Gamble v. United States

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(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GAMBLE v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 17–646. Argued December 6, 2018—Decided June 17, 2019

Petitioner Gamble pleaded guilty to a charge of violating Alabama’s

felon-in-possession-of-a-firearm statute. Federal prosecutors then

indicted him for the same instance of possession under federal law.

Gamble moved to dismiss, arguing that the federal indictment was

for “the same offence” as the one at issue in his state conviction, thus

exposing him to double jeopardy under the Fifth Amendment. The

District Court denied this motion, invoking the dual-sovereignty doc-

trine, according to which two offenses “are not the ‘same offence’ ” for

double jeopardy purposes if “prosecuted by different sovereigns,”

Heath v. Alabama, 474 U. S. 82, 92. Gamble pleaded guilty to the

federal offense but appealed on double jeopardy grounds. The Elev-

enth Circuit affirmed.

Held: This Court declines to overturn the longstanding dual-

sovereignty doctrine. Pp. 3–31.

(a) The dual-sovereignty doctrine is not an exception to the double

jeopardy right but follows from the Fifth Amendment’s text. The

Double Jeopardy Clause protects individuals from being “twice put in

jeopardy” “for the same offence.” As originally understood, an “of-

fence” is defined by a law, and each law is defined by a sovereign.

Thus, where there are two sovereigns, there are two laws and two “of-

fences.” Gamble attempts to show from the Clause’s drafting history

that Congress must have intended to bar successive prosecutions re-

gardless of the sovereign bringing the charge. But even if conjectures

about subjective goals were allowed to inform this Court’s reading of

the text, the Government’s contrary arguments on that score would

prevail. Pp. 3–5.

(b) This Court’s cases reflect the sovereign-specific reading of the

phrase “same offence.” Three antebellum cases—Fox v. Ohio, 5 How.

2 GAMBLE v. UNITED STATES

Syllabus

410; United States v. Marigold, 9 How. 560; and Moore v. Illinois, 14

How. 13—laid the foundation that a crime against two sovereigns

constitutes two offenses because each sovereign has an interest to

vindicate. Seventy years later, that foundation was cemented in

United States v. Lanza, 260 U. S. 377, which upheld a federal prose-

cution that followed one by a State. This Court applied that prece-

dent for decades until 1959, when it refused two requests to reverse

course, see Bartkus v. Illinois, 359 U. S. 121; Abbate v. United States,

359 U. S. 187, and it has reinforced that precedent over the following

six decades, see, e.g., Puerto Rico v. Sanchez Valle, 579 U. S. ___.

Pp. 5–10.

(c) Gamble claims that this Court’s precedent contradicts the com-

mon-law rights that the Double Jeopardy Clause was originally un-

derstood to engraft onto the Constitution, pointing to English and

American cases and treatises. A departure from precedent, however,

“demands special justification,” Arizona v. Rumsey, 467 U. S. 203,

212, and Gamble’s historical evidence is too feeble to break the chain

of precedent linking dozens of cases over 170 years. This Court has

previously concluded that the probative value of early English deci-

sions on which Gamble relies was “dubious” due to “confused and in-

adequate reporting.” Bartkus, 359 U. S., at 128, n. 9. On closer in-

spection, that assessment has proven accurate; the passing years

have not made those early cases any clearer or more valuable. Nor

do the treatises cited by Gamble come close to settling the historical

question with enough force to meet his particular burden. His posi-

tion is also not supported by state court cases, which are equivocal at

best. Less useful still are the two federal cases cited by Gamble—

Houston v. Moore, 5 Wheat. 1, which squares with the dual-

sovereignty doctrine, and United States v. Furlong, 5 Wheat. 184,

which actually supports it. Pp. 11–28.

(d) Gamble’s attempts to blunt the force of stare decisis here do not

succeed. He contends that the recognition of the Double Jeopardy

Clause’s incorporation against the States washed away any theoreti-

cal foundation for the dual-sovereignty rule. But this rule rests on

the fact that only same-sovereign prosecutions can involve the “same

offence,” and that is just as true after incorporation as before. Gam-

ble also argues that the proliferation of federal criminal laws has

raised the risk of successive prosecutions under state and federal law

for the same criminal conduct, thus compounding the harm inflicted

by precedent. But this objection obviously assumes that precedent

was erroneous from the start, so it is only as strong as the historical

arguments found wanting. In any case, eliminating the dual-

sovereignty rule would do little to trim the reach of federal criminal

law or prevent many successive state and federal prosecutions for the

Cite as: 587 U. S. ____ (2019) 3

Syllabus

same criminal conduct, see Blockburger v. United States, 284 U. S.

299. Pp. 28–31.

694 Fed. Appx. 750, affirmed.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and THOMAS, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined.

THOMAS, J., filed a concurring opinion. GINSBURG, J., and GORSUCH, J.,

filed dissenting opinions.

Cite as: 587 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–646

_________________

TERANCE MARTEZ GAMBLE, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 17, 2019]

JUSTICE ALITO delivered the opinion of the Court.

We consider in this case whether to overrule a

longstanding interpretation of the Double Jeopardy Clause

of the Fifth Amendment. That Clause provides that no

person may be “twice put in jeopardy” “for the same of-

fence.” Our double jeopardy case law is complex, but at its

core, the Clause means that those acquitted or convicted of

a particular “offence” cannot be tried a second time for the

same “offence.” But what does the Clause mean by an

“offence”?

We have long held that a crime under one sovereign’s

laws is not “the same offence” as a crime under the laws of

another sovereign. Under this “dual-sovereignty” doc-

trine, a State may prosecute a defendant under state law

even if the Federal Government has prosecuted him for

the same conduct under a federal statute.

Or the reverse may happen, as it did here. Terance

Gamble, convicted by Alabama for possessing a firearm as

a felon, now faces prosecution by the United States under

its own felon-in-possession law. Attacking this second

prosecution on double jeopardy grounds, Gamble asks us

2 GAMBLE v. UNITED STATES

Opinion of the Court

to overrule the dual-sovereignty doctrine. He contends

that it departs from the founding-era understanding of the

right enshrined by the Double Jeopardy Clause. But the

historical evidence assembled by Gamble is feeble; point-

ing the other way are the Clause’s text, other historical

evidence, and 170 years of precedent. Today we affirm

that precedent, and with it the decision below.

I

In November 2015, a local police officer in Mobile, Ala-

bama, pulled Gamble over for a damaged headlight.

Smelling marijuana, the officer searched Gamble’s car,

where he found a loaded 9-mm handgun. Since Gamble

had been convicted of second-degree robbery, his posses-

sion of the handgun violated an Alabama law providing

that no one convicted of “a crime of violence” “shall own a

firearm or have one in his or her possession.” Ala. Code

§13A–11–72(a) (2015); see §13A–11–70(2) (defining “crime

of violence” to include robbery). After Gamble pleaded

guilty to this state offense, federal prosecutors indicted

him for the same instance of possession under a federal

law—one forbidding those convicted of “a crime punishable

by imprisonment for a term exceeding one year . . . to ship

or transport in interstate or foreign commerce, or possess

in or affecting commerce, any firearm or ammunition.” 18

U. S. C. §922(g)(1).

Gamble moved to dismiss on one ground: The federal

indictment was for “the same offence” as the one at issue

in his state conviction and thus exposed him to double

jeopardy. But because this Court has long held that two

offenses “are not the ‘same offence’ ” for double jeopardy

purposes if “prosecuted by different sovereigns,” Heath v.

Alabama, 474 U. S. 82, 92 (1985), the District Court de-

nied Gamble’s motion to dismiss. Gamble then pleaded

guilty to the federal offense while preserving his right to

challenge the denial of his motion to dismiss on double

Cite as: 587 U. S. ____ (2019) 3

Opinion of the Court

jeopardy grounds. But on appeal the Eleventh Circuit

affirmed, citing the dual-sovereignty doctrine. 694 Fed.

Appx. 750 (2017). We granted certiorari to determine

whether to overturn that doctrine.1 585 U. S. ___ (2018).

II

Gamble contends that the Double Jeopardy Clause must

forbid successive prosecutions by different sovereigns

because that is what the founding-era common law did.

But before turning to that historical claim, see Part III

infra, we review the Clause’s text and some of the cases

Gamble asks us to overturn.

A

We start with the text of the Fifth Amendment. Al-

though the dual-sovereignty rule is often dubbed an “excep-

tion” to the double jeopardy right, it is not an exception at

all. On the contrary, it follows from the text that defines

that right in the first place. “[T]he language of the Clause

. . . protects individuals from being twice put in jeopardy

‘for the same offence,’ not for the same conduct or actions,”

Grady v. Corbin, 495 U. S. 508, 529 (1990), as Justice

Scalia wrote in a soon-vindicated dissent, see United

States v. Dixon, 509 U. S. 688 (1993) (overruling Grady).

And the term “ ‘[o]ffence’ was commonly understood in

1791 to mean ‘transgression,’ that is, ‘the Violation or

Breaking of a Law.’ ” Grady, 495 U. S., at 529 (Scalia, J.,

dissenting) (quoting Dictionarium Britannicum (Bailey ed.

1730)). See also 2 R. Burn & J. Burn, A New Law Diction-

ary 167 (1792) (“OFFENCE, is an act committed against

law, or omitted where the law requires it”). As originally

——————

1 In addressing that question, we follow the parties’ lead and assume,

without deciding, that the state and federal offenses at issue here

satisfy the other criteria for being the “same offence” under our double

jeopardy precedent. See Blockburger v. United States, 284 U. S. 299,

304 (1932).

4 GAMBLE v. UNITED STATES

Opinion of the Court

understood, then, an “offence” is defined by a law, and

each law is defined by a sovereign. So where there are two

sovereigns, there are two laws, and two “offences.” See

Grady, 495 U. S., at 529 (Scalia, J., dissenting) (“If the

same conduct violates two (or more) laws, then each of-

fense may be separately prosecuted”); Moore v. Illinois, 14

How. 13, 17 (1852) (“The constitutional provision is not,

that no person shall be subject, for the same act, to be

twice put in jeopardy of life or limb; but for the same

offence, the same violation of law, no person’s life or limb

shall be twice put in jeopardy” (emphasis added)).

Faced with this reading, Gamble falls back on an epi-

sode from the Double Jeopardy Clause’s drafting history.2

The first Congress, working on an earlier draft that would

have banned “ ‘more than one trial or one punishment for

the same offence,’ ” voted down a proposal to add “ ‘by any

law of the United States.’ ” 1 Annals of Cong. 753 (1789).

In rejecting this addition, Gamble surmises, Congress

must have intended to bar successive prosecutions regard-

less of the sovereign bringing the charge.

Even if that inference were justified—something that

the Government disputes—it would count for little. The

private intent behind a drafter’s rejection of one version of

a text is shoddy evidence of the public meaning of an

altogether different text. Cf. United States v. Craft, 535

——————

2 Gamble also cites founding-era uses of the word “offence” that are

not tied to violations of a sovereign’s laws, but the examples are not

very telling. Some, for instance, play on the unremarkable fact that at

the founding, “offence” could take on a different sense in nonlegal

settings, much as “offense” does today. In this vein, Gamble cites a

19th-century dictionary defining “offense” broadly as “any transgres-

sion of law, divine or human; a crime; sin; act of wickedness or omission

of duty.” 2 N. Webster, An American Dictionary of the English Lan-

guage (1828). But the question is what “offence” meant in legal con-

texts. See Moore v. Illinois, 14 How. 13, 19 (1852) (“An offence, in its

legal signification, means the transgression of a law. . .” (emphasis

added)).

Cite as: 587 U. S. ____ (2019) 5

Opinion of the Court

U. S. 274, 287 (2002) (“[F]ailed legislative proposals are a

particularly dangerous ground on which to rest an inter-

pretation of a prior statute” (internal quotation marks

omitted)).

Besides, if we allowed conjectures about purpose to

inform our reading of the text, the Government’s conjec-

ture would prevail. The Government notes that the Decla-

ration of Independence denounced King George III for

“protecting [British troops] by a mock Trial, from punish-

ment for any Murders which they should commit on the

Inhabitants of these States.” ¶ 17. The Declaration was

alluding to “the so-called Murderers’ Act, passed by Par-

liament after the Boston Massacre,” Amar, Sixth Amend-

ment First Principles, 84 Geo. L. J. 641, 687, n. 181 (1996),

a law that allowed British officials indicted for murder in

America to be “ ‘tried in England, beyond the control of

local juries.’ ” Ibid. (quoting J. Blum et al., The National

Experience 95 (3d ed. 1973)). “During the late colonial

period, Americans strongly objected to . . . [t]his circum-

vention of the judgment of the victimized community.”

Amar, 84 Geo. L. Rev., at 687, n. 181. Yet on Gamble’s

reading, the same Founders who quite literally revolted

against the use of acquittals abroad to bar criminal prose-

cutions here would soon give us an Amendment allow-

ing foreign acquittals to spare domestic criminals. We

doubt it.

We see no reason to abandon the sovereign-specific

reading of the phrase “same offence,” from which the dual-

sovereignty rule immediately follows.

B

Our cases reflect the same reading. A close look at them

reveals how fidelity to the Double Jeopardy Clause’s text

does more than honor the formal difference between two

distinct criminal codes. It honors the substantive differ-

ences between the interests that two sovereigns can have

6 GAMBLE v. UNITED STATES

Opinion of the Court

in punishing the same act.

The question of successive federal and state prosecu-

tions arose in three antebellum cases implying and then

spelling out the dual-sovereignty doctrine. The first, Fox

v. Ohio, 5 How. 410 (1847), involved an Ohio prosecution

for the passing of counterfeit coins. The defendant argued

that since Congress can punish counterfeiting, the States

must be barred from doing so, or else a person could face

two trials for the same offense, contrary to the Fifth

Amendment. We rejected the defendant’s premise that

under the Double Jeopardy Clause “offences falling within

the competency of different authorities to restrain or

punish them would not properly be subjected to the conse-

quences which those authorities might ordain and affix to

their perpetration.” Id., at 435. Indeed, we observed, the

nature of the crime or its effects on “public safety” might

well “deman[d]” separate prosecutions. Ibid. Generalizing

from this point, we declared in a second case that “the

same act might, as to its character and tendencies, and the

consequences it involved, constitute an offence against

both the State and Federal governments, and might draw

to its commission the penalties denounced by either, as

appropriate to its character in reference to each.” United

States v. Marigold, 9 How. 560, 569 (1850).

