Constitution Burning: How SCOTUS’s Conservatives Failed America

Alexander Winn

I: Introduction

When Justice Kennedy retired, creating a vacancy on the Supreme Court for Donald Trump to fill, Conservatives were salivating. Mitch McConnell’s filibustering in the Senate had delivered a suitably qualified conservative justice, Neil Gorsuch, to replace the great Antonin Scalia. To solidify a 5-4 Conservative majority, President Donald Trump nominated Brett Kavanaugh, in order to epically ‘rek’ the progs in the culture wars. Kavanaugh had obvious flaws: he was the definition of a Washington insider; he was never on the Federalist Society’s shortlist; he possessed some very concerning views about the 4th Amendment and he was an institutionalist, pragmatic judge to the core.  These flaws were completely neglected by wide-eyed Conservatives focused only at the prize at hand. With Kavanaugh passing through a nomination circus, [1] Conservatives had a once in a generation chance to permanently shift the Court’s judicial philosophy; to finally undo many of the incorrect subversions of the Constitutional order thrust upon the American people by previous years of judicial activism.

Yet on the 17th of June, 2019, the Conservative majority of the Supreme Court of the United States, composed of Chief Justice John Roberts, Justices Alito, Kavanaugh and, most regrettably, Clarence Thomas, failed the standard by which a conservative Court should rule. They failed because they sided with the Government in upholding the separate sovereign’s doctrine read into the 5th Amendment in the case of Gamble v US (2019). Neil Gorsuch was the only conservative to dissent.

To establish what a successful conservative judgement is, and to benchmark just how awful the decision in Gamble v US is when juxtaposed against this ideal standard, we ought to make clear what a successful conservative legal agenda is not. Conservatism on the Court is nowhere near as crude as guns good, abortion bad. Conservatism on the Court is not about just acquiescing to Presidential authority, nor giving the police a blank cheque to go tough on crime. Conservatism on the Court should certainly not take the form of mindless adherence to stare decisis despite the incorrectness of past precedents.

Fundamentally, a successful conservative Court is one that adheres to Originalism, a doctrine which tries to interpret the Constitution’s text in light of the intentions of the authors of the text, and those who ratified and would have understood the meaning of the text at the time of adoption. Within Originalist thought, there are two sub groups. There are old Originalists like Robert Bork who place more emphasis on the actual intentions of the authors themselves and there are new Originalists who try and use the public meaning of these texts at their ratification. The late Justice Antonin Scalia was an adherent of this latter variation. On the Court currently, Justices Clarence Thomas and Neil Gorsuch are new Originalists.

While there are valid critiques to be made of New and Old Originalism, I argue that overall these approaches provide the most solid foundation for an objective reading of the Constitution that preserves its meaning, America’s constitutional republican form of government and its citizens’ civil liberties. Anything that deviates from this approach risks politicising the Court and often leads to constitutional interpretations that destroy delicate checks and balances for the coarseness of exigency.

II: Gamble v US, the Background

Gamble v US offered Originalists a gift almost dropped from heaven. It was a case in which the appellant’s brief was almost wholly based on an Originalist understanding of the Constitution. A felon named Terrance Martinez Gamble was convicted under both Alabama and Federal law for the same offence: being a felon in possession of a firearm. He challenged the propriety of his Federal conviction on the basis that it violated his right against double jeopardy under the 5th Amendment. Under recognised Supreme Court precedent, a person can be tried twice for the same offence where that offence is against two different sovereigns, the State and Federal Governments, without falling afoul of the 5th Amendment’s guarantee against double jeopardy.  As Justice Elena Kagan opined in oral argument, she was “confused as to why the argument [that is for Gamble’s side] seemed one note.” She further dismissively stated “that some people on the bench think that is the Alpha and the Omega on every Constitutional issue.” Taking Kagan’s statements unironically and without the dripping derision, the brief provided by the appellant was extraordinarily Originalist and therefore provided the Court a crucial opportunity to explore its history. Based on an analysis of the Court’s opinion and briefs submitted by the parties to the case, in light of the 5th Amendment’s text, drafting history, authorial intent, the existing common law understanding,  post ratification treatises and State and Supreme Court precedent, it is clear that the separate sovereigns doctrine is incompatible with an Originalist understanding of the 5th Amendment, and thus ought to be rejected by a conservative Court.

Before we continue, I must mention that Clarence Thomas, an actual avowed Originalist, somehow found on the merits of the case for the Government and sided with the majority. Notwithstanding the fact that I believe Thomas is dead wrong and has misapplied Originalism in this case, he at least made a concurring judgement questioning the majority’s application of stare decisis and repeated his commitment to Originalism in general. Thomas’s views on stare decisis will be touched on later, but needless to say, Roberts, Alito and Kavanaugh failed to do even that.

III: Double Jeopardy: Context

The rule against double jeopardy is grounded in natural law. To prosecute and punish someone twice for the same offence is an incontestable and gross deprivation of liberty. The intellectual history of the development of double jeopardy is, as Justice Gorsuch rightly points out, ancient. Scholar David Rudstein explains The Talmud, a collection of ancient Jewish writings which include Biblical passages, prohibited double jeopardy. Deuteronomy 25:2 was relied upon by Hebrew authorities to prohibit flogging and killing a man when the crime only entailed the latter. The Talmud also prohibits prosecuting someone again when they have been found innocent.  The Cain and Abel story (Genesis 4:13-15) is also used as a justification to prohibit double jeopardy, namely when Cain was expelled, God prevented any further harm occurring to him on the basis that he had already been punished. St Jerome continued this tradition in Church law through an interpretation of Nahum 1:9. The KJV states “affliction shall not rise up the second time”, barringdouble jeopardy (Rubstein states that St Jerome’s interpretation of the passage may have been erroneous, but for the purposes of this article that is not particularly important, given it was widely accepted and forms part of intellectual history). Double jeopardy was also barred under Greek law as speeches as early as 335 BC reveal, and in Roman law by the maxim nemo debet bis puniri pro uno delicto – no one ought to be punished twice for the same offence – although Roman rules differed substantially from modern double jeopardy principles (Rudstein). It is thus a fundamental right, supported by the rich intellectual history of  Judeo-Christian values and Greco-Roman legal traditions.

