Double Jeopardy

09.27.2018 - By Constitution Thursday

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In recent days, we have watched the debate over the nomination of a Supreme Court Justice. While the debate rages around things such as abortion, gay rights, women's rights, and so forth, the single fact remains that these things are rarely the meat and potatoes of what the Supreme Court does. Almost never are those things noticed until after the fact. indeed, very few (if any) questions of any nominee relate to them or to the understanding of how those things might end up affecting our day to day lives.

In 1820, a Pennsylvania man was found guilty of violating a State Law that required him to report for duty as a part of the militia during the War of 1812. He had refused service in the Pennsylvania Militia, and now it was time for the state to lower the boom. But the Feds also wanted their pound of flesh, because they believed that the Congress has powers over the Militia, and this man has spurned those laws. The Court ruled that the 5th Amendment didn't apply because (a) there was no incorporation and (b) the Constitution had not limited states from passing laws to punish people for failing to show up for the Militia and (c) Congress had passed such laws.

Back in 1922, a man was found guilty in the State of Washington of violating the state's prohibition against the production and distribution of alcoholic beverages. Then the fed stepped in and after he was convicted charged him with violations of the Volstead Act, the national law against the production and distribution of alcoholic beverages. He protested, claiming that under the 5th Amendment this amounted to double jeopardy. The Court said that there were two systems of sovereignty, State and Federal. As a citizen, we voluntarily accept that we live under both sovereigns and therefore we can be punished by both for the same act, just not twice by either.

And in 2015, a man was stopped for having a headlamp out in his car. The officer who stopped him smelled marijuana and found the driver was a convicted felon, so he searched the car, finding drugs and a 9mm handgun. The man (Gamble) does not deny this. The state convicted him of being a felon in possession of a handgun, and then the Feds also charged him with the same crime. And the Supreme Court has been asked, once again, to consider whether or not the Dual Sovereignty Doctrine is Constitutional.

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