A third antebellum case, Moore v. Illinois, 14 How. 13,

expanded on this concern for the different interests of

separate sovereigns, after tracing it to the text in the

manner set forth above. Recalling that the Fifth Amend-

ment prohibits double jeopardy not “for the same ac[t]” but

“for the same offence,” and that “[a]n offence, in its legal

signification, means the transgression of a law,” id., at 19,

we drew the now-familiar inference: A single act “may be

an offence or transgression of the laws of ” two sovereigns,

and hence punishable by both, id., at 20. Then we gave

color to this abstract principle—and to the diverse inter-

ests it might vindicate—with an example. An assault on a

Cite as: 587 U. S. ____ (2019) 7

Opinion of the Court

United States marshal, we said, would offend against the

Nation and a State: the first by “hindering” the “execution

of legal process,” and the second by “breach[ing]” the

“peace of the State.” Ibid. That duality of harm explains

how “one act” could constitute “two offences, for each of

which [the offender] is justly punishable.” Ibid.

This principle comes into still sharper relief when we

consider a prosecution in this country for crimes commit-

ted abroad. If, as Gamble suggests, only one sovereign

may prosecute for a single act, no American court—state

or federal—could prosecute conduct already tried in a

foreign court. Imagine, for example, that a U. S. national

has been murdered in another country. That country

could rightfully seek to punish the killer for committing an

act of violence within its territory. The foreign country’s

interest lies in protecting the peace in that territory rather

than protecting the American specifically. But the United

States looks at the same conduct and sees an act of vio-

lence against one of its nationals, a person under the

particular protection of its laws. The murder of a U. S.

national is an offense to the United States as much as it is

to the country where the murder occurred and to which

the victim is a stranger. That is why the killing of an

American abroad is a federal offense that can be prose-

cuted in our courts, see 18 U. S. C. §2332(a)(1), and

why customary international law allows this exercise of

jurisdiction.

There are other reasons not to offload all prosecutions

for crimes involving Americans abroad. We may lack

confidence in the competence or honesty of the other coun-

try’s legal system. Less cynically, we may think that

special protection for U. S. nationals serves key national

interests related to security, trade, commerce, or scholar-

ship. Such interests might also give us a stake in punish-

ing crimes committed by U. S. nationals abroad—

especially crimes that might do harm to our national

8 GAMBLE v. UNITED STATES

Opinion of the Court

security or foreign relations. See, e.g., §2332a(b) (bomb-

ings). These examples reinforce the foundation laid in our

antebellum cases: that a crime against two sovereigns

constitutes two offenses because each sovereign has an

interest to vindicate.

We cemented that foundation 70 years after the last of

those antebellum cases, in a decision upholding a federal

prosecution that followed one by a State. See United

States v. Lanza, 260 U. S. 377, 382 (1922) (“[A]n act de-

nounced as a crime by both national and state sovereign-

ties is an offense against the peace and dignity of both and

may be punished by each”). And for decades more, we

applied our precedent without qualm or quibble. See, e.g.,

Screws v. United States, 325 U. S. 91 (1945); Jerome v.

United States, 318 U. S. 101 (1943); Puerto Rico v. Shell

Co. (P. R.), Ltd., 302 U. S. 253 (1937); Westfall v. United

States, 274 U. S. 256 (1927); Hebert v. Louisiana, 272 U. S.

312 (1926). When petitioners in 1959 asked us twice to

reverse course, we twice refused, finding “[n]o considera-

tion or persuasive reason not presented to the Court in the

prior cases” for disturbing our “firmly established” doc-

trine. Abbate v. United States, 359 U. S. 187, 195; see also

Bartkus v. Illinois, 359 U. S. 121. And then we went on

enforcing it, adding another six decades of cases to the

doctrine’s history. See, e.g., Puerto Rico v. Sánchez Valle,

579 U. S. ___ (2016); Heath v. Alabama, 474 U. S. 82

(1985); United States v. Wheeler, 435 U. S. 313 (1978);

Rinaldi v. United States, 434 U. S. 22 (1977) (per curiam).

C

We briefly address two objections to this analysis.

First, the dissents contend that our dual-sovereignty

rule errs in treating the Federal and State Governments as

two separate sovereigns when in fact sovereignty belongs

to the people. See post, at 3 (opinion of GINSBURG, J.);

post, at 7 (opinion of GORSUCH, J.). This argument is

Cite as: 587 U. S. ____ (2019) 9

Opinion of the Court

based on a non sequitur. Yes, our Constitution rests on

the principle that the people are sovereign, but that does

not mean that they have conferred all the attributes of

sovereignty on a single government. Instead, the people,

by adopting the Constitution, “‘split the atom of sovereignty.’”

Alden v. Maine, 527 U. S. 706, 751 (1999) (alteration

omitted) (internal quotation marks and citation omitted).

As we explained last Term:

“When the original States declared their independ-

ence, they claimed the powers inherent in sovereignty

. . . . The Constitution limited but did not abolish the

sovereign powers of the States, which retained ‘a re-

siduary and inviolable sovereignty.’ The Federalist

No. 39, p. 245 (C. Rossiter ed. 1961). Thus, both the

Federal Government and the States wield sovereign

powers, and that is why our system of government is

said to be one of ‘dual sovereignty.’ Gregory v. Ash-

croft, 501 U. S. 452, 457 (1991).” Murphy v. National

Collegiate Athletic Assn., 584 U. S. ___, ___ (2018)

(slip op., at 14).

It is true that the Republic is “ ‘ONE WHOLE,’ ” post, at 3

(opinion of GINSBURG, J.) (quoting The Federalist No. 82,

p. 493 (C. Rossiter ed. 1961) (A. Hamilton)); accord, post,

at 7 (opinion of GORSUCH, J.). But there is a difference

between the whole and a single part, and that difference

underlies decisions as foundational to our legal system as

McCulloch v. Maryland, 4 Wheat. 316 (1819). There, in

terms so directly relevant as to seem presciently tailored

to answer this very objection, Chief Justice Marshall

distinguished precisely between “the people of a State”

and “[t]he people of all the States,” id., at 428, 435; be-

tween the “sovereignty which the people of a single state

possess” and the sovereign powers “conferred by the peo-

ple of the United States on the government of the Union,”

id., at 429–430; and thus between “the action of a part”

10 GAMBLE v. UNITED STATES

Opinion of the Court

and “the action of the whole,” id., at 435–436. In short,

McCulloch’s famous holding that a State may not tax the

national bank rested on a recognition that the States and

the Nation have different “interests” and “right[s].” Id.,

431, 436. One strains to imagine a clearer statement of

the premises of our dual-sovereignty rule, or a more au-

thoritative source. The United States is a federal republic;

it is not, contrary to JUSTICE GORSUCH’s suggestion, post,

at 10–11, a unitary state like the United Kingdom.

Gamble and the dissents lodge a second objection to this

line of reasoning. They suggest that because the division

of federal and state power was meant to promote liberty, it

cannot support a rule that exposes Gamble to a second

sentence. See post, at 3–4 (opinion of GINSBURG, J.); post,

at 8–9 (opinion of GORSUCH, J.). This argument funda-

mentally misunderstands the governmental structure

established by our Constitution. Our federal system

advances individual liberty in many ways. Among other

things, it limits the powers of the Federal Government

and protects certain basic liberties from infringement.

But because the powers of the Federal Government and

the States often overlap, allowing both to regulate often

results in two layers of regulation. Taxation is an example

that comes immediately to mind. It is also not at all un-

common for the Federal Government to permit activities

that a State chooses to forbid or heavily restrict—for

example, gambling and the sale of alcohol. And a State

may choose to legalize an activity that federal law prohib-

its, such as the sale of marijuana. So while our system of

federalism is fundamental to the protection of liberty, it

does not always maximize individual liberty at the ex-

pense of other interests. And it is thus quite extraordi-

nary to say that the venerable dual-sovereignty doctrine

represents a “ ‘desecrat[ion]’ ” of federalism. Post, at 9

(opinion of GORSUCH, J.).

Cite as: 587 U. S. ____ (2019) 11

Opinion of the Court

III

Gamble claims that our precedent contradicts the common-

law rights that the Double Jeopardy Clause was

originally understood to engraft onto the Constitution—

rights stemming from the “common-law pleas of auterfoits

acquit [former acquittal] and auterfoits convict [former

conviction].” Grady, 495 U. S., at 530 (Scalia, J., dissent-

ing). These pleas were treated as “reason[s] why the

prisoner ought not to answer [an indictment] at all, nor

put himself upon his trial for the crime alleged.” 4 W.

Blackstone, Commentaries on the Laws of England 335

(1773) (Blackstone). Gamble argues that those who rati-

fied the Fifth Amendment understood these common-law

principles (which the Amendment constitutionalized) to

bar a domestic prosecution following one by a foreign

nation. For support, he appeals to early English and

American cases and treatises. We have highlighted one

hurdle to Gamble’s reading: the sovereign-specific original

meaning of “offence.” But the doctrine of stare decisis is

another obstacle.

Stare decisis “promotes the evenhanded, predictable,

and consistent development of legal principles, fosters

reliance on judicial decisions, and contributes to the actual

and perceived integrity of the judicial process.” Payne v.

Tennessee, 501 U. S. 808, 827 (1991). Of course, it is also

important to be right, especially on constitutional matters,

where Congress cannot override our errors by ordinary

legislation. But even in constitutional cases, a departure

from precedent “demands special justification.” Arizona v.

Rumsey, 467 U. S. 203, 212 (1984). This means that some-

thing more than “ambiguous historical evidence” is re-

quired before we will “flatly overrule a number of major

decisions of this Court.” Welch v. Texas Dept. of Highways

and Public Transp., 483 U. S. 468, 479 (1987). And the

strength of the case for adhering to such decisions grows

in proportion to their “antiquity.” Montejo v. Louisiana,

12 GAMBLE v. UNITED STATES

Opinion of the Court

556 U. S. 778, 792 (2009). Here, as noted, Gamble’s his-

torical arguments must overcome numerous “major deci-

sions of this Court” spanning 170 years. In light of these

factors, Gamble’s historical evidence must, at a minimum,

be better than middling.

And it is not. The English cases are a muddle. Trea-

tises offer spotty support. And early state and federal cases

are by turns equivocal and downright harmful to Gamble’s

position. All told, this evidence does not establish that

those who ratified the Fifth Amendment took it to bar

successive prosecutions under different sovereigns’ laws—

much less do so with enough force to break a chain of

precedent linking dozens of cases over 170 years.

A

Gamble’s core claim is that early English cases reflect

an established common-law rule barring domestic prosecu-

tion following a prosecution for the same act under a

different sovereign’s laws. But from the very dawn of the

common law in medieval England until the adoption of the

Fifth Amendment in 1791, there is not one reported deci-

sion barring a prosecution based on a prior trial under

foreign law. We repeat: Gamble has not cited and we have

not found a single pre-Fifth Amendment case in which a

foreign acquittal or conviction barred a second trial in a

British or American court. Given this void, Gamble faces

a considerable challenge in convincing us that the Fifth

Amendment was originally understood to establish such a

bar.

Attempting to show that such a bar was available,

Gamble points to five early English decisions for which we

have case reports. We will examine these in some detail,

but we note at the outset that they play only a secondary

role for Gamble.

The foundation of his argument is a decision for which

we have no case report: the prosecution in England in

Cite as: 587 U. S. ____ (2019) 13

Opinion of the Court

1677 of a man named Hutchinson. (We have a report of a

decision denying Hutchinson bail but no report of his

trial.) As told by Gamble, Hutchinson, having been tried

and acquitted in a foreign court for a murder committed

abroad, was accused of the same homicide in an English

tribunal, but the English court held that the foreign prose-

cution barred retrial.

Everything for Gamble stems from this one unreported

decision. To the extent that the cases he cites provide any

support for his argument—and for the most part, they do

not—those cases purport to take their cue from the

Hutchinson episode; the same is true of the treatises on

which Gamble relies.

So what evidence do we have about what actually hap-

pened to Hutchinson? The most direct evidence is a report

of his application for bail before the Court of King’s Bench.

The report spans all of one sentence:

“On Habeas Corpus it appeared the Defendant was

committed to Newgate on suspicion of Murder in Por-

tugal, which by Mr. Attorny 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).

From this report, all that we can tell about the court’s

thinking is that it found no convincing reason to grant

bail, as was typical in murder cases.3 The rest of the

report concerns claims by an attorney. We are told that he

contested the jurisdiction of the commission before which

Hutchinson was to be tried, apparently a special commis-

sion that would have issued pursuant to a statute enacted

under Henry VIII.4 The commission lacked jurisdiction,

——————

3 See J. Beattie, Crime and the Courts in England: 1660–1800, pp.

281–282 (1986).

4 Although this Act reached conduct committed “out of the King Maj-

14 GAMBLE v. UNITED STATES

Opinion of the Court

the attorney seemed to suggest, because the crime had

occurred in Portugal and thus “out of the Kings Domin-

ions.” The attorney claimed that jurisdiction lay instead

with “a Constable and Marshal”—an apparent reference to

the High Court of Chivalry, which dealt with treason and

murder committed abroad.5 But what, if anything, did the

King’s Bench make of the attorney’s jurisdictional claims?

And more to the point, what happened after bail was

denied? The bail report does not say.

