew Hyman »

12/10/2018

What Are the Implications of Originalism for the Separate Sovereigns Doctrine?  None Whatsoever
David Weisberg

It has been asserted recently that there are "strong originalist arguments" for abandoning the separate sovereigns doctrine (SSD).  E.g., Paul Cassell and Stuart Banner here.  I agree that there are strong--indeed, compelling--arguments for rejecting the SSD, but none of them have anything whatsoever to do with original-public-meaning originalism.  

First of all, there is absolutely no reason to believe that any word in the Double Jeopardy Clause of the 5th Amendment had an original meaning in 1791 that is any different from its current meaning in 2018.  Just a few minutes perusing the Oxford English Dictionary will confirm this fact.  

Secondly, it is universally accepted that all of the first eight amendments, at the time of their adoption, were restrictions or limitations on the power of the federal government and not on the power of the States.  Therefore, if the Clause had been designed to permit the federal courts to subject a person to double jeopardy after a trial in state court, the Framers would have drafted the Clause to read: "nor shall any person be subject for the same federal offense [or, perhaps more formally, "for the same offense against federal law"] to be twice put in jeopardy of life or limb".  Either formulation would clearly leave open the option of federal prosecution for the same offense after state prosecution.  Did the Framers fail to note what would have been a very obvious drafting error?  I think not.

Finally, Cassell and Banner have argued: "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."  The "thus" in this argument is a non-sequitur.  Suppose the SSD had initially been announced by the Court one year, or one month, or even one day after the adoption of the Double Jeopardy Clause.  Would one conclude in that case (a) that the original meaning of the Clause had changed, or (b) that the Court had issued its mistaken interpretation even sooner than it did in fact issue it?  

I vote for (b) because, no matter when the SSD was first announced by the Court, it cannot change the fact that the Double Jeopardy Clause does not by its terms prohibit federal courts from subjecting people to double jeopardy with regard only to federal offenses.  Therefore, unless one accepts that the Framers screwed up royally, one must conclude that the Clause bars federal courts from re-litigating both federal offenses and identical state offenses, and that it is the Court that screwed up royally.  The meaning of a constitutional provision cannot rationally turn on the question of how soon after its adoption the Court first misinterpreted that provision; that makes no sense at all.  

I have argued (here and here) that original-public-meaning originalism is a dead end.  The weakness of the "strong originalist arguments" against SSD only further confirms that conclusion.