The historical origins of how it came to England are unknown, but from the 13th Century onwards there is clear evidence of its usage as part of the common law. I recommend Rudstein’s article, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy. It provides a fascinating insight into English double jeopardy history, and how the development of the modern law was not at all straightforward. Those English principles, as they developed, crossed the Atlantic and were officially recognised by Massachusetts and Connecticut in 1641 and 1652 respectively for the first time. Double jeopardy law would from then on be an integral part of the Anglo-American legal tradition, which would continue through to the Founding.

IV: American History and Drafting

The Majority’s invocation of the Declaration of Independence is entirely perverse, so twisted from fact that Jefferson would leap out of his grave at Monticello, and ride as swift as the wind to Washington to destroy the very document he so meticulously crafted, so that it could never again be so shamefully abused. The Majority fancifully claims that if conjectures about the purpose of the text control meaning, the Government would surely win because the Declaration complained of the Administration of Justice Act, or more commonly known in the American colonies as the Murders Act[2], which allowed British troops who supposedly committed crimes in the colonies to be tried in front of a judge-only trial in Britain or another British colony. Witnesses, despite receiving some nominal compensation to travel, would be in no position to travel and testify against the soldiers, allowing for acquittals of “guilty redcoats.” Thus, so the Majority says, Gamble would have to conclude that if his rule is correct, these acquittals would have been a bar at law to subsequent prosecutions within the United States. If the Majority was to be believed, the Patriots of ‘75, at Lexington, Concord, Bunker Hill, Valley Forge and Yorktown bled to prevent foreign prosecutions. Not so! The Majority seems to forget that the 6th Amendment exists, securing a jury trial in the State or district in which the crime was committed for all criminal prosecutions, in front of a jury of one’s peers. Its text, purpose and meaning more than comfortably prevent the type of prosecutions the colonists so loathed. And even in the one in a billion chance the 6th Amendment does not prevent those trials, there would be absolutely no chance any American Court would regard a Vice-Admiralty Court a Court of competent jurisdiction or not a sham trial (which Gamble’s submission asserted was not useful to plead in bar). What the Majority has done is frankly reprehensible; to strip American citizens of their fundamental, natural, Constitutional and inalienable rights against double jeopardy, and to clothe such a deprivation in the hallowed, foundational documents that inspired millions to fight for those very rights.

Instead, as all good Originalists should, we will start with the amendment’s text. It states:

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

The plain meaning of the text admits no exception, nor is the Separate Sovereigns doctrine an obvious, composite part of the amendment. Alito suggests that Separate Sovereigns is somehow part of the text, because it is the Sovereign that decides the offence, and therefore as night follows day, you cannot be tried for the same offence if they are in fact not the same offence. For this task we must inquire as to how the Founders intended the meaning of the word offence. Using Founding era dictionaries, many of which were quoted by the Majority used in Heller, Alito’s understanding is very sketchy. Samuel Johnson’s 1773 edition of his dictionary defined offence as “1. Crime; act of wickedness or 2. A transgression”. The 1783 second volume of Timothy J Cunningham’s A New and Complete Law Dictionary (Heller used the 1771 version, but this one is closer to the Founding) defines offence as “an act committed against law or omitted where the law requires it and punishable by it”. A 1753 pocket dictionary by John Bevis defined offence as “a fault, trespass or injury”. Finally, in the standard Noah Webster dictionary of 1825, written by the Founding Father and Federalist writer himself, offense is defined as, inter alia, “3. Any transgression of law, divine or human; a crime; sin; act of wickedness or omission of duty”. As can be seen, the understanding of offence was obviously connected to law – it was not somehow different because different positive law said so when the elements of the offence were the exact same. This holds true whether we are dealing with two positive laws promulgated by two sovereigns or two positive laws promulgated by separate sovereigns. Justice Gorsuch further reinforces this conclusion with historical examples of usage from the First Continental Congress. In 1778, the Continental Congress declared a person should not be tried in a State court for the same offence they were tried under a Court Martial. The Continental Congress in 1785 considered to enact an Ordinance allowing a defendant to plead an acquittal in a Maritime Court in bar for a prosecution of the same supposed offence in a Court anywhere else in the United States.  Further to that, in 1786 a Congressional committee recommended Federal control over import duties, because violations could result in prosecutions for the same offence in multiple states. Clearly, offence was not sovereign specific. Alito provides zero rebutting evidence to the dictionary or Congressional evidence, probably because it doesn’t exist. The consensus at the time was clear.

When Madison first introduced the amendments that would become the Bill of Rights to the House of Representatives on the 8th of June, 1789, two States had still not joined the Federation, Rhode Island and North Carolina, and Madison was keen for them to enter the fold. New York in its ratification documents had also called for a double jeopardy clause. In his speech, Madison acknowledged that to do this, and to assuage hundreds of thousands of Anti-Federalists, the Constitution would be amended to prevent the Federal Government abusing the powers it was given. This statement of intention must surely be given at least some weight in determining original intention by weighing up alternatives in the law. Madison in the same speech proposed the forerunner to the 5th Amendment clause. It read:

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office.”