If Hutchinson did ultimately appear before the Court of

Chivalry—and if that court accepted a plea of prior acquit-

tal in Portugal—this would be paltry evidence of any

common-law principle, which is what Gamble cites

Hutchinson to establish. After all, the High Court of

Chivalry was a civil-law court prohibited from proceeding

under the common law (unlike every other English court

of the time save Admiralty). 8 Ric. 2 ch. 5; see also Squibb

162; id., at xxv–xxvi (“The essential distinction between

the Court of Chivalry and other courts is . . . that it admin-

isters justice in relation to those military matters which

are not governed by the common law”). Nor would it be

any surprise that we have no report of the proceeding; in

fact, “[t]here is no report of a case in which a judge of the

Court [of Chivalry] has set out the reasons for his decision

earlier than the [20th] century.” Id., at 162.

In the end, we have only two early accounts from judges

of what finally became of Hutchinson, and both are indi-

rect and shaky. First, they appear in the reports of cases

decided in the Court of Chancery more than a half century

after Hutchinson. Second, both judges cite only one

——————

esties Realme of Englande and other his Graces [Dominions],” Acte

concerning the triall of Treasons 1543–1544, 35 Hen. 8 ch. 2 (1543–

1544), it applied only to treasons and misprisions of treason—not to

homicide, of which Hutchinson was accused.

5 See G. Squibb, The High Court of Chivalry 54, 147–148 (1959)

(Squibb); 4 Blackstone 267.

Cite as: 587 U. S. ____ (2019) 15

Opinion of the Court

source, and it is of lower authority than their own: namely,

an account of Hutchinson given by an interested party

(a defendant) in a previous, non-criminal case—an account

on which the court in that case did not rely or even com-

ment.6 Insofar as our two judges seem to add their own

details to the Hutchinson saga, we are not told where they

obtained this information or whether it reflects mere

guesses as to how gaps in the story should be filled in,

decades after the fact. Finally, the two judges’ accounts

are not entirely consistent. Still, they are the only early

judicial glosses on Hutchinson that we have, so we will

work with them.

The more extensive account appears in the case of Gage

v. Bulkeley, Ridg. T. H. 263, 27 Eng. Rep. 824 (Ch. 1744),

and what the court said there—far from supporting Gam-

ble’s argument—cuts against it. Gage involved a bill in

chancery for an account of money deposited with a banker

in Paris. The defendants pleaded, as a bar to this lawsuit,

“a sentence” “given upon” the same demand in a French

court. Ibid. In addressing this plea, Lord Chancellor

Hardwicke first determined that foreign judgments are

not binding in an English court of law. Here his reasoning

was very similar to that found in our dual-sovereignty

decisions. Because each judgment rests on the authority

of a particular sovereign, the Chancellor thought, it cannot

bind foreign courts, which operate by the power of a differ-

ent sovereign. Id., at 263–264, 27 Eng. Rep., at 824.

——————

6 See Gage v. Bulkeley, Ridg. T. H. 263, 271, 27 Eng. Rep. 824, 826–

827 (Ch. 1744) (citing Beake v. Tyrrell, 1 Show. K. B. 6); Burrows v.

Jemino, 2 Str. 733, 25 Eng. Rep. 235 (K. B. 1726) (same). As noted, the

report cited by both judges—which also appears at 89 Eng. Rep. 411 (K.

B. 1688)—mentions Hutchinson only in summarizing a defendant’s

argument. So does the only other source cited by either judge. See

Gage, Ridg. T. H., at 271, 27 Eng. Rep., at 826–827 (citing Beak v.

Thyrwhit, 3 Mod. 194, 87 Eng. Rep. 124 (K. B. 1688)). Below we discuss

in detail the case that figures in these two reports. See infra, at 19,

and n. 11.

16 GAMBLE v. UNITED STATES

Opinion of the Court

Turning next to courts of equity, the Lord Chancellor

saw no reason that the rule should be any different; there

too, he thought, a foreign judgment is not binding. Id., at

273, 27 Eng. Rep., at 827. But he did allow that in equity

a foreign judgment could serve as “evidence, which may

affect the right of [a plaintiff] when the cause comes to be

heard.” Ibid.

Elaborating on why foreign judgments did not bind

English courts, whether of law or equity, the Lord Chan-

cellor explained why Hutchinson was “no proof ” to the

contrary. In the Chancellor’s telling, Hutchinson was not

indicted by the Court of King’s Bench, which could have

tried a murder committed in England,7 because that court

had no jurisdiction over a homicide committed in Portugal.

Gage, Ridge. T. H., at 271, 27 Eng. Rep., at 826–827.

Instead, Hutchinson was (as the bail decision indicates)

before that court on a writ of habeas corpus, and his case

“was referred to the judges to know whether a commission

should issue” under a statute similar to the one mentioned

in the bail decision. Ibid., 27 Eng. Rep., at 827; see 33

Hen. 8 ch. 28 (1541–1542).8 “And,” he explained, “the

judges very rightly and mercifully thought not, because he

had undergone one trial already.” Gage, Ridg. T. H., at

271–272, 27 Eng. Rep., at 827 (emphasis added). This

suggests that Hutchinson was spared retrial as a matter

of discretion (“merc[y]”)—which must be true if the Chan-

——————

74 Blackstone 262.

8 This statute authorized commissioners to try certain defendants for

acts of treason or murder committed “in whatsoever other Shire or

place, within the King’s dominions or without.” But “[d]espite the

words ‘or without’, contemporary opinion seems not to have regarded

the extra-territorial operation of this Act as clear.” Squibb 149. In-

deed, the statute cited in the Hutchinson bail report, dated to just two

years later, cited lingering “doubtes and questions” about whether

English courts could try treason committed abroad (in the course of

clarifying that treason and misprisions of treason abroad could indeed

be tried in England). 35 Hen. 8 ch. 2, § I.

Cite as: 587 U. S. ____ (2019) 17

Opinion of the Court

cellor was right that foreign judgments were not binding.

Indeed, at least one modern scholar agrees (on other

grounds as well) that the result in Hutchinson may have

been based on “expediency rather than law.” M. Fried-

land, Double Jeopardy 362–363 (1969).

In the end, then, Gage is doubly damaging to Gamble.

First, it squarely rejects the proposition that a litigant in

an English court—even a civil litigant in equity—had a

right to the benefit of a foreign judgment, a right that the

Fifth Amendment might have codified. And second, Gage

undermines Gamble’s chief historical example,

Hutchinson, by giving a contrary reading of that case—

and doing so, no less, in one of the only two judicial ac-

counts of Hutchinson that we have from before the Fifth

Amendment.

The other account appears in Burrows v. Jemino, 2 Str.

733, 93 Eng. Rep. 815 (K. B. 1726).9 In Burrows, a party

that was sued in England on a bill of exchange sought an

injunction against this suit in the Court of Chancery,

contending that the suit was barred by the judgment of a

court in Italy. In explaining why he would grant the

injunction, Lord Chancellor King cited Hutchinson, which

he thought had involved an acquittal in Spanish court

that was “allowed to be a good bar to any proceedings

here.” 2 Str., at 733, 93 Eng. Rep., at 815. This remark,

showing that at least one English judge before the found-

ing saw Hutchinson as Gamble does, provides a modicum

of support for Gamble’s argument. But that support soft-

ens just a few lines down in the report, where the Chan-

cellor discusses the status of foreign judgments in courts

of law in particular (as distinct from courts of equity like

——————

9 This case is also reported as Burrows v. Jemineau in Sel. Ca. t. 69,

25 Eng. Rep. 228 (Ch. 1726); as Burroughs v. Jamineau in Mos. 1, 25

Eng. Rep. 235; as Burrows v. Jemineau in 2 Eq. Ca. Abr. 476, 22 Eng.

Rep. 405; and as Burrows v. Jemino in 2 Eq. Ca. Abr. 524, 22 Eng. Rep.

443.

18 GAMBLE v. UNITED STATES

Opinion of the Court

his own)—i.e., the courts that actually applied the common-

law rules later codified by the Fifth Amendment.

Here the Chancellor explained that while he personally

would have accepted an Italian judgment as barring any

suit at law, “other Judges might be of a different opinion.”

Ibid. As a whole, then, the Chancellor’s comments in

Burrows can hardly be cited to prove that the common law

had made up its mind on this matter; just the opposite.

Gamble’s other cases have even less force. The “most

instructive” case, he claims, see Brief for Petitioner 13, is

the 1775 case of King v. Roche, 1 Leach 134,10 168 Eng.

Rep. 169 (K.B.), but that is a curious choice since the

Roche court does not so much as mention Hutchinson or

even tacitly affirm its supposed holding. The defendant in

Roche entered two pleas: prior acquittal abroad and not

guilty of the charged crime. All that the Roche court held

was that, as a procedural matter, it made no sense to

charge the jury with both pleas at once, because a finding

for Roche on the first (prior acquittal) would, if successful,

bar consideration of the second (not guilty). Roche, 1

Leach, at 135, 168 Eng. Rep., at 169. But on our key

question—whether a plea based on a foreign acquittal

could be successful—the Roche court said absolutely noth-

ing; it had no occasion to do so. Before the prosecution

could reply to Roche’s plea of prior acquittal, he withdrew

it, opting for a full trial. The name Hutchinson does not

appear even in the marginalia of the 1789 edition of

Roche, which existed in 1791. See Captain Roche’s Case, 1

Leach at 138–139.

Hutchinson is mentioned in connection with Roche only

after the Fifth Amendment’s ratification, and only in a

compiler’s annotation to the 1800 edition of the Roche case

report. See 168 Eng. Rep., at 169, n. (a). That annotation

——————

10 This case is reported as Captain Roche’s Case in 1 Leach 138 (1789

ed.) and in 2 Leach 125 (1792 ed.).

Cite as: 587 U. S. ____ (2019) 19

Opinion of the Court

in turn cites one case as support for its reading of

Hutchinson: Beak v. Thyrwhit, 3 Mod. 194, 87 Eng. Rep.

124 (K. B. 1688). But Beak did not involve a foreign pros-

ecution; indeed, it did not involve a prosecution at all. It

was an admiralty case for trover and conversion of a ship,

and—more to the point—Hutchinson is discussed only in

the defendant’s argument in that case, not the court’s

response. A report relaying the actual decision in Beak

shows that the court ultimately said nothing about the

defendant’s Hutchinson argument one way or another.

See Beake v. Tyrrell, 1 Show. K. B. 6, 89 Eng. Rep. 411

(1688).11 This same defendant’s argument was the only

source of information about Hutchinson on which the

Chancellors in Gage and Burrows explicitly relied, as we

noted above. All later accounts of Hutchinson seem to

stem from this one shallow root.

The last of Gamble’s five pre-Fifth Amendment cases,

Rex v. Thomas, 1 Lev. 118, 83 Eng. Rep. 326 (K. B. 1664),

did not even involve a foreign prosecution. The defendant

was indicted for murder in England, and he pleaded a

prior acquittal by a Welsh court. But Wales was then part

of the “kingdom of England”; its laws were “the laws of

England and no other.” 1 Blackstone 94–95; see Thomas,

1 Lev., at 118, 83 Eng. Rep., at 326–327. So the prior trial

in Thomas was not under another sovereign’s laws, mak-

ing it totally irrelevant for present purposes.

Summing up the import of the preratification cases on

which Gamble’s argument rests, we have the following: (1)

not a single reported case in which a foreign acquittal or

conviction barred a later prosecution for the same act in

either Britain or America; (2) not a single reported deci-

sion in which a foreign judgment was held to be binding in

a civil case in a court of law; (3) fragmentary and not

——————

11 This decision is also reported as Beake v. Tirrell, Com. 120, 90 Eng.

Rep. 379.

20 GAMBLE v. UNITED STATES

Opinion of the Court

entirely consistent evidence about a 17th-century case in

which a defendant named Hutchinson, having been tried

and acquitted for murder someplace in the Iberian Penin-

sula, is said to have been spared a second trial for this

crime on some ground, perhaps out of “merc[y],” not as a

matter of right; (4) two cases (one criminal, one in admi-

ralty) in which a party invoked a prior foreign judgment,

but the court did not endorse or rest anything on the

party’s reliance on that judgment; and (5) two Court of

Chancery cases actually holding that foreign judgments

were not (or not generally) treated as barring trial at

common law. This is the flimsy foundation in case law for

Gamble’s argument that when the Fifth Amendment was

ratified, it was well understood that a foreign criminal

judgment would bar retrial for the same act.

Surveying the pre-Fifth Amendment cases in 1959, we

concluded that their probative value was “dubious” due to

“confused and inadequate reporting.” Bartkus, 359 U. S.,

at 128, n. 9. Our assessment was accurate then, and the

passing years have not made those early cases any clearer

or more valuable.

B

Not to worry, Gamble responds: Whatever the English

courts actually did prior to adoption of the Fifth Amend-

ment, by that time the early English cases were widely

thought to support his view. This is a curious argument

indeed. It would have us hold that the Fifth Amendment

codified a common-law right that existed in legend, not

case law. In any event, the evidence that this right was

thought to be settled is very thin.

Gamble’s argument is based on treatises, but they are

not nearly as helpful as he claims. Alone they do not come

close to settling the historical question with enough force

to meet Gamble’s particular burden under stare decisis.

Gamble begins with Blackstone, but he reads volumes

Cite as: 587 U. S. ____ (2019) 21

Opinion of the Court

into a flyspeck. In the body of his Commentaries, all that

Blackstone stated was that successive prosecutions could

be barred by prior acquittals by “any court having compe-

tent jurisdiction of the offence.” 4 Blackstone 335. This is

simply a statement of the general double-jeopardy rule,

without a word on separate sovereigns. So Gamble directs

our attention to a footnote that appears after the phrase

“any court having competent jurisdiction.” The footnote

refers to the report of Beak v. Thyrwhit, which, as noted,

merely rehearses the argument of the defendant in that

case, who in turn mentioned Hutchinson—but not in a

criminal prosecution, much less one preceded by a foreign

trial. This thread tying Blackstone to Hutchinson—a

thread woven through footnotes and reports of reports but

not a single statement by a court (or even by a party to an

actual prosecution)—is tenuous evidence that Blackstone

endorsed Gamble’s reading of Hutchinson.

