Gamble v. U.S.: Brief of Amici Curiae Law Professors in Support of Petitioner

23 Pages Posted: 10 Sep 2018 Last revised: 11 Sep 2018

See all articles by Stuart Banner

Stuart Banner

UCLA School of Law; Washington University in St. Louis - School of Law

Paul G. Cassell

University of Utah - S.J. Quinney College of Law

Date Written: 2018

Abstract

In this case currently before the U.S. Supreme Court, petitioner Gamble's brief demonstrates that there was no dual sovereignty doctrine before the mid-19th century. 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. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified. But that fact only raises three further questions. First why did the Court erroneously conclude in Bartkus v. Illinois, 359 U.S. 121, 131 (1959), that the English and early American sources are “totally inconclusive” as to whether dual sovereignty existed at the Founding? Second, how, when, and why did the dual sovereignty doctrine come to exist? Third, given this history, why did the Court hold in United States v. Lanza, 260 U.S. 377 (1922), that a state prosecution does not bar a subsequent federal prosecution for the same conduct? This amicus brief answers these three questions. First, in Bartkus the Court simply misunderstood the English and early American sources. Second, dual sovereignty grew out of the intense controversy over slavery in the period immediately before the Civil War. The Court invented dual sovereignty largely to prevent free states from blocking the recapture of fugitive slaves. Third, by the time of Lanza, the dual sovereignty doctrine had been restated so often that the original meaning of the Double Jeopardy Clause had been forgotten. In Lanza, in any event, the Court was less concerned with original meaning than with rampant disregard for Prohibition. One purpose of dual sovereignty was to prevent “wet” localities from nullifying the Volstead Act. In short, dual sovereignty is an accident of history. It was not part of the constitutional design.

Keywords: Dual Sovereignty, Double Jeopardy, Constitution

Suggested Citation

Banner, Stuart and Cassell, Paul G., Gamble v. U.S.: Brief of Amici Curiae Law Professors in Support of Petitioner (2018). University of Utah College of Law Research Paper No. 280, Available at SSRN: https://ssrn.com/abstract=3247195 or http://dx.doi.org/10.2139/ssrn.3247195

Stuart Banner (Contact Author)

UCLA School of Law ( email )

405 Hilgard Ave.
Los Angeles, CA 90095-1476
United States
310-206-8506 (Phone)
310-825-6023 (Fax)

Washington University in St. Louis - School of Law

MO
United States

Paul G. Cassell

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States
801-585-5202 (Phone)
801-581-6897 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
115
Abstract Views
747
rank
279,596
PlumX Metrics