Most relevant to the Separate Sovereign’s exception, George Partridge of Massachusetts moved in Committee to amend the provision to insert language that would move towards a sovereign specific reading. He would have added “by any law of the United States.” This proposal was knocked down. Alito tries to dismiss this evidence, but it really does provide an excellent snapshot into original intent, which he simply can’t counter using further drafting evidence. Other objections to the language lead to further amendments, because some members of the Committee believed Madison’s proposed language precluding multiple trials might preclude the operation of settled legal principles at the time that allowed convicted individuals to be re-tried on a finding of malpractice. Representative Roger Sherman of Connecticut in the debates, for instance, commented that on a finding of acquittal the Government could not get themselves a second trial, but where things appeared to allow the conviction to be set aside, a convicted defendant could get a second trial. Clearly, the drafting history of the amendment demonstrates that its purpose was to protect the liberty of criminal defendants, enshrine existing common law principles and reject a Separate Sovereigns understanding.

V: English Case Law

Our analysis now turns to English case law. The cornerstone case is Rex v Hutchinson 3 Keb 785. It concerns a man named Hutchinson who murdered a Mr Colson while in Portugal and was acquitted of that murder, and was then brought to England to be tried. All that is left of the record of Hutchinson’s Case appears as a bail notation. It reads:

On Habeas Corpus it appeared the Defendant was committed to Newgate on suspicion of Murder in Portugal, which by Mr. Attorney being a Fact out of the Kings Dominions, is not triable by Commission, upon 35 H. 8. Cap. 2. §. I. N. 2. But by a Constable and Marshal, and the Court refused to Bail him, & c.”  Rex v. Hutchinson, 3 Keb. 785, 84 Eng. Rep. 1011 (1677).”

As the Majority point out, all that can be deduced from the actual case report is that a British subject was tried for a murder in Portugal, the Attorney for the accused pleaded that the Commission established under an Act of Henry VIII did not have the authority to try the issue, and he was refused bail as was typical for murder suspects at the time. The report provides no further evidence. Alito contends that the case probably found its way to the Court of Chivalry. If it did, and if the judges found a prior acquittal barred subsequent prosecution, it would not be sufficient evidence since that Court, like Admiralty, was not bound by the common law, nor committed to the advance of the common law. However, as Alito acknowledges, we do not know which Court eventually heard the matter, so we must rely on secondary accounts of Hutchinson.

There are at least three such accounts. Alito places the most significant reliance on Gage v Bulkeley (1744) Ridg T.H. 269 which is a civil case involving a bill in Chancery where 40,000 pounds was deposited with a French banker as a security. The defendant claimed that a finding in a French Court barred this suit. In this context Hutchinson was cited. According to Gage, Hutchinson was not indicted nor was the foreign acquittal pleaded because he was brought by habeas corpus in front of the King’s Bench, and the Kings Bench before anything occured had to decide whether a commission under 33 Hen 8 c. 28 should try him again. They decided not to proceed, “very rightly and mercifully” because of prior acquittal. This was an act of grace, not binding law. The Court went on to reject foreign adjudgments in the context of common law and equity. The fairest reading of Gage certainly supports Alito’s reading, and in this context, it is difficult to fault the Majority.

In comparison, Burrows v Jemineau (1726), also reported as Burrows Jemino (1726), stated that Hutchinson prosecuted a man in Spain or Portugal (the reporters vary) and it was held that a trial or acquittal there was in good bar to further proceedings in England. These cases were also about bills of exchange in England.  Burrows clearly provides evidence for the traditional reading.

Furthermore, the case of Beak v Thyrwhit 3 Mod 194, also reported as Beake v Tirrell 1 Show 6, state that Mr Hutchinson was brought before the Court on habeas corpus, but because the King was eager to have him tried in England, referred it to the judges who determined Hutchinson could not be tried again because his prior acquittal was a good bar. Alito objects to using Beake on the basis that the remarks about Hutchinson were made by the defence counsel, not the judges that decided Beake. Gorsuch handily dismisses the argument, by reminding Alito that the Court never rejected the defence counsel’s argument and it shone light on common legal practice in the 17th and 18th centuries. The fact that it was argued by the defence counsel does not wash away the validity of the source. Alito further objects, stating that the report of the actual decision by the Court in the case, as reported in Beak v Tyrrell 3 Mod. 194, S.C., makes no mention of the Hutchinson argument either favourably or unfavourably. So, as Alito posits, Beake really proves nothing. But Beake, much like Burrows and Gage, was not a criminal case. It was a civil action, and this time based on trover for a ship which was seized by the defendant as a prize because the ship was supposedly illegally trading in the East Indies[3]. Clearly, the application of Hutchinson’s rule may not have been relevant when assessing whether the Court of Admiralty was a court of competent jurisdiction for an action in trover. That doesn’t invalidate Hutchinson’s rule as a rule of law for double jeopardy, only its application to barring civil actions. In the latter case, that is scarcely surprising given the big disparity between criminal and civil law. Hutchinson’s omission from the final report in Beak is barely surprising, nor damaging to Gamble’s case.

Additionally, I would note that external citations of cases are important corroborative evidence in determining which account of Hutchinson was most accepted at the time, and thus which account should be given the most weight by the Court. As Gorsuch notices, Gage was not cited approvingly. As a matter of fact, it was not cited in a single external treatise. In comparison, the supposedly weak, unauthoritative Beake source was cited favourably by Sir William Blackstone in the fourth volume of his seminar work the Commentaries on the Laws of England in relation to double jeopardy. Blackstone’s work is so important because it was itself widely published, distributed and read in the American colonies during the Founding Era. Every competent American lawyer had a copy of Blackstone. So seminal was his text that it stands alongside John Locke’s Second Treatise on Government as a text that influenced the Founders. Its significance in citing Beake should not be downplayed, nor ignored as Alito does. Another treatise, John Strange’s A Collection of Select Cases Relating to Evidence (1754) repeats Burrows v Jemino word for word. Therefore, the accounts provided in Beak and Burrows are more supported than that in Gage, and therefore on the preponderance of the evidence that account of Hutchinson should have prevailed.