When Gamble’s attorney was asked at argument which

other treatises he found most likely to have informed

those who ratified the Fifth Amendment, he offered four.

See Tr. of Oral Arg. 30–31. But two of the four treatises

did not exist when the Fifth Amendment was ratified. See

1 J. Chitty, Criminal Law 458 (1816); 1 T. Starkie, Crimi-

nal Pleading 300–301, n. h (1814). And a third discusses

not a single case involving a prior prosecution under for-

eign law. See 2 W. Hawkins, Pleas of the Crown 372

(1739).

That leaves one treatise cited by Gamble that spoke to

this issue before ratification, F. Buller, An Introduction to

the Law Relative to Trials at Nisi Prius (5th ed. 1788).

That treatise concerned the trial of civil cases, id., at 2,

and its discussion of prior judgments appeared under the

heading “Of Evidence in general,” id., at 221. After con-

sidering the evidentiary value of such documents as acts of

Parliament, deeds, and depositions, Buller addressed what

we would later call issue preclusion. Lifting language

22 GAMBLE v. UNITED STATES

Opinion of the Court

from an earlier publication, H. Bathurst, The Theory of

Evidence 39 (1761), Buller wrote that a final judgment

was “conclusive Evidence” “against all the World” of the

factual determinations underlying the judgment. Buller,

Nisi Prius, at 245. And it is on this basis that Buller

(again lifting from Bathurst) said that even someone

acquitted of a crime in Spain “might,” upon indictment in

England, “plead the Acquittal in Spain in Bar.” Ibid.

This endorsement of the preclusive effect of a foreign

judgment in civil litigation (which even today is not uni-

formly accepted in this country12) provides no direct sup-

port for Gamble since his prior judgment was one of con-

viction, not acquittal. (There is, after all, a major

difference between the preclusive effect of a prior acquittal

and that of a prior conviction: Only the first would make a

subsequent prosecution pointless, by requiring later courts

to assume a defendant’s innocence from the start.) And in

any case, the fleeting references in the Buller and Bat-

——————

12 Compare Restatement (Fourth) of Foreign Relations Law of the

United States § 481 (2018) (With a few specified exceptions, “a final,

conclusive, and enforceable judgment of a court of a foreign state

granting or denying recovery of a sum of money, or determining a legal

controversy, is entitled to recognition by courts in the United States”)

and Restatement (Second) of Conflict of Laws § 98, Comment b. (1969)

(“In most respects,” judgments rendered in a foreign nation satisfying

specified criteria “will be accorded the same degree of recognition to

which sister State judgments are entitled”), with, e.g., Derr v. Swarek,

766 F. 3d 430, 437 (CA5 2014) (recognition of foreign judgments is not

required but is a matter of comity); Diorinou v. Mezitis, 237 F. 3d 133,

142–143 (CA2 2001) (same); id., at 139–140 (“It is well-established that

United States courts are not obliged to recognize judgments rendered

by a foreign state, but may choose to give res judicata effect to foreign

judgments on the basis of comity” (emphasis in original; internal

quotation marks omitted)); MacArthur v. San Juan County, 497 F. 3d

1057, 1067 (CA10 2007) (“Comity is not an inexorable command . . . and

a request for recognition of a foreign judgment may be rebuffed on any

number of grounds”); Guinness PLC v. Ward, 955 F. 2d 875, 883 (CA4

1992) (“The effect to be given foreign judgments has therefore histori-

cally been determined by more flexible principles of comity”).

Cite as: 587 U. S. ____ (2019) 23

Opinion of the Court

hurst treatises are hardly sufficient to show that the Mem-

bers of the First Congress and the state legislators who

ratified the Fifth Amendment understood the Double

Jeopardy Clause to bar a prosecution in this country after

acquittal abroad for the same criminal conduct.

Gamble attempts to augment his support by citing

treatises published after the Fifth Amendment was adopted.13

And he notes that the Court in District of Columbia

v. Heller, 554 U. S. 570, 605–610 (2008), took treatises of a

similar vintage to shed light on the public understanding

in 1791 of the right codified by the Second Amendment.

But the Heller Court turned to these later treatises only

after surveying what it regarded as a wealth of authority

for its reading—including the text of the Second Amend-

ment and state constitutions. The 19th-century treatises

were treated as mere confirmation of what the Court

thought had already been established. Here Gamble’s

evidence as to the understanding in 1791 of the double

jeopardy right is not at all comparable.

C

When we turn from 19th-century treatises to 19th-

century state cases, Gamble’s argument appears no

stronger. The last time we looked, we found these state

cases to be “inconclusive.” Bartkus, 359 U. S., at 131.

They seemed to be evenly split and to “manifest conflict[s]

in conscience” rather than confident conclusions about the

common law. Ibid. Indeed, two of those cases manifested

nothing more than a misreading of a then-recent decision

of ours. Id., at 130. We see things no differently today.

The distinction between believing successive prosecu-

tions by separate sovereigns unjust and holding them

——————

13 See, e.g., F. Wharton, A Treatise on the Law of Homicide in the

United States 283 (1855); F. Wharton, A Treatise on the Criminal Law

of the United States 137 (1846); L. MacNally, The Rules of Evidence on

Pleas of the Crown 428 (1802).

24 GAMBLE v. UNITED STATES

Opinion of the Court

unlawful appears right on the face of the first state case

that Gamble discusses. In State v. Brown, 2 N. C. 100,

101 (1794), the court opined that it would be “against

natural justice” for a man who stole a horse in the Ohio

Territory to be punished for theft in North Carolina just

for having brought the horse to that State. To avoid this

result, the Brown court simply construed North Carolina’s

theft law not to reach the defendant’s conduct. But it did

so precisely because the defendant otherwise could face

two prosecutions for the same act of theft—despite the

common-law rule against double jeopardy for the same

“offence”—since “the offence against the laws of this State,

and the offence against the laws of [the Ohio Territory] are

distinct; and satisfaction made for the offence committed

against this State, is no satisfaction for the offence com-

mitted against the laws there.” Ibid. Far from undermin-

ing the dual-sovereignty rule, Brown expressly affirms it,

rejecting outright the idea that a judgment in one sover-

eign’s court could “be pleadable in bar to an indictment” in

another’s. Ibid.

Other state courts were divided. Massachusetts and

Michigan courts thought that at least some trials in either

federal or state court could bar prosecution in the other,

see Commonwealth v. Fuller, 49 Mass. 313, 318 (1844);

Harlan v. People, 1 Doug. 207, 212 (Mich. 1843), but those

antebellum cases are poor images of the founding-era

common law, resting as they do on what we have ex-

plained, see Bartkus, 359 U. S., at 130, was a misreading

of our then-recent decision in Houston v. Moore, 5 Wheat.

1 (1820), which we discuss below. A Vermont court did

take the same view based on its own analysis of the ques-

tion, State v. Randall, 2 Aik. 89, 100–101 (1827), but just a

few years later a Virginia court declared the opposite,

Hendrick v. Commonwealth, 32 Va. 707, 713 (1834) (pun-

ishment for forgery under both federal and Virginia law is

not double punishment for the “same offence” since “the

Cite as: 587 U. S. ____ (2019) 25

Opinion of the Court

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”). And South Carolina—a

perfect emblem of the time—produced cases cutting both

ways. See State v. Antonio, 2 Tread. 776, 781 (1816); State

v. Tutt, 2 Bail. 44, 47–48 (1831).

This is not the quantum of support for Gamble’s claim

about early American common law that might withstand

his burden under stare decisis. And once we look beyond

the Nation’s earliest years, the body of state-court deci-

sions appears even less helpful to Gamble’s position. We

aptly summarized those cases in Bartkus, 359 U. S., at

134–136, and need not add to that discussion here.14

D

Less useful still, for Gamble’s purposes, are the two

early Supreme Court cases on which he relies. In the first,

a member of the Pennsylvania militia was tried by a state

court-martial for the federal offense of deserting the mili-

tia. See Houston v. Moore, 5 Wheat. 1 (1820). The ac-

——————

14 As we put it in Bartkus, 359 U. S., at 134–136:

“Of the twenty-eight States which have considered the validity of

successive state and federal prosecutions as against a challenge of

violation of either a state constitutional double-jeopardy provision or a

common-law evidentiary rule of autrefois acquit and autrefois convict,

twenty-seven have refused to rule that the second prosecution was or

would be barred. These States were not bound to follow this Court and

its interpretation of the Fifth Amendment. The rules, constitutional,

statutory, or common law which bound them, drew upon the same

experience as did the Fifth Amendment, but were and are of separate

and independent authority.

“Not all of the state cases manifest careful reasoning, for in some of

them the language concerning double jeopardy is but offhand dictum.

But in an array of state cases there may be found full consideration of

the arguments supporting and denying a bar to a second prosecution.

These courts interpreted their rules as not proscribing a second prose-

cution where the first was by a different government and for violation

of a different statute.” (Footnote omitted.)

26 GAMBLE v. UNITED STATES

Opinion of the Court

cused objected that the state court-martial lacked jurisdic-

tion to try this federal offense. Since the offense could be

tried in federal court, the defendant argued, allowing the

state court-martial to try him for this crime could expose

him to successive federal and state prosecutions for the

same offense. Justice Washington answered that a ruling

in either federal or state court would bar a second trial in

the other. See id., at 31. But as we later explained,

“that language by Mr. Justice Washington reflected

his belief that the state statute imposed state sanc-

tions for violation of a federal criminal law. As he

viewed the matter, the two trials would not be of simi-

lar crimes arising out of the same conduct; they would

be of the same crime. Mr. Justice Johnson agreed

that if the state courts had become empowered to try

the defendant for the federal offense, then such a

state trial would bar a federal prosecution. Thus

Houston v. Moore can be cited only for the presence of

a bar in a case in which the second trial is for a viola-

tion of the very statute whose violation by the same

conduct has already been tried in the courts of an-

other government empowered to try that question.”

Bartkus, 359 U. S., at 130 (citations omitted).

In other words, Justice Washington taught only that the

law prohibits two sovereigns (in that case, Pennsylvania

and the United States) from both trying an offense against

one of them (the United States). That is consistent with

our doctrine allowing successive prosecutions for offenses

against separate sovereigns. In light of this reading of

Houston, the case does not undercut our dual-sovereignty

doctrine.

It may seem strange to think of state courts as prosecut-

ing crimes against the United States, but that is just what

state courts and commentators writing within a decade of

Houston thought it involved. See, e.g., Tutt, 2 Bail., at 47

Cite as: 587 U. S. ____ (2019) 27

Opinion of the Court

(“In [Houston], the act punished by the law of the State,

was certainly and exclusively an offence against the gen-

eral Government . . . [whereas h]ere, certainly there is an

offence against the State, and a very different one from

that committed against the United States” (emphasis

added)); 1 J. Kent, Commentaries on American Law 373–

374 (1826) (“[M]any . . . acts of [C]ongress . . . permit

jurisdiction, over the offences therein described, to be

exercised by state magistrates and courts,” and what

Houston bars are successive prosecutions for the same

“crime against the United States”). Even the scholar

Gamble cites for his cause finds Houston not “[o]n point”

because it “was discussing the jurisdiction of the state

court to try a crime against the nation and impose a fine

payable to the latter government.” Grant, Successive

Prosecutions by State and Nation: Common Law and

British Empire Comparisons, 4 UCLA L. Rev. 1, 7, and n.

27 (1956) (citing Warren, Federal Criminal Laws and the

State Courts, 38 Harv. L. Rev. 545 (1925)).

Perhaps feeling Houston wobble, Gamble says pre-

emptively that if it is “inconclusive,” Brief for Petitioner

26, other cases are clear. But the other federal case on

which he leans is worse for his argument. In United

States v. Furlong, 5 Wheat. 184, 197 (1820), we said that

an acquittal of piracy in the court of any “civilized State”

would bar prosecution in any other nation because piracy,

as an “offence within the criminal jurisdiction of all na-

tions,” is “punished by all.”15 Ending his quotation from

——————

15 Piracywas understood as a violation of the law of nations, which

was seen as common to all. That is why any successive prosecution for

piracy, being under the same law, would have been for the same of-

fense. See United States v. Smith, 5 Wheat. 153, 163, n. a (1820)

(quoting definitions of piracy by several ancient and more recent

authorities). See also 4 Blackstone 71 (“[T]he crime of piracy, or rob-

bery and depredation upon the high seas, is an offence against the

universal law of society; a pirate being, according to Sir Edward Coke,

28 GAMBLE v. UNITED STATES

Opinion of the Court

Furlong at this point, Gamble gives the impression that

Furlong rejects any dual-sovereignty rule. But that im-

pression is shattered by the next sentence: “Not so with

the crime of murder.” Ibid. As to that crime, the Furlong

Court was “inclined to think that an acquittal” in the

United States “would not have been a good plea in a Court

of Great Britain.” Ibid. (emphasis added). And that was

precisely because murder is “punishable under the laws of

each State” rather than falling under some “universal

jurisdiction.” Ibid. (emphasis added). When it came to

crimes that were understood to offend against more than

one sovereign, Furlong treated them as separate offenses—

just as we have a dozen times since, and just as we do

today.

Thus, of the two federal cases that Gamble cites against

the dual-sovereignty rule, Houston squares with it and

Furlong supports it. Together with the muddle in the

early state cases, this undermines Gamble’s claim that the

early American bench and bar took the Fifth Amendment

to proscribe successive prosecutions by different sover-

eigns. And without making a splash in the legal practice

of the time, a few early treatises by themselves cannot

unsettle almost two centuries of precedent.

IV

Besides appealing to the remote past, Gamble contends

that recent changes—one doctrinal, one practical—blunt

the force of stare decisis here. They do not.

——————

hostis humani generis [enemies of mankind]. As therefore he has

renounced all the benefits of society and government, and has reduced

himself afresh to the savage state of nature, by declaring war against

all mankind, all mankind must declare war against him: so that every

community has a right, by the rule of self-defence, to inflict that pun-

ishment upon him, which every individual would in a state of nature

have been otherwise entitled to do, for any invasion of his person or

personal property” (footnote omitted)).

