The Constitution of the United States is “the supreme law of the land.” Who decided that? “We the People” decided that when we ratified the Constitution.
“We the People” also ratified the Bill of Rights, in which we declared the following: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."
“Any” means “any.” This provision applies to any citizen of the United States as one of his inalienable rights. It applies to every citizen of the United States without exception.
The Merriam-Webster definition of “any” is “one or another taken at random.” In other words, when the people ratified the 5th Amendment we declared as an act of finality that you can pick, at random, any citizen of the United States, and that person has a right never to be put in legal jeopardy twice for the same crime. That is the supreme law of the land.
The Supreme Court yesterday, in a 7-2 decision that shamefully included Justices Thomas and Alito, said that under its manufactured doctrine of “dual sovereignty” an American can, in fact, be subject to double jeopardy. The Constitution? Fuhgeddaboutit.
The case at hand involved a miscreant by the name Terance Gamble. After being convicted of robbery, he was stopped for a broken headlight and police found a loaded gun in his car, a felony offense given his prior conviction. Gamble pled guilty.
Gamble then found himself several months later in a federal court, being prosecuted for exactly the same offense, which is also a felony under federal law. So, in fact, he had been placed in legal jeopardy again for the same crime. He quite rightly appealed this second guilty verdict, but yesterday his plainly just appeal was flatly denied by the Court.
The twisted understanding of double jeopardy employed yesterday by the Court does not go back to the Constitution. It only goes back to a court ruling from 1852. In a case dealing with the harboring of runaway slaves, a man was punished for his deed by both the government of Illinois and was also subject to punishment under federal law for the same act. (If the law is a bad law, the solution is a better law, not judicial activism.)
As the dissenter in the 1852 case (Justice McLean) said, “It Is believed that no government, regulated by laws, punishes twice criminally the same act. And I deeply regret that our government should be an exception to a great-principle of action, sanctioned by humanity and justice. It seems to me it would be as unsatisfactory to an individual as it would be illegal, to say to him that he must submit to a second punishment for the same act; because it is punishable as well under the State laws, as under the laws of the Federal Government.”
Government, according to the benighted wisdom of yesterday’s Court opinion, gets two bites at the apple. If a state acquits a man of a crime and the federal government doesn’t like it, why, they can try him all over again for exactly the same crime. This is an abomination.
You will note that the Double Jeopardy clause doesn’t say anything about “dual sovereignty” at all. It speaks only of prosecutions for “the same offense,” no matter who is doing the prosecuting. In America, we the people prohibited government at any level from infringing on this precious right. It belongs to any and every American. What matters here, as Gamble’s attorneys correctly argued, is not the sovereign doing the prosecuting, but the conduct being punished.
This is not rocket surgery. The language of the 5th amendment is as clear and unambiguous as it is possible to be. If an act is a crime under both state and federal law, then prosecutors need to sit down and decide which of them is going to carry the ball. But only one of them gets to do it.
In 355 B.C. Demosthenes said that the "law forbids the same man to be tried twice on the same issue." Demosthenes has been right for 2,374 years. The Supreme Court had a chance to catch up to Demosthenes yesterday, but it whiffed. And now Americans can be prosecuted by government power as often as it takes for the government to get the verdict it wants.