Added to this are two other cases. R v Captain Roche (1789) 1 Leach 134 concerns a sailor that supposedly murdered John Ferguson at the Cape of Good Hope. Roche pleaded Autrefois acquit as a bar to further proceedings. The prosecution then moved to have the issue dealt concurrently with the merits of the case. The Court responded that Roche could not plead Autrefois acquit and not guilty simultaneously, because a finding on the former plea would be a bar to the latter. Roche then elected to not push Autrefois acquit and instead entered a not guilty plea, which the jury ultimately favoured. Alito asserts that because the Court had no opportunity to judge upon Roche’s Autrefois acquit plea because he withdrew it, the case says nothing at all about the issue. Gorsuch’s counter on this point is crucial. The Court, by recognising that the two could not be plead at the same time, did not say nothing. In fact, they said a great deal. If acquittal in a foreign jurisdiction was not settled as a bar, the case would have made no sense. If a prosecution in a foreign jurisdiction was not a bar, then the defendant would have no choice – he would only be able to plead not guilty. You can’t plead a bar that does not exist! The mere existence of this choice illustrates more confirmation of the rule. While not in existence in the 1789 edition of the case, footnote (a) was added by a later reporter in 1800 to Roche which quoted the rule in Hutchinson and almost verbatim repeated the defendant’s argument in Beake. Alito objects that because the footnote was added in 1800, it adds no weight to the original understanding of the 5th Amendment, ratified in 1791. This is problematic because the footnote does not redefine the rule, only supplementing the implication from the original decision, and clarifying the law as it existed when the case was initially decided in 1791.

The final case is Rex v Thomas (1664) 1 Lev 117. A man was accused of murder, but acquitted in Wales and brought before trial in England for the same offence. He successfully plead acquittal in bar of further prosecution in England. Alito objects that England and Wales were under the same sovereign at that time, and therefore the case is irrelevant. However, the operation of England, Scotland and Wales was analogised by the Founders to the new Federal system of government. Thomas is probably the weakest evidence given England and Wales did share the same sovereign at the time, but not irrelevant given its parallels to Federalism.

Therefore, the case summaries go five cases for Gamble, only one against. That would seem to provide ample authority to find a common law right against prosecution for the same offence in multiple courts of competent jurisdiction.

Before further turning to the evidence from other sources, I would like to address a very pertinent, methological point within originalism. Let’s say for the sake of argument that Alito is in fact correct about the authority of pre-ratification of English sources. Let’s just say that Roche and Thomas should be ignored entirely because they don’t stand for anything relevant. Let’s say that Gage’s account of Hutchinson is far more accurate than that contained in Burrows. Let’s acknowledge that Beake was a defence argument and of little to no value. Let’s concede that the “mountain of evidence” Gamble presented in English case authority is really a molehill, and it either does not, or at least does not clearly, support his case. Even under these circumstances the originalist analysis is not exhausted. The purpose of determining what the real common law rule was, is to provide a clear picture of what the Founders intended. Ordinarily, it will be simply sufficient to determine what the common law actually meant to determine that the Founders must have intended to codify that into the law. If the common law reflected a proposition, ordinarily it will be taken that the Founders intended to codify it; if the common law did not reflect a proposition, ordinarily it will be taken that the Founders did not intend to codify it. But what about cases in which the common law in fact did not stand for a proposition, but the Founders wrongly thought that it did? Originalists must not lose sight of the forest for the trees. The purpose of this analysis is to determine what the Founders actually intended the text to mean – the Founding intention at all times remains the paramount concern. If the Founders had an erroneous understanding of the common law, it is that erroneous understanding that was embodied in the text of the Constitution and thus relevant to the final decision of the Court.

Section 116 of the Australian Constitution provides a somewhat analogous case study. It is clear that Section 116 was influenced by the establishment and free exercise clauses of the 1st Amendment to the US Constitution and Article VI Clause 3 which prohibited religious tests for holding office. In determining a religious liberty case under Section 116, an Australian Originalist might, in light of the similarities in language, peer back into the original meaning of the free exercise clause. But that would conceal a fatal mistake. The documents from the Federalist Conventions and from Quick and Garran strongly indicate the understanding the Australian Founders had of freedom of religion as contained in the 1st Amendment was grounded in the precedent of the time, namely from a series of Mormon cases , Reynolds v US  (1878), Davis v Beason (1890) and LDS v US (1890). Whether those cases were true to what the 1st Amendment’s original meaning (and this has been questioned, but I need not answer it here) is totally irrelevant to the Section 116 analysis. In a similar way, even if Alito is right about the common law, the analysis is not foreclosed, and we move to the American understanding. Nevertheless, Alito’s case does not look good.

VI: Treatises

Alito’s treatment of the historical evidence provided by treatises is as mystifying as it is appallingly incorrect. To begin at the crux of the issue, Alito asserts that the two principle pre-ratification treatises upon which Gamble rests his case are not demonstrative of  the claim that the prosecution and conviction or acquittal of a crime by a foreign court of competent jurisdiction at common law could be pleaded in bar to another prosecution. The treatises authored by High Tory Henry Bathurst, the 3rd Earl of Bathurst and Sir Francis Buller are essentially identical in language and make the same claim. That being:

In Consequence of the second Part of the Rule, If A having killed a Person in Spain was there prosecuted, tried, and acquitted, and afterwards was indicted here, he might plead the Acquittal in Spain in Bar; because a final Determination in a Court having competent jurisdiction is conclusive in all Courts of concurrent jurisdiction.”