Cite as: 587 U. S. ____ (2019) 29

Opinion of the Court

A

If historical claims form the chorus of Gamble’s argu-

ment, his refrain is “incorporation.” In Gamble’s telling,

the recognition of the Double Jeopardy Clause’s incorpora-

tion against the States, see Benton v. Maryland, 395 U. S.

784, 794 (1969), washed away any theoretical foundation

for the dual-sovereignty rule, see United States v. Gaudin,

515 U. S. 506, 521 (1995) (abrogating precedent when

“subsequent decisions of this Court” have “eroded” its

foundations). But this incorporation-changes-everything

argument trades on a false analogy.

The analogy Gamble draws is to the evolution of our

doctrine on the Fourth Amendment right against unrea-

sonable searches and seizures.16 We have long enforced

this right by barring courts from relying on evidence gath-

ered in an illegal search. Thus, in Weeks v. United States,

232 U. S. 383, 391–393 (1914), the Court held that federal

prosecutors could not rely on the fruits of an unreasonable

search undertaken by federal agents. But what if state or

local police conducted a search that would have violated

the Fourth Amendment if conducted by federal agents?

Before incorporation, the state search would not have

violated the Federal Constitution, so federal law would not

have barred admission of the resulting evidence in a state

prosecution. But by the very same token, under what was

termed “the silver-platter doctrine,” state authorities could

hand such evidence over to federal prosecutors for use in a

federal case. See id., at 398.

Once the Fourth Amendment was held to apply to the

States as well as the Federal Government, however, the

silver-platter doctrine was scuttled. See Elkins v. United

States, 364 U. S. 206 (1960); Wolf v. Colorado, 338 U. S. 25

——————

16 He draws a similar analogy to the Fifth Amendment right against

self-incrimination, but our response to his Fourth Amendment analogy

would answer that argument as well.

30 GAMBLE v. UNITED STATES

Opinion of the Court

(1949). Now the fruits of unreasonable state searches are

inadmissible in federal and state courts alike.

Gamble contends that the incorporation of the Double

Jeopardy Clause should likewise end the dual-sovereignty

rule, but his analogy fails. The silver-platter doctrine was

based on the fact that the state searches to which it ap-

plied did not at that time violate federal law. Once the

Fourth Amendment was incorporated against the States,

the status of those state searches changed. Now they did

violate federal law, so the basis for the silver-platter doc-

trine was gone. See Elkins, 364 U. S., at 213 (“The foun-

dation upon which the admissibility of state-seized evi-

dence in a federal trial originally rested—that

unreasonable state searches did not violate the Federal

Constitution—thus disappeared [with incorporation]”).

By contrast, the premises of the dual-sovereignty doc-

trine have survived incorporation intact. Incorporation

meant that the States were now required to abide by this

Court’s interpretation of the Double Jeopardy Clause. But

that interpretation has long included the dual-sovereignty

doctrine, and there is no logical reason why incorporation

should change it. After all, the doctrine rests on the fact

that only same-sovereign successive prosecutions are

prosecutions for the “same offense,” see Part II, supra—

and that is just as true after incorporation as before.

B

If incorporation is the doctrinal shift that Gamble in-

vokes to justify a departure from precedent, the practical

change he cites is the proliferation of federal criminal law.

Gamble says that the resulting overlap of federal and

criminal codes heightens the risk of successive prosecu-

tions under state and federal law for the same criminal

conduct. Thus, Gamble contends, our precedent should

yield to “ ‘far-reaching systemic and structural changes’ ”

that make our “earlier error all the more egregious and

Cite as: 587 U. S. ____ (2019) 31

Opinion of the Court

harmful.” South Dakota v. Wayfair, Inc., 585 U. S. ___,

___ (2018) (slip op., at 18). But unlike Gamble’s appeal to

incorporation, this argument obviously assumes that the

dual-sovereignty doctrine was legal error from the start.

So the argument is only as strong as Gamble’s argument

about the original understanding of double jeopardy

rights, an argument that we have found wanting.

Insofar as the expansion of the reach of federal criminal

law has been questioned on constitutional rather than

policy grounds, the argument has focused on whether

Congress has overstepped its legislative powers under the

Constitution. See, e.g., Gonzales v. Raich, 545 U. S. 1, 57–

74 (2005) (THOMAS, J., dissenting). Eliminating the dual-

sovereignty rule would do little to trim the reach of federal

criminal law, and it would not even prevent many succes-

sive state and federal prosecutions for the same criminal

conduct unless we also overruled the long-settled rule that

an “offence” for double jeopardy purposes is defined by

statutory elements, not by what might be described in a

looser sense as a unit of criminal conduct. See Block-

burger v. United States, 284 U. S. 299 (1932). Perhaps

believing that two revolutionary assaults in the same case

would be too much, Gamble has not asked us to overrule

Blockburger along with the dual-sovereignty rule.

* * *

The judgment of the Court of Appeals for the Eleventh

Circuit is affirmed.

It is so ordered.

Cite as: 587 U. S. ____ (2019) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–646

_________________

TERANCE MARTEZ GAMBLE, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 17, 2019]

JUSTICE THOMAS, concurring.

I agree that the historical record does not bear out my

initial skepticism of the dual-sovereignty doctrine. See

Puerto Rico v. Sánchez Valle, 579 U. S. ___ (2016)

(GINSBURG, J., joined by THOMAS, J. concurring).

The founding generation foresaw very limited potential for

overlapping criminal prosecutions by the States and the

Federal Government.1 The Founders therefore had no

reason to address the double jeopardy question that the

Court resolves today. Given their understanding of Con-

gress’ limited criminal jurisdiction and the absence of an

analogous dual-sovereign system in England, it is difficult

to conclude that the People who ratified the Fifth Amend-

——————

1 As the Court suggests, Congress is responsible for the proliferation

of duplicative prosecutions for the same offenses by the States and the

Federal Government. Ante, at 28. By legislating beyond its limited

powers, Congress has taken from the People authority that they never

gave. U. S. Const., Art. I, §8; The Federalist No. 22, p. 152 (C. Rossiter

ed. 1961) (“all legitimate authority” derives from “the consent of the

people” (capitalization omitted)). And the Court has been complicit by

blessing this questionable expansion of the Commerce Clause. See, e.g.,

Gonzales v. Raich, 545 U. S. 1, 57–74 (2005) (THOMAS, J., dissenting).

Indeed, it seems possible that much of Title 18, among other parts of

the U. S. Code, is premised on the Court’s incorrect interpretation of

the Commerce Clause and is thus an incursion into the States’ general

criminal jurisdiction and an imposition on the People’s liberty.

2 GAMBLE v. UNITED STATES

THOMAS, J., concurring

ment understood it to prohibit prosecution by a State and

the Federal Government for the same offense. And, of

course, we are not entitled to interpret the Constitution to

align it with our personal sensibilities about “ ‘unjust’ ”

prosecutions. Post, at 6 (GINSBURG, J., dissenting); see

Currier v. Virginia, 585 U. S. ___, ___ (2018) (plurality

opinion) (slip op., at 16) (“While the growing number of

criminal offenses in our statute books may be cause for

concern, no one should expect (or want) judges to revise

the Constitution to address every social problem they

happen to perceive” (citation omitted)).

I write separately to address the proper role of the

doctrine of stare decisis. In my view, the Court’s typical

formulation of the stare decisis standard does not comport

with our judicial duty under Article III because it elevates

demonstrably erroneous decisions—meaning decisions

outside the realm of permissible interpretation—over the

text of the Constitution and other duly enacted federal

law. It is always “tempting for judges to confuse our own

preferences with the requirements of the law,” Obergefell

v. Hodges, 576 U. S. ___, ___ (2015) (ROBERTS, C. J., dis-

senting) (slip op., at 3), and the Court’s stare decisis doc-

trine exacerbates that temptation by giving the veneer of

respectability to our continued application of demonstra-

bly incorrect precedents. By applying demonstrably erro-

neous precedent instead of the relevant law’s text—as the

Court is particularly prone to do when expanding federal

power or crafting new individual rights—the Court exer-

cises “force” and “will,” two attributes the People did not

give it. The Federalist No. 78, p. 465 (C. Rossiter ed. 1961)

(capitalization omitted).

We should restore our stare decisis jurisprudence to

ensure that we exercise “mer[e] judgment,” ibid., which

can be achieved through adherence to the correct, original

meaning of the laws we are charged with applying. In my

Cite as: 587 U. S. ____ (2019) 3

THOMAS, J., concurring

view, anything less invites arbitrariness into judging.2

I

The Court currently views stare decisis as a “ ‘principle

of policy’ ” that balances several factors to decide whether

the scales tip in favor of overruling precedent. Citizens

United v. Federal Election Comm’n, 558 U. S. 310, 363

(2010) (quoting Helvering v. Hallock, 309 U. S. 106, 119

(1940)). Among these factors are the “workability” of the

standard, “the antiquity of the precedent, the reliance

interests at stake, and of course whether the decision was

well reasoned.” Montejo v. Louisiana, 556 U. S. 778, 792–

793 (2009). The influence of this last factor tends to ebb

and flow with the Court’s desire to achieve a particular

end, and the Court may cite additional, ad hoc factors to

reinforce the result it chooses. But the shared theme is

the need for a “special reason over and above the belief

that a prior case was wrongly decided” to overrule a prec-

edent. Planned Parenthood of Southeastern Pa. v. Casey,

505 U. S. 833, 864 (1992). The Court has advanced this

view of stare decisis on the ground that “it promotes the

evenhanded, predictable, and consistent development of

legal principles” and “contributes to the actual and per-

ceived integrity of the judicial process.” Payne v. Tennes-

see, 501 U. S. 808, 827 (1991).

This approach to stare decisis might have made sense in

a common-law legal system in which courts systematically

developed the law through judicial decisions apart from

written law. But our federal system is different. The

Constitution tasks the political branches—not the Judici-

ary—with systematically developing the laws that govern

our society. The Court’s role, by contrast, is to exercise the

——————

2 My focus in this opinion is on this Court’s adherence to its own prec-

edents. I make no claim about any obligation of “inferior” federal

courts, U. S. Const., Art. III, §1, or state courts to follow Supreme Court

precedent.

4 GAMBLE v. UNITED STATES

THOMAS, J., concurring

“judicial Power,” faithfully interpreting the Constitution

and the laws enacted by those branches. Art. III, §1.

A

A proper understanding of stare decisis in our constitu-

tional structure requires a proper understanding of the

nature of the “judicial Power” vested in the federal courts.

That “Power” is—as Chief Justice Marshall put it—the

power “to say what the law is” in the context of a particu-

lar “case” or “controversy” before the court. Marbury v.

Madison, 1 Cranch 137, 177 (1803); Art. III, §2. Phrased

differently, the “judicial Power” “is fundamentally the

power to decide cases in accordance with law.” Lawson,

The Constitutional Case Against Precedent, 17 Harv. J. L.

& Pub. Pol’y 23, 26 (1994) (Lawson). It refers to the duty

to exercise “judicial discretion” as distinct from “arbitrary

discretion.” The Federalist No. 78, at 468, 471.

That means two things, the first prohibitory and the

second obligatory. First, the Judiciary lacks “force” (the

power to execute the law) and “will” (the power to legis-

late). Id., at 465 (capitalization omitted). Those powers

are vested in the President and Congress, respectively.

“Judicial power is never exercised for the purpose of giving

effect to the will of the Judge; always for the purpose of

giving effect to the will of the Legislature; or, in other

words, to the will of the law.” Osborn v. Bank of United

States, 9 Wheat. 738, 866 (1824) (Marshall, C. J.). The

Judiciary thus may not “substitute [its] own pleasure to

the constitutional intentions of the legislature.” The

Federalist No. 78, at 468–469.

Second, “judicial discretion” requires the “liquidat[ion]”

or “ascertain[ment]” of the meaning of the law. Id., at

467–468; see id., No. 37. At the time of the founding, “to

liquidate” meant “to make clear or plain”; “to render un-

ambiguous; to settle (differences, disputes).” Nelson, Stare

Decisis and Demonstrably Erroneous Precedents, 87 Va.

Cite as: 587 U. S. ____ (2019) 5

THOMAS, J., concurring

L. Rev. 1, 13, and n. 35 (2001) (Nelson) (quoting 8 Oxford

English Dictionary 1012 (2d ed. 1991); (internal quotation

marks omitted)). Therefore, judicial discretion is not the

power to “alter” the law; it is the duty to correctly “ex-

pound” it. Letter from J. Madison to N. Trist (Dec. 1831),

in 9 The Writings of James Madison 477 (G. Hunt ed.

1910) (Writings of Madison).

B

This understanding of the judicial power had long been

accepted at the time of the founding. But the federalist

structure of the constitutional plan had significant impli-

cations for the exercise of that power by the newly created

Federal Judiciary. Whereas the common-law courts of

England discerned and defined many legal principles in

the first instance, the Constitution charged federal courts

primarily with applying a limited body of written laws

articulating those legal principles. This shift profoundly

affects the application of stare decisis today.

Stare decisis has its pedigree in the unwritten common

law of England. As Blackstone explained, the common law

included “[e]stablished customs” and “[e]stablished rules

and maxims” that were discerned and articulated by

judges. 1 W. Blackstone, Commentaries on the Laws of

England 68–69 (1765) (Blackstone). In the common-law

system, stare decisis played an important role because

“judicial decisions [were] the principal and most authorita-

tive evidence, that [could] be given, of the existence of such

a custom as shall form a part of the common law.” Id.,

at 69. Accordingly, “precedents and rules must be fol-

lowed, unless flatly absurd or unjust,” because a judge

must issue judgments “according to the known laws and

customs of the land” and not “according to his private

sentiments” or “own private judgment.” Id., at 69–70. In

other words, judges were expected to adhere to precedents

because they embodied the very law the judges were

6 GAMBLE v. UNITED STATES

THOMAS, J., concurring

bound to apply.

