Originalism, Double Jeopardy, and the Dual Sovereignty Doctrine

Over at the Volokh Conspiracy, Orin Kerr notes the cert petition, coauthored by UCLA legal historian Stuart Banner, arguing that the dual sovereignty doctrine of double jeopardy law – which holds that a prosecution by the state for a crime does not bar the federal government from prosecuting for the same crime, and visa versa — conflicts with the Constitution’s original meaning. This doctrine strikes many, when they first hear of it, as ridiculous but it is always taught as black letter law.

At first glance, the originalist evidence seems pretty strong, but I haven’t examined it closely. Still, it would be interesting to see that this counterintuitive doctrine turns out to be made up by the Supreme Court in the 1850s.

The modern Supreme Court addressed the doctrine in 1959, with the different Justices playing their normal parts. That liberty loving man,* Justice Frankfurter, held that the dual sovereignty doctrine conformed to the original meaning, dismissing all of the English evidence. The originalist Justice Black, by contrast, dissented, claiming that Frankurter had misread the early evidence.

Finally, some might wonder whether long standing precedent should stand in the way of the Court reversing course on this one (assuming the original meaning really supports such reversal). I don’t think it should. There is no significant reliance issue here. It is not even clear that any laws would need to be changed in response to such an overruling.