Both treatises go on to cite Hutchinson for the proposition. From the plain reading of the quotations it would seem very clear, Gamble’s rule is the rule. But Alito claims these treatises are really only relevant to the preclusive effect of a foreign judgement in civil proceedings, namely that an acquittal in a foreign jurisdiction will force the Courts in a civil context to assume the defendant is innocent, thus defeating the purpose of proceedings. So we are told Gamble was convicted, not acquitted, and thus the treatises provide no support. But even if is true that Hutchinson and Buller are citing Hutchinson to try and argue for the preclusive effect in a civil trial, it is also true that they are citing acquittal in a competent foreign jurisdiction as a bar to a subsequent prosecution as a common law rule, which is the only relevant part for Gamble’s argument. Alito might be entirely correct that their argument in relation to civil preclusion is bogus. Still, it would not matter because the treatises by their plain text and meaning are citing an ancient common law, which stands despite possible relevance to other tangential areas.

Next, there were several other pre-ratification treatises cited by Gamble. Blackstone states quite clearly that the plea of autrefois acquit is a “universal maxim of the common law of England.” As a consequence “where a man has been found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime.” As discussed previously he cites Beake which directly raises issues for the separate sovereigns’ doctrine. Rather than reading Blackstone into a ‘flyspeck’ as Alito asserts, Gamble reads it completely correctly. I suppose the Supreme Court has directed us to just totally ignore footnotes. I wonder how much detail would be missed if we applied the same rules to their own judgements! William Hawkins in the second volume of his Treatise of Pleas of the Crown (1721) states that the rule was well settled (that is by 1721), that an acquittal in Wales would bar a subsequent prosecution in England and cites Thomas. As mentioned previously, John Strange’s treatise also supports Gamble’s contention.

Alito’s treatment of post ratification treatises is even worse. Alito basically airbrushes any post-ratification treatise aside because ostensibly, post-ratification treatises can only be used to substantiate a wealth of pre-ratification evidence. According to Alito, because the latter does not exist, the former should just be ignored. This is by far the most bizarre part of the whole judgement. Firstly, as Gamble rightly pointed out at oral argument, two of the post ratification treatises, Chitty and Starkie, were used by Scalia in Grady v Corbin. If they are good enough for the great Scalia, they should be good enough for Alito. Not so apparently. Secondly, Alito’s distinction between Heller and Gamble is absurd. As we discovered above, there certainly is evidence for this pre-ratification rule, and plenty to engage in an analysis of post ratification treatises. But furthermore, one of the treatises, William Rawle’s A View of the Constitution of the United States (1825), a post-ratification treatise, was cited in Heller as an important authority to establish an individual right to keep and bear arms, but is totally ignored by Alito. Are we to take it that William Rawle, appointed as the district attorney for Pennsylvania by George Washington, knew exactly what the original intent of the Constitution was with respect to the right to keep and bear arms, but was too incompetent to even understand the basic common law rules of double jeopardy and the original intent of the 5th Amendment? I think not.

Furthermore, Alito proffers up no evidence as to what factors could have resulted in a hypothetical shift in the common law from the late 18th Century to the early 19th Century. To the credit of the collectivist righters viz a viz the 2nd Amendment, they at least provide a somewhat plausible (but not correct) explanation that the 2nd Amendment’s understanding was transformed into an individual right to self-defence in the Jacksonian era. Alito cannot even produce that. I suspect that is because there is not a single shred of historical evidence to proffer evidence these 19th Century treatises departed from the prior 18th Century common understanding. Indeed, the breadth of sources on both sides of the pond Alito simply elects to ignore is staggering. The 19th Century sources supporting Gamble’s argument include; Rawle, Kent, Seargent, Mansfield, Wharton (twice), Russell, McNally, Starkie, Chitty and Deacon. Including pre-ratification treatises, the score for Gamble shifts to 16. The number of treatises that support the sovereign specific understanding Alito advanced? Zero. As Gorsuch notably points out, the Government nor Alito can bring themselves to provide a single treatise that explicitly supports their interpretation of the common law, so are left to nitpick or just flat out ignore.

VII: State Cases

Next, Alito’s majority wades into post ratification State Court cases. Most of the State authority focuses on prosecutions for counterfeiting under State law where the state also had concurrent jurisdiction with the Federal government over the same issue.

The first of these counterfeiting cases is The State v Antonio (1816) 2 Tread. 776., decided by the Constitutional Court of Appeals of South Carolina, supports Gamble’s contention. In relation to double jeopardy, Colcok J said that notwithstanding the concurrent jurisdiction over the issue, it would simply not be possible to try a man twice, firstly, because “comitas gentium” every civilised nation discharges one accused of a crime that has already been tried in a Court of competent jurisdiction. He questioned why, if this notion prevails between strangers (foreign nations), why wouldn’t it apply to those who are “so intimately bound by political ties”? Colock further stated that a guard was contained within the ”7th article of amendments to the Constitution” [4]. The judgement gives us a clear view into the early understanding of the law. Prosecution in a court of competent jurisdiction was a good bar at common law to the prosecution of the same offence, and the 5th Amendment was understood to further supplement that rule. Grimke J in concurrence repeated the rule that “a prisoner could plead autrefois acquit as a good bar to the second prosecution because a determination in a court of competent jurisdiction must be final and conclusive on all courts of concurrent jurisdiction.” He cited Roche for the proposition, further providing confirmation that Roche accurately reflected the common law rule.

The only dissent comes from Nott J. Nott J asserts that a conviction or an acquittal in one court would not be a bar in the Federal courts nor those of the states because each will insist in enforcing its own law to prevent the ousting of that jurisdiction. However, Nott then argues they ought not to have concurrent jurisdiction because it would allow a person to be fined and imprisoned Federally and then hanged for the same offence at the state level, which is both “contrary to the express letter of the constitution and eternal and unerring principles of justice.” The dissent is contradictory and almost agrees and disagrees with Gamble simultaneously. It seems to say that it is not a good bar, but trying someone at a state and Federal twice violates the Constitution. Regardless, the majority holding absolutely supports Gamble and confirms Roche.