“[C]ommon law doctrines, as articulated by judges, were

seen as principles that had been discovered rather than

new laws that were being made.” 3–4 G. White, The

Marshall Court and Cultural Change, 1815–35, History of

the Supreme Court of the United States 129 (1988).3 “It

was the application of the dictates of natural justice, and

of cultivated reason, to particular cases.” 1 J. Kent, Com-

mentaries on American Law 439 (1826) (Kent); see id., at

439–440 (the common law is “ ‘not the product of the wis-

dom of some one man, or society of men, in any one age;

but of the wisdom, counsel, experience, and observation, of

many ages of wise and observing men’ ”). The common law

therefore rested on “unarticulated social processes to

mobilize and coordinate knowledge” gained primarily

through “the social experience of the many,” rather than

the “specifically articulated reason of the few.” T. Sowell,

A Conflict of Visions: Ideological Origins of Political

Struggles 49, 42 (1987). In other words, the common law

was based in the collective, systematic development of the

law through reason. See id., at 49–55.

Importantly, however, the common law did not view

precedent as unyielding when it was “most evidently

contrary to reason” or “divine law.” Blackstone 69–70.

The founding generation recognized that a “judge may

mistake the law.” Id., at 71; see also 1 Kent 444 (“Even a

series of decisions are not always conclusive evidence of

what is law”). And according to Blackstone, judges should

disregard precedent that articulates a rule incorrectly

when necessary “to vindicate the old [rule] from misrepre-

——————

3 Our founding documents similarly rest on the premise that certain

fundamental principles are both knowable and objectively true. See,

e.g., Declaration of Independence (“We hold these truths to be self-

evident, that all men are created equal, that they are endowed by their

Creator with certain unalienable Rights, that among these are Life,

Liberty, and the pursuit of Happiness”).

Cite as: 587 U. S. ____ (2019) 7

THOMAS, J., concurring

sentation.” Blackstone 70; see also 1 Kent 443 (“If . . . any

solemnly adjudged case can be shown to be founded in

error, it is no doubt the right and the duty of the judges

who have a similar case before them, to correct the error”).

He went further: When a “former decision is manifestly

absurd or unjust” or fails to conform to reason, it is not

simply “bad law,” but “not law” at all. Blackstone 70

(emphasis). This view—that demonstrably erroneous

“blunders” of prior courts should be corrected—was ac-

cepted by state courts throughout the 19th century. See,

e.g., McDowell v. Oyer, 21 Pa. 417, 423 (1853); Guild v.

Eager, 17 Mass. 615, 622 (1822).

This view of precedent implies that even common-law

judges did not act as legislators, inserting their own pref-

erences into the law as it developed. Instead, consistent

with the nature of the judicial power, common-law judges

were tasked with identifying and applying objective prin-

ciples of law—discerned from natural reason, custom, and

other external sources—to particular cases. See Nelson

23–27. Thus, the founding generation understood that an

important function of the Judiciary in a common-law

system was to ascertain what reason or custom required;

that it was possible for courts to err in doing so; and that

it was the Judiciary’s responsibility to “examin[e] without

fear, and revis[e] without reluctance,” any “hasty and

crude decisions” rather than leaving “the character of [the]

law impaired, and the beauty and harmony of the system

destroyed by the perpetuity of error.” 1 Kent 444.

Federal courts today look to different sources of law

when exercising the judicial power than did the common-

law courts of England. The Court has long held that

“[t]here is no federal general common law.” Erie R. Co. v.

Tompkins, 304 U. S. 64, 78 (1938). Instead, the federal

courts primarily interpret and apply three bodies of fed-

eral positive law—the Constitution; federal statutes, rules,

8 GAMBLE v. UNITED STATES

THOMAS, J., concurring

and regulations; and treaties.4 That removes most (if

not all) of the force that stare decisis held in the English

common-law system, where judicial precedents were among

the only documents identifying the governing “customs” or

“rules and maxims.” Blackstone 68. We operate in a

system of written law in which courts need not—and

generally cannot—articulate the law in the first instance.

See U. S. Const., Art. I, §1 (vesting “[a]ll legislative Pow-

ers” in Congress); Art. 1, §7 (describing the bicameralism

and presentment process). The Constitution, federal

statutes, and treaties are the law, and the systematic

development of the law is accomplished democratically.

Our judicial task is modest: We interpret and apply writ-

ten law to the facts of particular cases.

Underlying this legal system is the key premise that

words, including written laws, are capable of objective,

ascertainable meaning. As I have previously explained,

“[m]y vision of the process of judging is unabashedly based

on the proposition that there are right and wrong answers

to legal questions.” Thomas, Judging, 45 U. Kan. L. Rev.

1, 5 (1996). Accordingly, judicial decisions may incorrectly

interpret the law, and when they do, subsequent courts

must confront the question when to depart from them.

C

Given that the primary role of federal courts today is to

interpret legal texts with ascertainable meanings, prece-

dent plays a different role in our exercise of the “judicial

Power” than it did at common law. In my view, if the

Court encounters a decision that is demonstrably errone-

ous—i.e., one that is not a permissible interpretation of

——————

4 There are certain exceptions to this general rule, including areas of

law in which federal common law has historically been understood to

govern (e.g., admiralty) and well-established judicial doctrines that are

applied in the federal courts (e.g., issue preclusion). Additionally,

federal courts apply state law where it governs.

Cite as: 587 U. S. ____ (2019) 9

THOMAS, J., concurring

the text—the Court should correct the error, regardless of

whether other factors support overruling the precedent.

Federal courts may (but need not) adhere to an incorrect

decision as precedent, but only when traditional tools of

legal interpretation show that the earlier decision adopted

a textually permissible interpretation of the law. A de-

monstrably incorrect judicial decision, by contrast, is

tantamount to making law, and adhering to it both disre-

gards the supremacy of the Constitution and perpetuates

a usurpation of the legislative power.

1

When faced with a demonstrably erroneous precedent,

my rule is simple: We should not follow it. This view of

stare decisis follows directly from the Constitution’s su-

premacy over other sources of law—including our own

precedents. That the Constitution outranks other sources

of law is inherent in its nature. See A. Amar, America’s

Constitution 5 (2005) (explaining that the Constitution is

a constitutive document); Kesavan, The Three Tiers of

Federal Law, 100 NW.U. L. Rev. 1479, 1499, n. 99 (2006)

(arguing that “[i]t is unnecessary for the Constitution to

specify that it is superior to other law because it is higher

law made by We the People—and the only such law”). The

Constitution’s supremacy is also reflected in its require-

ment that all judicial officers, executive officers, Con-

gressmen, and state legislators take an oath to “support

this Constitution.” Art. VI, cl. 3; see also Art. II, §1, cl. 8

(requiring the President to “solemnly swear (or affirm)” to

“preserve, protect and defend the Constitution of the

United States”). Notably, the Constitution does not man-

date that judicial officers swear to uphold judicial prece-

dents. And the Court has long recognized the supremacy

of the Constitution with respect to executive action and

“legislative act[s] repugnant to” it. Marbury, 1 Cranch, at

177; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.

10 GAMBLE v. UNITED STATES

THOMAS, J., concurring

579, 587–589 (1952); see also The Federalist No. 78, at 467

(“No legislative act, therefore, contrary to the Constitu-

tion, can be valid”).

The same goes for judicial precedent. The “judicial

Power” must be understood in light of “the Constitution’s

status as the supreme legal document” over “lesser sources

of law.” Lawson, 29–30. This status necessarily limits

“the power of a court to give legal effect to prior judicial

decisions” that articulate demonstrably erroneous inter-

pretations of the Constitution because those prior deci-

sions cannot take precedence over the Constitution itself.

Ibid. Put differently, because the Constitution is supreme

over other sources of law, it requires us to privilege its text

over our own precedents when the two are in conflict. I

am aware of no legitimate reason why a court may privi-

lege a demonstrably erroneous interpretation of the Con-

stitution over the Constitution itself.5

The same principle applies when interpreting statutes

and other sources of law: If a prior decision demonstrably

erred in interpreting such a law, federal judges should

exercise the judicial power—not perpetuate a usurpation

of the legislative power—and correct the error. A contrary

rule would permit judges to “substitute their own pleas-

ure” for the law. The Federalist No. 78, at 468; see id., at

——————

5 Congress and the Executive likewise must independently evaluate

the constitutionality of their actions; they take an oath to uphold the

Constitution, not to blindly follow judicial precedent. In the context of

a judicial case or controversy, however, their determinations do not

bind the Judiciary in performing its constitutionally assigned role. See,

e.g., Zivotofsky v. Clinton, 566 U. S. 189, 197 (2012) (noting that there

is “no exclusive commitment to the Executive of the power to determine

the constitutionality of a statute”); INS v. Chadha, 462 U. S. 919, 944

(1983) (Congress’ and President’s endorsement of “legislative veto”

“sharpened rather than blunted” Court’s judicial review). Of course,

consistent with the nature of the “judicial Power,” the federal courts’

judgments bind all parties to the case, including Government officials

and agencies.

Cite as: 587 U. S. ____ (2019) 11

THOMAS, J., concurring

466 (“ ‘[T]here is no liberty if the power of judging be not

separated from the legislative and executive powers’ ”).

In sum, my view of stare decisis requires adherence to

decisions made by the People—that is, to the original

understanding of the relevant legal text—which may not

align with decisions made by the Court. Accord, Marshall

v. Baltimore & Ohio R. Co., 16 How. 314, 343–344 (1854)

(Daniel, J., dissenting) (“Wherever the Constitution com-

mands, discretion terminates” because continued adher-

ence to “palpable error” is a “violation of duty, an usurpa-

tion”); Commonwealth v. Posey, 8 Va. 109, 116 (1787)

(opinion of Tazewell, J.) (“[A]lthough I venerate prece-

dents, I venerate the written law more”). Thus, no “ ‘spe-

cial justification’ ” is needed for a federal court to depart

from its own, demonstrably erroneous precedent. Halli-

burton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 266

(2014); see Nelson 62. Considerations beyond the correct

legal meaning, including reliance, workability, and whether

a precedent “has become well embedded in national

culture,” S. Breyer, Making our Democracy Work: A

Judge’s View 152 (2010), are inapposite. In our constitu-

tional structure, our role of upholding the law’s original

meaning is reason enough to correct course.6

2

Although precedent does not supersede the original

meaning of a legal text, it may remain relevant when it is

not demonstrably erroneous. As discussed, the “judicial

——————

6I am not suggesting that the Court must independently assure itself

that each precedent relied on in every opinion is correct as a matter of

original understanding. We may, consistent with our constitutional

duty and the Judiciary’s historical practice, proceed on the understand-

ing that our predecessors properly discharged their constitutional role

until we have reason to think otherwise—as, for example, when a party

raises the issue or a previous opinion persuasively critiques the dis-

puted precedent.

12 GAMBLE v. UNITED STATES

THOMAS, J., concurring

Power” requires the Court to clarify and settle—or, as

Madison and Hamilton put it, to “liquidate”—the meaning

of written laws. The Federalist No. 78, at 468 (“[I]t is the

province of the courts to liquidate and fix [the] meaning

and operation [of contradictory laws]”); The Federalist No.

37, at 229 (explaining that the indeterminacy of laws

requires courts to “liquidat[e] and ascertai[n]” their mean-

ing “by a series of particular discussions and adjudica-

tions”). This need to liquidate arises from the inability of

human language to be fully unequivocal in every context.

Written laws “have a range of indeterminacy,” and rea-

sonable people may therefore arrive at different conclu-

sions about the original meaning of a legal text after

employing all relevant tools of interpretation. See Nelson

11, 14. It is within that range of permissible interpreta-

tions that precedent is relevant. If, for example, the

meaning of a statute has been “liquidated” in a way that is

not demonstrably erroneous (i.e., not an impermissible

interpretation of the text), the judicial policy of stare deci-

sis permits courts to constitutionally adhere to that inter-

pretation, even if a later court might have ruled another

way as a matter of first impression. Of course, a subse-

quent court may nonetheless conclude that an incorrect

precedent should be abandoned, even if the precedent

might fall within the range of permissible interpretations.

But nothing in the Constitution requires courts to take

that step.

Put another way, there is room for honest disagreement,

even as we endeavor to find the correct answer. Compare

McIntyre v. Ohio Elections Comm’n, 514 U. S. 334,

358–371 (1995) (THOMAS, J., concurring in judg-

ment) (concluding that the “historical evidence from the

framing” supports the view that the First Amend-

ment permitted anonymous speech), with id., at 371–385

(Scalia, J., dissenting) (concluding that the First Amendment

does not protect anonymous speech based on a century of

practice in the States). Reasonable jurists can apply

Cite as: 587 U. S. ____ (2019) 13

THOMAS, J., concurring

traditional tools of construction and arrive at different

interpretations of legal texts.

“[L]iquidating” indeterminacies in written laws is far

removed from expanding or altering them. See Writings of

Madison 477 (explaining that judicial decisions cannot

“alter” the Constitution, only “expound” it). The original

meaning of legal texts “usually . . . is easy to discern and

simple to apply.” A. Scalia, Common Law Courts in a

Civil-Law System, in A Matter of Interpretation: Federal

Courts and the Law 45 (A. Gutmann ed. 1997). And even

in difficult cases, that the original meaning is not obvious

at first blush does not excuse the Court from diligently

pursuing that meaning. Stopping the interpretive inquiry

short—or allowing personal views to color it—permits

courts to substitute their own preferences over the text.

Although the law may be, on rare occasion, truly ambigu-

ous—meaning susceptible to multiple, equally correct

legal meanings—the law never “runs out” in the sense

that a Court may adopt an interpretation beyond the

bounds of permissible construction.7 In that regard, a

legal text is not capable of multiple permissible interpreta-

tions merely because discerning its original meaning

“requires a taxing inquiry.” Pauley v. BethEnergy Mines,

Inc., 501 U. S. 680, 707 (1991) (Scalia, J., dissenting).