Next, the Vermont case State v Randall (1827) WL 676 adds little, merely repeating that the issue of concurrent jurisdiction for criminal offences is illusory rather than real given the court that has the first jurisdiction will retain jurisdiction until a decision is made, and once made will be a bar to the prosecution of the same offence in another jurisdiction. It thus uses an example of theft of items where a person carries stolen items across multiple counties, that person is liable in all, but a successful prosecution in one puts an end to prosecutions in any others.

The Michigan opinion of Harlan v the People (1843) 1 Doug 207, and the Massachusetts opinion of Commonwealth v Fuller (1844) 49 Mass 313, cover much the same ground. Both show that successive prosecutions between the Federal and state governments for the same offence are barred by a successful prosecution in one jurisdiction. Both cases cite Houston v Moore (1820) for the proposition (more on that later). In Fuller the principle is described as a well established principle of law. In Harlan, successive prosecutions are necessarily barred because of the mere existence of concurrent jurisdictions. Although Harlan possibly opens the door by acknowledging that the above would be the case even if it did not come within the express provision of the 5th Amendment, it does not rule on those grounds, and thus certainly does not preclude the 5th Amendment. It does however reflect the common law, which itself influenced the 5th Amendment, notwithstanding that Harlan does not expressly acknowledge that fact. Thus, four of the counterfeiting cases support Gamble’s reading of the double jeopardy clause.

Against this, the majority have two cases. Hendrick v Commonwealth (1834) 5 Leigh 707 is another counterfeiting case from Virginia. Daniel J stated that:

It was argued by the prisoner’s counsel, that the judgment ought to have been arrested, on the ground, that the courts of Virginia ought not to punish, criminally, any forgery committed of the notes, bills, orders or checks, of or upon the bank of the U. States; because this is an offence punishable by the courts of the U. States; and if a state court, which cannot oust the courts of the U. States of their jurisdiction, should proceed, it might happen that a person might be punished twice for the same offence. The answer to this is, that the law of Virginia punishes the forgery, not because it is an offence against the U. States, but because it is an offence against this Commonwealth, committed within its limits; and the punishment of it is designed for the protection of our own citizens.”

However, this argument can be plausibly construed as simply an argument for concurrent jurisdiction rather than a sovereign specific reading. But even if the latter is a better reading of this passage, no authority is cited whatsoever by the judgement, and it remains just dicta against the weight of other authority. The Court also relies on dicta in The State v Brown (1794) 2 N.C. 100, the earliest of the case authorities. The case concerns a person who stole a horse in Virginia and brought it to North Carolina. The Court’s actual holding was that a horse being stolen in one territory or state and brought into another does not make it a felony in the latter state or territory. The Court, using a hypothetical, stated in dicta that a sentence in North Carolina was not pleadable in bar to one in the Ohio territory. Thus an offence made for an offence against North Carolina was no satisfaction for the offence committed against the laws there. The Court further noted that the consequences of trying him in North Carolina would be to allow the man to “be cropped in one, branded and whipped in another, imprisoned in a third, and hanged in a fourth; & all for one and the same offence.” It is because that outcome was so repellent to what the Court considered natural justice that it was held the man could not be prosecuted for that offence in North Carolina because that is not where the felony was committed. As Gorsuch nimbly points out, the principal case Alito relies on uses an understanding of the meaning of offence that Alito rejects. The judges in the original case would have viewed the whole affair in the most disgusted way.

Therefore, the tally for early State Court precedent stands at four supporting Gamble, two opposing him (and barely even that).

VIII: Early SCOTUS Cases

The first two early cases that looked at the double jeopardy clause adopted the understanding that a conviction or an acquittal in a court of competent jurisdiction in one state or nation was a bar to prosecution in another. In US v Furlong (1820), various Americans were indicted for piracy on a British ship and the murder of a British subject thereupon. The Court held that the jurisdiction to hear matters of privacy was universal among all nations. Piracy is an offence against all, punishable by all. The Court stated that “there can  be no doubt that the plea of autrefois acquit would be good in any civilized State, though resting on a prosecution instituted in the Courts of any other civilized State.” At first it would seem quite conclusive that Furlong supports the rule. But the very next lines discuss murder and state that it would not be able to be pleaded in bar in Britain. It would seem the case has unravelled. That is until the Court’s reasoning is properly analysed. The Court said in a footnote that the Courts of the United States do not have the jurisdiction to try murder of a foreign subject onboard a foreign ship. The rationale is provided further down the case, in which it is a crime too abhorrent to come under this universal jurisdiction and hence prosecuting it under the American jurisdiction was not allowed. Essentially the Court found that for the offence of murder of a foreigner of a foreign ship, American Courts did not possess competent jurisdiction, and thus the decision could not be pleaded in bar, which is totally consistent with the common law rule.

Adding to Furlong, there is Houston v Moore (1820). The case concerned a statute of the state of Pennsylvania which criminalised refusal to serve in the militia when called into actual service by the President by non-commissioned officers or privates of that said militia. The penalties proscribed in the statute were those defined in a 1795 Act of Congress. Alito states that this case still supports a separate sovereign reading because it was a peculiar case where the State was being empowered to prosecute someone for a Federal offence, the elements of which were defined at the Federal level. Thus, it is the State and Federal government punishing someone for a Federal crime, something that complies with his reading of the 5th Amendment.  The state offence was ostensibly the same offence as against the general government to be sure, but it was still defined and punished at the State level by a very similarly worded statute. Whether the ratio still supports Alito’s version is questionable. But even giving Alito the benefit of the doubt, as both Ginsburg and Gorsuch make abundantly clear, the rationale and language in Justice Washington’s majority, and Chief Justice Story’s dissent, is very general and certainly not contained to the peculiar facts. Justice Washington’s words were to the effect that if the jurisdiction of two Courts are concurrent, the sentence of either conviction or acquittal would be pleaded as good bar to the prosecution in another. Washington further elaborated that a judgement in a civil case in a State Court of concurrent jurisdiction would be a bar for the same cause of action in the US Circuit Courts. The rationale clearly is not restricted to the peculiar situation Alito suggests, but rather encompasses the traditional common law rule. Joseph Story was even more scathing, declaring double jeapardy to be against the manifest intent of the act of Congress, the principles of common law, and the genius of our free government.” Houston stands with Gamble, not Alito. On the early Supreme Court precedent, two support Gamble, and none support Alito’s reading.