This case is a good example. The historical record pre-

sents knotty issues about the original meaning of the Fifth

Amendment, and JUSTICE GORSUCH does an admirable job

arguing against our longstanding interpretation of the

Double Jeopardy Clause. Although JUSTICE GORSUCH

identifies support for his view in several postratification

treatises, see post, at 13–15 (dissenting opinion), I do not

——————

7 Indeed, if a statute contained no objective meaning, it might consti-

tute an improper delegation of legislative power to the Judicial Branch,

among other problems. See Touby v. United States, 500 U. S. 160, 165

(1991) (discussing the nondelegation doctrine).

14 GAMBLE v. UNITED STATES

THOMAS, J., concurring

find these treatises conclusive without a stronger showing

that they reflected the understanding of the Fifth

Amendment at the time of ratification. At that time, the

common law certainly had not coalesced around this view,

see ante, at 10–21, and petitioner has not pointed to con-

temporaneous judicial opinions or other evidence estab-

lishing that his view was widely shared. This lack of

evidence, coupled with the unique two-sovereign federalist

system created by our Constitution, leaves petitioner to

rely on a general argument about “liberty.” Ultimately, I

am not persuaded that our precedent is incorrect as an

original matter, much less demonstrably erroneous.

3

Although this case involves a constitutional provision, I

would apply the same stare decisis principles to matters of

statutory interpretation. I am not aware of any legal (as

opposed to practical) basis for applying a heightened

version of stare decisis to statutory-interpretation deci-

sions. Statutes are easier to amend than the Constitution,

but our judicial duty is to apply the law to the facts of the

case, regardless of how easy it is for the law to change. Cf.

Clark v. Martinez, 543 U. S. 371, 402 (2005) (THOMAS, J.,

dissenting) (explaining that “the realities of the legislative

process” will “often preclude readopting the original mean-

ing of a statute that we have upset”). Moreover, to the

extent the Court has justified statutory stare decisis based

on legislative inaction, this view is based on the “patently

false premise that the correctness of statutory construc-

tion is to be measured by what the current Congress de-

sires, rather than by what the law as enacted meant.”

Johnson v. Transportation Agency, Santa Clara Cty., 480

U. S. 616, 671 (1987) (Scalia, J., dissenting). Finally, even

if congressional silence could be meaningfully understood

as acquiescence, it still falls short of the bicameralism and

presentment required by Article I and therefore is not a

Cite as: 587 U. S. ____ (2019) 15

THOMAS, J., concurring

“valid way for our elected representatives to express their

collective judgment.” Nelson 76.

II

For the reasons explained above, the Court’s multifactor

approach to stare decisis invites conflict with its constitu-

tional duty. Whatever benefits may be seen to inhere in

that approach—e.g., “stability” in the law, preservation of

reliance interests, or judicial “humility,” Tr. of Oral Arg.

20, 41–42—they cannot overcome that fundamental flaw.

In any event, these oft-cited benefits are frequently

illusory. The Court’s multifactor balancing test for invok-

ing stare decisis has resulted in policy-driven, “arbitrary

discretion.” The Federalist No. 78, at 471. The inquiry

attempts to quantify the unquantifiable and, by frequently

sweeping in subjective factors, provides a ready means of

justifying whatever result five Members of the Court seek

to achieve. See Holder v. Hall, 512 U. S. 874, 943–944

(1994) (THOMAS, J., concurring in judgment) (describing a

“ ‘totality of circumstances’ ” test as “an empty incanta-

tion—a mere conjurer’s trick”); Lawrence v. Texas, 539

U. S. 558, 577 (2003) (acknowledging that stare decisis is

“ ‘a principle of policy and not a mechanical formula’ ”); see

also Casey, 505 U. S., at 854–856 (invoking the “kind of

reliance that would lend a special hardship to the conse-

quences of overruling and add inequity to the cost of repu-

diation”). These are not legal questions with right and

wrong answers; they are policy choices. See, e.g., A. Gold-

berg, Equal Justice: The Warren Era of the Supreme

Court 96 (1971) (“[T]his concept of stare decisis both justi-

fies the overruling involved in the expansion of human

liberties during the Warren years and counsels against

the future overruling of the Warren Court libertarian

decisions”).

Members of this Court have lamented the supposed

“uncertainty” created when the Court overrules its prece-

16 GAMBLE v. UNITED STATES

THOMAS, J., concurring

dent. See Franchise Tax Bd. of Cal. v. Hyatt, ante, at ___–

___ (BREYER, J., dissenting) (slip op., at 12–13). But see

Lawrence, supra, at 577 (asserting that not overruling

precedent would “caus[e] uncertainty”). As I see it, we

would eliminate a significant amount of uncertainty and

provide the very stability sought if we replaced our malle-

able balancing test with a clear, principled rule grounded

in the meaning of the text.

The true irony of our modern stare decisis doctrine lies

in the fact that proponents of stare decisis tend to invoke it

most fervently when the precedent at issue is least defen-

sible. See, e.g., Holder, supra, at 944–945 (opinion of

THOMAS, J.) (“Stare decisis should not bind the Court to an

interpretation of the Voting Rights Act that was based on

a flawed method of statutory construction from its incep-

tion” and that has created “an irreconcilable conflict”

between the Act and the Equal Protection Clause and

requires “methodically carving the country into racially

designated electoral districts”). It is no secret that stare

decisis has had a “ratchet-like effect,” cementing certain

grievous departures from the law into the Court’s juris-

prudence. Goldberg, supra, at 96. Perhaps the most

egregious example of this illegitimate use of stare decisis

can be found in our “substantive due process” jurispru-

dence. McDonald v. Chicago, 561 U. S. 742, 811 (2010)

(THOMAS, J., concurring in part and concurring in judg-

ment). The Court does not seriously defend the “legal

fiction” of substantive due process as consistent with the

original understanding of the Due Process Clause. Ibid.

And as I have explained before, “this fiction is a particu-

larly dangerous one” because it “lack[s] a guiding principle

to distinguish ‘fundamental’ rights that warrant protec-

tion from nonfundamental rights that do not.” Ibid.

Unfortunately, the Court has doggedly adhered to these

erroneous substantive-due-process precedents again and

again, often to disastrous ends. See, e.g., Stenberg v.

Cite as: 587 U. S. ____ (2019) 17

THOMAS, J., concurring

Carhart, 530 U. S. 914, 982 (2000) (THOMAS, J., dissent-

ing) (“The standard set forth in the Casey plurality has no

historical or doctrinal pedigree” and “is the product of its

authors’ own philosophical views about abortion” with “no

origins in or relationship to the Constitution”). Likewise,

the Court refuses to reexamine its jurisprudence about the

Privileges or Immunities Clause, thereby relegating a

“ ‘clause in the constitution’ ” “ ‘to be without effect.’ ”

McDonald, supra, at 813 (quoting Marbury, 1 Cranch, at

174); see Timbs v. Indiana, 586 U. S. ___, ___ (2019)

(THOMAS, J., concurring in judgment) (criticizing the

Court’s incorporation doctrine through a clause that ad-

dresses procedures). No subjective balancing test can

justify such a wholesale disregard of the People’s individ-

ual rights protected by the Fourteenth Amendment.

* * *

Our judicial duty to interpret the law requires adher-

ence to the original meaning of the text. For that reason,

we should not invoke stare decisis to uphold precedents

that are demonstrably erroneous. Because petitioner and

the dissenting opinions have not shown that the Court’s

dual-sovereignty doctrine is incorrect, much less demon-

strably erroneous, I concur in the majority’s opinion.

Cite as: 587 U. S. ____ (2019) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–646

_________________

TERANCE MARTEZ GAMBLE, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June, 17, 2019]

JUSTICE GINSBURG, dissenting

Terance Martez Gamble pleaded guilty in Alabama

state court to both possession of a firearm by a person

convicted of “a crime of violence” and drug possession, and

was sentenced to ten years’ imprisonment, all but one year

suspended. Apparently regarding Alabama’s sentence as

too lenient, federal prosecutors pursued a parallel charge,

possession of a firearm by a convicted felon, in violation of

federal law. Gamble again pleaded guilty and received

nearly three more years in prison.

Had either the Federal Government or Alabama brought

the successive prosecutions, the second would have violated

Gamble’s right not to be “twice put in jeopardy . . . for the

same offence.” U. S. Const., Amdt. 5, cl. 2. Yet the Federal

Government was able to multiply Gamble’s time in prison

because of the doctrine that, for double jeopardy purposes,

identical criminal laws enacted by “separate sovereigns”

are different “offence[s].”

I dissent from the Court’s adherence to that misguided

doctrine. Instead of “fritter[ing] away [Gamble’s] libert[y]

upon a metaphysical subtlety, two sovereignties,” Grant,

The Lanza Rule of Successive Prosecutions, 32 Colum.

L. Rev. 1309, 1331 (1932), I would hold that the Double

Jeopardy Clause bars “successive prosecutions [for the

same offense] by parts of the whole USA.” Puerto Rico v.

2 GAMBLE v. UNITED STATES

GINSBURG, J., dissenting

Sánchez Valle, 579 U. S. ___, ___ (2016) (GINSBURG, J.,

concurring) (slip op., at 2).

I

A

Gamble urges that the Double Jeopardy Clause incorpo-

rates English common law. That law, he maintains, rec-

ognized a foreign acquittal or conviction as a bar to retrial

in England for the same offense. See Brief for Petitioner

11–15. The Court, in turn, strives mightily to refute

Gamble’s account of the common law. See ante, at 8–21.

This case, however, does not call for an inquiry into

whether and when an 18th-century English court would

have credited a foreign court’s judgment in a criminal

case. Gamble was convicted in both Alabama and the

United States, jurisdictions that are not foreign to each

other. English court decisions regarding the respect due

to a foreign nation’s judgment are therefore inapposite.

B

In United States v. Lanza, 260 U. S. 377 (1922), this

Court held that “an act denounced as a crime by both

national and state sovereignties is an offense against the

peace and dignity of both and may be punished by each.”

Id., at 382. Decades later, a sharply divided Court reaf-

firmed this separate-sovereigns doctrine. Abbate v. United

States, 359 U. S. 187 (1959); Bartkus v. Illinois, 359 U. S.

121 (1959). I would not cling to those ill-advised decisions.

1

Justification for the separate-sovereigns doctrine cen-

ters on the word “offence”: An “offence,” the argument

runs, is the violation of a sovereign’s law, the United

States and each State are separate sovereigns, ergo suc-

cessive state and federal prosecutions do not place a de-

fendant in “jeopardy . . . for the same offence.” Ante, at 1,

3–4 (internal quotation marks omitted).

Cite as: 587 U. S. ____ (2019) 3

GINSBURG, J., dissenting

This “compact syllogism” is fatally flawed. See Braun,

Praying to False Sovereigns: The Rule Permitting Succes-

sive Prosecutions in the Age of Cooperative Federalism, 20

Am. J. Crim. L. 1, 25 (1992). The United States and its

constituent States, unlike foreign nations, are “kindred

systems,” “parts of ONE WHOLE.” The Federalist No. 82,

p. 493 (C. Rossiter ed. 1961) (A. Hamilton). They compose

one people, bound by an overriding Federal Constitution.

Within that “WHOLE,” the Federal and State Govern-

ments should be disabled from accomplishing together

“what neither government [could] do alone—prosecute an

ordinary citizen twice for the same offence.” Amar &

Marcus, Double Jeopardy Law After Rodney King, 95

Colum. L. Rev. 1, 2 (1995).

The notion that the Federal Government and the States

are separate sovereigns overlooks a basic tenet of our

federal system. The doctrine treats governments as sover-

eign, with state power to prosecute carried over from years

predating the Constitution. See Heath v. Alabama, 474

U. S. 82, 89 (1985) (citing Lanza, 260 U. S., at 382). In the

system established by the Federal Constitution, however,

“ultimate sovereignty” resides in the governed. Arizona

State Legislature v. Arizona Independent Redistricting

Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 31); Martin

v. Hunter’s Lessee, 1 Wheat. 304, 324–325 (1816); Braun,

supra, at 26–30. Insofar as a crime offends the “peace and

dignity” of a sovereign, Lanza, 260 U. S., at 382, that

“sovereign” is the people, the “original fountain of all

legitimate authority,” The Federalist No. 22, at 152 (A.

Hamilton); see Note, Double Prosecution by State and

Federal Governments: Another Exercise in Federalism, 80

Harv. L. Rev. 1538, 1542 (1967). States may be separate,

but their populations are part of the people composing the

United States.

In our “compound republic,” the division of authority

between the United States and the States was meant to

4 GAMBLE v. UNITED STATES

GINSBURG, J., dissenting

operate as “a double security [for] the rights of the people.”

The Federalist No. 51, at 323 (J. Madison); see Bond v.

United States, 564 U. S. 211, 221 (2011). The separate-

sovereigns doctrine, however, scarcely shores up people’s

rights. Instead, it invokes federalism to withhold liberty.

See Bartkus, 359 U. S., at 155–156 (Black, J., dissenting).1

It is the doctrine’s premise that each government has—

and must be allowed to vindicate—a distinct interest in

enforcing its own criminal laws. That is a peculiar way to

look at the Double Jeopardy Clause, which by its terms

safeguards the “person” and restrains the government.

See, e.g., id., at 155; United States v. All Assets of G.P.S.

Automotive Corp., 66 F. 3d 483, 498 (CA2 1995) (Calabresi,

J., concurring). The Double Jeopardy Clause embodies a

principle, “deeply ingrained” in our system of justice,

“that the State with all its resources and power should

not be allowed to make repeated attempts to convict

an individual for an alleged offense, thereby subject-

ing him to embarrassment, expense and ordeal and

compelling him to live in a continuing state of anxiety

and insecurity, as well as enhancing the possibility

that even though innocent he may be found guilty.”

Green v. United States, 355 U. S. 184, 187–188 (1957).