IX: Stare Decisis

So now that it has categorically been proven that the separate sovereign’s exception cannot stand on an Originalist understanding of the Constitution, the majority stands on stare decisis. In this regard, Clarence Thomas’s concurrence gets it right, as we shall see from an analysis of everyone’s favourite Founding Father, Alexander Hamilton’s Federalist No.78. Hamilton could not be clearer; the Constitution is itself the supreme law of the land. He declares:

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

So, there we go. The judges should regard the Constitution in and of itself as the supreme, fundamental law of the land. Judges are only invested with authority to act as an intermediary between the people and their representatives, and to uphold the will of that people as it is expressed in the Constitution’s text by discovering that meaning. Anything beyond that commission is a usurpation of powers undelegated to it, and thus illegitimate. The function of the Courts is not to make incorrect decisions and preserve that erroneous precedent forever despite the Constitution. I would also observe that Federalist 78 pre-supposes the Constitution to have a fixed, intelligible meaning. If it did not, Hamilton’s vision of judicial review would be totally impossible, given that judicial review is a process of discovery, not making the law up as you go along.  Therefore, meaning does not change with the times, unless and until the people themselves through the amendment process contained in Article V ordain to do so. If the Founders wanted a fluid system, they wouldn’t have even bothered with judicial review. Rather, they would have copied the British template of reserving the decisions for the legislature. They chose not to do so with the clear intent that the American Republic would be one of laws, governed within defined, precise limits. This is especially pertinent to civil liberties. Hamilton again makes it clear, by stating:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

Judicial review, the ability to interpret the text of the Constitution, with the text of the statute, and to then declare upon the validity of the latter, was seen as an essential bulwark of the liberties of the people. If the final interpretation was just handed to the very same legislature that promulgated laws contrary to it, the Constitution may as well be an arcane parchment barrier, good for nothing except for 5 minutes taking up the gold-fish level attention spans of school-kids on mandatory excursions. The Founders had sufficient political nous to understand that handing the fox the keys to the hen-house was perhaps not a great idea.  Similarly, judicial review would be totally useless if it meant the Courts abdicated their duty to protect Constitutional liberties by deferring to old, freedom crushing decisions. Originalism is not, as Michael Kirby put it, a “quaint ritual of ancestor worship.” It is the eternal vigilance of the night watchman tasked with guarding the freedoms of the citizenry.

Clarence Thomas’s concurrence for all intents and purposes, was just a rewrite of Federalist 78, perhaps with less of a focus on civil liberties. The mere fact that fidelity to the Constitution represents an extremist view demonstrates just how far the American Republic has fallen. Now, I will admit, stare decisis has some applicability to an originalist. As Thomas notes, if after analysing the text, purpose and historical record there is still sufficient ambiguity as to the correct answer, then stare decisis becomes very important in determining among several possible meanings which is the best. Stare decisis is also essential insofar as common law and equity principles are concerned, but as Clarence Thomas points out, that is because the source and mode of execution of that law differs substantially from that of the Constitution. I would add a further caveat by pointing to reliance interests as a notable exception to these principles. If reliance interests are so great, that reversal by the Courts would ruin the system, the breach of the Constitution may just have to be lived with. For example,  if (and I am not saying these things actually are breaches, I am merely using them as often used hypotheticals) the Constitution as originally intended only allowed  the usage of coins made from gold and silver and not paper money, or barred the creation of a Federal air-force, the reliance interests at stake are so great, and reversal so severe, that it simply cannot be countenanced. John O’Higgins for the Federalist Society also poses the same points in relation to the Commerce Clause, and invokes famous Old Originalist Robert Borke in arguing that it would be highly undesirable to undo all that precedent all at once. I do not think this caveat opens up a can of worms; the reliance interests that would suffice to clear this bar are very, very high. The rule for stare decisis is neatly summed up by Thomas, namely that stare decisis should not be invoked when precedent is clearly erroneous.

Kavanaugh, during oral argument, invoked stare decisis being founded in Federalist 78, and that is somewhat true. Hamilton does observe that the reason judges need permanent tenure is because specialist knowledge and experience is necessary to understand the “voluminous volumes of cases” which are the “inconveniences connected with free government” and hence “indispensable that judges be bound by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” What Hamilton is referring to is the obvious necessity of stare decisis in the context of resolving disputes through equity, common law and perhaps statute at a Federal level [5]. Recognising the rich importance of stare decisis in a common law system does not entrench those principles in the very different field of Constitutional interpretation, nor suddenly nullify what Hamilton had to say all of five or six paragraphs beforehand.

But let’s be even clearer, stare decisis is most often used as a political weapon, a smokescreen to cover up the insidious transfer of power from the people to the black-robed oligarchy. Stare decisis is also just simply ignored when it favours a supported position. Justice Breyer for instance recently sounded the alarm over Conservatives overruling precedent in Franchise Tax Board of California v. Hyatt (2019), but was more than happy to overrule years of precedent in Herrera v Wyoming (2019). If stare decisis was the key determinant we would still have Plessy v Ferguson (segregation) and Korematsu (internment of Japanese Americans). I just have to wonder how many liberals will rush out of the woodwork to defend Oliver Wendall Holmes’ infamous decision in Buck v Bell (1927), that allows the sterilisation of people against their will without due process of law. None? Most definitely. Let’s be real, the loudest invokers of stare decisis often do so because it supports their favoured position, not because it is a genuinely objective force to shape law. As soon as precedent is unfavourable, crickets. That goes for the Conservatives that invoked stare decisis too to uphold separate sovereigns, when they overturned precedent again in Knick v. Township of Scott, Pennsylvania (2019) and Hyatt.

X: History of Separate Sovereigns and Implications for Today

So what history did the Court uphold? Well to start, separate sovereigns was not by Constitutional design, it was a very grotesque accident of convenience, and oh boy is the history ugly. The doctrine first started in Fox v Ohio (1847), and continued in Moore v Illinois (1852) , in which the appellant lawyer argued that the traditionally understood rule was problematic because it would cause a race to the courthouse where a prosecution in one jurisdiction would bar another, and this would lead to the States ousting the Federal jurisdiction. Although Fox was yet another counterfeiting case, the concern was primarily over slavery, namely that States would seek to subvert the Fugitive Slave Act, and either acquit, pardon or lightly punish offenders, and therefore oust the Federal Governments jurisdiction. This was nullification in action. The issue was then addressed squarely by Moore which was a slavery case, and it cemented the doctrine into the law.  The separate sovereigns doctrine was integral to the preservation of the institution of slavery. The Fugitive Slave Act 1850 was one of the most divisive and ugly pieces of legislation in American history, and directly contributed to the Civil War. The doctrine invoked yet again as ratio in US v Lanza (1922), but this time it was the roaring 20s and the Federal Government’s problem was States potentially nullifying the Volstead Act (prohibition), so they again, for totally policy reasons (and bad ones at that) found a way. This is compounded by Lanza’s council being pathologically incompetent to the point that the United States were effectively the only party adequately represented at trial. Is this history really worth defending? Of course not, but to quote Dr Malcolm from Jurassic Park (and I may have slightly misheard the line) “SCOTUS finds a way.”

The implications for the present day are also by and large very unpleasant. While it is true that the separate sovereigns doctrine was used to prosecute violators of African American Civil Rights in non-sympathetic states, such as the officers involved in the Rodney King beating, several things must be noted. Firstly, the Blockburger rules make invoking separate sovereigns as a necessity all but irrelevant for Federal civil rights cases, as Justice Ginsburg indicated at oral argument. But even if it was, and this may be a very hard pill to swallow, to an extent civil rights must be afforded to people, even those we despise, even where that might result in a temporary injustice to defray even greater injustice down the road. Consider that for every civil rights case that gets successfully litigated under the doctrine (and could not be litigated even under Blockburger), minorities are open to being prosecuted at increasing rates for violations of state and Federal laws criminalising non-violent offending, and for offences very much like those Terrence Martinez Gamble are languishing in jail for. It was suggested by the government that if Gamble won his case, the Federal government might find it much harder going after marijuana users and dealers. I would weep if that were the case! Indeed, at present there are 100 dual prosecutions per year. Conservatives can then hardly complain of the Behemoth Washington state, one which the Court helped create through expansive, non-originalist interpretations of Federal powers thathave  now allowed the Federal government to intercede itself into the lives of its citizenry in a way unimaginable to the Founding generation. While Thomas was wrong on the merits of the case, he was most certainly right that the Framers would have found it almost inconceivable the Federal government could, with the blessing of State authorities, even be able to dually prosecute 100 people, let alone have such far reaching authority into areas presumed to remain exclusively under State jurisdiction. Perhaps it can be said that 100 double prosecutions per year is not significant (although I think those incarcerated under both sovereigns may beg to differ), but that is only because of Federal largesse. If the Federal government so chose, many thousands more could be prosecuted each and every year, and frankly, how the political winds blow from one Administration to the next is not a solid argument to cement constitutional doctrine, nor should fundamental civil liberties, of all things, be dependent on it.

XI: Conclusion

So far, I have only lambasted the Conservative bloc, but the knowledgeable reader would note the decision outcome was 7-2, with only Ruth Bader Ginsburg dissenting from the Liberal bloc, the rest of whom also joined Alito’s majority.  That is disappointing, too, and in an ideal world everyone would be an Originalist and decide cases using that philosophy. But realistically, we don’t live in that world, and it must be taken as a given that those on the completely opposite side of politics will have a completely different Constitutional interpretive philosophy and benchmark themselves differently. While I think they also failed a living constitutionalist benchmark, that is an article for someone else for another time. Living Constitutionalists are not something Conservatives can control, but Conservatives can control who they nominate to the Court, and must generally demand better.  The media’s reaction was even more pathetically predictable, with MSNBC, CNN, the Washington Post, the New York Times and Fox News running clickbaity headlines about the Supreme Court striking a blow to President Trump as if  every decision can simply be distilled down to how to best #resist Mr-Russian- Agent- Bad-Orange-Man-Donald-Drumpf SNL style! This just goes to show how pathetic the American political soap opera really is. Returning back to the Conservatives, in Gamble they delivered a decision not justifiable by the text, drafting or authorial intention, English common law, treatises or early State court and Supreme Court decisions. They delivered a decision which will enshrine great injustice and deprive liberty from many future generations. It was a decision so bad as to be almost unbearable for a free people.

Footnotes

[1] I need not delve into the allegations here as I am sure the reader with all the facts available can judge for themselves and, further, it really isn’t very relevant to the point anyway.

[2] The Murders Act is not the real name of the Act, only the moniker the American colonists referred to the Act, as one of five laws referred to as the Intolerable Acts.

[3] Trover is a civil claim for conversion of property.

[4] When Madison proposed the amendments to the House there were more than the 10 we know. Madison’s proposals were whittled down to 12 by Congress, of which 10 were approved and ratified by the states into what we now call the Bill of Rights. The first approved by Congress were not approved bar the second proposal which would eventually become the 27th Amendment, thus explaining why Colcok referenced the 5th Amendment as the 7th.

[5] It must not be forgotten that Federalist 78 talked about the entire Federal judicial project, not just Constitutional law.

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