“Looked at from the standpoint of the individual who is

being prosecuted,” the liberty-denying potential of succes-

sive prosecutions, when Federal and State Governments

prosecute in tandem, is the same as it is when either

prosecutes twice. Bartkus, 359 U. S., at 155 (Black, J.,

——————

1 The Court writes that federalism “advances individual liberty in

many ways,” but does not always do so. Ante, at 10 (citing, for example,

state prohibition of activities authorized by federal law). The analogy

of the separate-sovereigns doctrine to dual regulation is inapt. The

former erodes a constitutional safeguard against successive prosecu-

tions, while the Constitution contains no guarantee against dual

regulation.

Cite as: 587 U. S. ____ (2019) 5

GINSBURG, J., dissenting

dissenting).

2

I turn, next, to further justifications the Court has

supplied for the separate-sovereigns doctrine. None

should survive close inspection.

a

One rationale emphasizes that the Double Jeopardy

Clause originally restrained only the Federal Government

and did not bar successive state prosecutions. Id., at 124;

Lanza, 260 U. S., at 382; Fox v. Ohio, 5 How. 410, 434–435

(1847). Incorporation of the Clause as a restraint on

action by the States, effected in Benton v. Maryland, 395

U. S. 784 (1969), has rendered this rationale obsolete.

b

Another justification is precedent. In adopting and

reaffirming the separate-sovereigns doctrine, the Court

relied on dicta from 19th-century opinions. See Abbate,

359 U. S., at 190–193; Bartkus, 359 U. S., at 129–132;

Lanza, 260 U. S., at 382–384. The persuasive force of

those opinions is diminished by their dubious reasoning.

See supra, at 2–4. While drawing upon dicta from prior

opinions, the Court gave short shrift to contrary authority.

See Braun, supra, at 20–23.

First, the Framers of the Bill of Rights voted down an

amendment that would have permitted the Federal Gov-

ernment to reprosecute a defendant initially tried by a

State. 1 Annals of Cong. 753 (1789); J. Sigler, Double

Jeopardy: The Development of a Legal and Social Policy

30–31 (1969). But cf. ante, at 4–5. Nevermind that this

amendment failed; the Court has attributed to the Clause

the very meaning the First Congress refrained from

adopting.2

——————

2 The Court sees this history as poor evidence of congressional intent.

6 GAMBLE v. UNITED STATES

GINSBURG, J., dissenting

Second, early American courts regarded with disfavor

the prospect of successive prosecutions by the Federal and

State Governments. In Houston v. Moore, 5 Wheat. 1

(1820), Justice Washington expressed concern that such

prosecutions would be “very much like oppression, if not

worse”; he noted that an acquittal or conviction by one

sovereign “might be pleaded in bar of the prosecution

before the other.” Id., at 23, 31. The Court today follows

Bartkus in distinguishing Justice Washington’s opinion as

addressing only the “strange” situation in which a State

has prosecuted an offense “against the United States.”

Ante, at 24; see Bartkus, 359 U. S., at 130. The distinction

is thin, given the encompassing language in Justice Wash-

ington’s opinion. Justice Story’s dissent, moreover, de-

clared successive prosecutions for the same offense contrary

to “the principles of the common law, and the genius of our

free government.” Houston, 5 Wheat., at 72.

Most of the early state decisions cited by the parties

regarded successive federal-state prosecutions as unac-

ceptable. See Bartkus, 359 U. S., at 158–159 (Black, J.,

dissenting). Only one court roundly endorsed a separate-

sovereigns theory. Hendrick v. Commonwealth, 32 Va.

707, 713 (1834). The Court reads the state-court opinions

as “distin[guishing] between believing successive prosecu-

tions by separate sovereigns unjust and holding them

unlawful.” Ante, at 21. I would not read the Double Jeop-

ardy Clause to tolerate “unjust” prosecutions and believe

early American courts would have questioned the Court’s

distinction. See State v. Brown, 2 N. C. 100, 101 (1794)

——————

See ante, at 4. On another day, the Court looked to the First Congress’

rejection of proposed amendments as instructive. See Cook v. Gralike,

531 U. S. 510, 521 (2001). Moreover, a “compelling” principle of statu-

tory interpretation is “the proposition that Congress does not intend

sub silentio to enact statutory language that it has earlier discarded in

favor of other language.” INS v. Cardoza-Fonseca, 480 U. S. 421, 442–

443 (1987) (internal quotation marks omitted).

Cite as: 587 U. S. ____ (2019) 7

GINSBURG, J., dissenting

(allowing successive prosecutions would be “against natu-

ral justice, and therefore I cannot believe it to be law”).

c

Finally, the Court has reasoned that the separate-

sovereigns doctrine is necessary to prevent either the

Federal Government or a State from encroaching on the

other’s law enforcement prerogatives. Without this doc-

trine, the Court has observed, the Federal Government, by

prosecuting first, could bar a State from pursuing more

serious charges for the same offense, Bartkus, 359 U. S., at

137; and conversely, a State, by prosecuting first, could

effectively nullify federal law, Abbate, 359 U. S., at 195.

This concern envisions federal and state prosecutors work-

ing at cross purposes, but cooperation between authorities

is the norm. See Bartkus, 359 U. S., at 123. And when

federal-state tension exists, successive prosecutions for the

federal and state offenses may escape double-jeopardy

blockage under the test prescribed in Blockburger v. United

States, 284 U. S. 299 (1932). Offenses are distinct, Block-

burger held, if “each . . . requires proof of a fact which the

other does not.” Id., at 304; see Amar, 95 Colum. L. Rev.,

at 45–46 (violation of federal civil rights law and state

assault law are different offenses).

II

The separate-sovereigns doctrine, I acknowledge, has

been embraced repeatedly by the Court. But “[s]tare

decisis is not an inexorable command.” Payne v. Tennes-

see, 501 U. S. 808, 828 (1991). Our adherence to precedent

is weakest in cases “concerning procedural rules that

implicate fundamental constitutional protections.” Alleyne

v. United States, 570 U. S. 99, 116, n. 5 (2013). Gamble’s

case fits that bill. I would lay the “separate-sovereigns”

rationale to rest for the aforesaid reasons and those stated

below.

8 GAMBLE v. UNITED STATES

GINSBURG, J., dissenting

A

First, Benton v. Maryland, 395 U. S. 784, which ren-

dered the double jeopardy safeguard applicable to the

States, left the separate-sovereigns doctrine the sort of

“legal last-man-standing for which we sometimes depart

from stare decisis.” Kimble v. Marvel Entertainment, LLC,

576 U. S. ___, ___ (2015) (slip op., at 11). In adopting and

cleaving to the doctrine, the Court stressed that originally,

the Clause restrained only federal, not state, action. E.g.,

Bartkus, 359 U. S., at 127; Lanza, 260 U. S., at 382; cf.

Abbate, 359 U. S., at 190.

Before incorporation, the separate-sovereigns doctrine

had a certain logic: Without a carve-out for successive

prosecutions by separate sovereigns, the Double Jeopardy

Clause would have barred the Federal Government from

prosecuting a defendant previously tried by a State, but

would not have prevented a State from prosecuting a

defendant previously tried by the Federal Government.

Incorporation changed this. Operative against the States

since 1969, when the Court decided Benton v. Maryland,

395 U. S. 784, the double jeopardy proscription now ap-

plies to the Federal Government and the States alike. The

remaining office of the separate-sovereigns doctrine, then,

is to enable federal and state prosecutors, proceeding one

after the other, to expose defendants to double jeopardy.

The separate-sovereigns doctrine’s persistence contrasts

with the fate of analogous dual-sovereignty doctrines

following application of the rights at issue to the States.

Prior to incorporation of the Fourth Amendment as a

restraint on state action, federal prosecutors were free to

use evidence obtained illegally by state or local officers,

then served up to federal officers on a “silver platter.” See

Elkins v. United States, 364 U. S. 206, 208–214 (1960);

Weeks v. United States, 232 U. S. 383, 398 (1914). Once

the Fourth Amendment applied to the States, abandon-

ment of this “silver platter doctrine” was impelled by

Cite as: 587 U. S. ____ (2019) 9

GINSBURG, J., dissenting

“principles of logic” and the reality that, from the perspec-

tive of the victim of an unreasonable search and seizure, it

mattered not at all “whether his constitutional right ha[d]

been invaded by a federal agent or by a state officer.”

Elkins, 364 U. S., at 208, 215. As observed by Justice

Harlan, Elkins’ abandonment of a separate-sovereigns

exception to the exclusionary rule was at odds with reten-

tion of the separate-sovereigns doctrine for double jeop-

ardy purposes in Abbate and Bartkus. See 364 U. S., at

252.

Similarly, before incorporation of the Fifth Amendment

privilege against self-incrimination, the Court held that

the privilege did not prevent state authorities from com-

pelling a defendant to provide testimony that could in-

criminate him or her in another jurisdiction. Knapp v.

Schweitzer, 357 U. S. 371, 375–381 (1958). After applica-

tion of the self-incrimination privilege to the States, the

Court concluded that its prior position was incompatible

with the “policies and purposes” of the privilege. Murphy

v. Waterfront Comm’n of N. Y. Harbor, 378 U. S. 52, 55, 77

(1964). No longer, the Court held, could a witness “ be

whipsawed into incriminating himself under both state

and federal law even though the constitutional privilege

against self-incrimination is applicable to each.” Id., at 55

(internal quotation marks omitted; emphasis added).

The Court regards incorporation as immaterial because

application of the Double Jeopardy Clause to the States

did not affect comprehension of the word “offence” to mean

the violation of one sovereign’s law. Ante, at 28. But the

Court attributed a separate-sovereigns meaning to “of-

fence” at least in part because the Double Jeopardy Clause

did not apply to the States. See supra, at 5. Incorporation

of the Clause should prompt the Court to consider the

protection against double jeopardy from the defendant’s

perspective and to ask why each of two governments

within the United States should be permitted to try a

10 GAMBLE v. UNITED STATES

GINSBURG, J., dissenting

defendant once for the same offense when neither could

try him or her twice.

B

The expansion of federal criminal law has exacerbated

the problems created by the separate-sovereigns doctrine.

Ill effects of the doctrine might once have been tempered

by the limited overlap between federal and state criminal

law. All Assets of G.P.S. Automotive, 66 F. 3d, at 498

(Calabresi, J., concurring). In the last half century, how-

ever, federal criminal law has been extended pervasively

into areas once left to the States. Guerra, The Myth of

Dual Sovereignty: Multijurisdictional Drug Law Enforce-

ment and Double Jeopardy, 73 N. C. L. Rev. 1159, 1165–

1192 (1995); Brief for Sen. Orrin Hatch as Amicus Curiae

8–14. This new “age of ‘cooperative federalism,’ [in which]

the Federal and State Governments are waging a united

front against many types of criminal activity,” Murphy,

378 U. S., at 55–56, provides new opportunities for federal

and state prosecutors to “join together to take a second

bite at the apple,” All Assets of G.P.S. Automotive, 66

F. 3d, at 498 (Calabresi, J., concurring).3 This situation

might be less troublesome if successive prosecutions oc-

curred only in “instances of peculiar enormity, or where

the public safety demanded extraordinary rigor.” Fox, 5

How., at 435. The run-of-the-mill felon-in-possession

charges Gamble encountered indicate that, in practice,

successive prosecutions are not limited to exceptional

circumstances.

——————

3 Bartkus v. Illinois, 359 U. S. 121 (1959), left open the prospect that

the double jeopardy ban might block a successive state prosecution that

was merely “a sham and a cover for a federal prosecution.” Id., at 123–

124. The Courts of Appeals have read this potential exception narrowly.

See, e.g., United States v. Figueroa-Soto, 938 F. 2d 1015, 1019 (CA9

1991).

Cite as: 587 U. S. ____ (2019) 11

GINSBURG, J., dissenting

C

Against all this, there is little to be said for keeping the

separate-sovereigns doctrine. Gamble’s case “do[es] not

implicate the reliance interests of private parties.” Al-

leyne, 570 U. S., at 119 (SOTOMAYOR, J., concurring). The

closest thing to a reliance interest would be the interest

Federal and State Governments have in avoiding avulsive

changes that could complicate ongoing prosecutions. As

the Court correctly explains, however, overruling the

separate-sovereigns doctrine would not affect large num-

bers of cases. See ante, at 28–29. In prosecutions based

on the same conduct, federal and state prosecutors will

often charge offenses having different elements, charges

that, under Blockburger, will not trigger double jeopardy

protection. See Poulin, Double Jeopardy Protection From

Successive Prosecution: A Proposed Approach, 92 Geo.

L. J. 1183, 1244–1245 (2004); Brief for Criminal Defense

Experts as Amici Curiae 5–11.4

Notably, the Federal Government has endeavored to

reduce the incidence of “same offense” prosecutions. Un-

der the Petite policy adopted by the Department of Jus-

tice,5 the Department will pursue a federal prosecution

——————

4 The Government implies there is tension between Gamble’s position

and Blockburger v. United States, 284 U. S. 299 (1932). Brief for

United States 18–20. But if courts can ascertain how laws enacted by

different Congresses fare under Blockburger, they can do the same for

laws enacted by Congress and a State, or by two States. But cf. Amar

& Marcus, Double Jeopardy Law After Rodney King, 95 Colum. L. Rev.

1, 39 (1995) (“Because different legislatures often do not work from the

same linguistic building blocks, they will not use uniform language to

describe an offence, even when each is indeed outlawing the same crime

with the same elements.”).

5 Formally the “Dual and Successive Prosecution Policy,” the policy is

popularly known by the name of the case in which this Court first took

note of it, Petite v. United States, 361 U. S. 529 (1960) (per curiam).

The policy was adopted “in direct response to” Bartkus and Abbate v.

United States, 359 U. S. 187 (1959). Rinaldi v. United States, 434 U. S.

12 GAMBLE v. UNITED STATES

GINSBURG, J., dissenting

“based on substantially the same act(s) or transaction(s)”

previously prosecuted in state court only if the first prose-

cution left a “substantial federal interest . . . demonstrably

unvindicated” and a Department senior official authorizes

the prosecution. Dept. of Justice, Justice Manual §9–

2.031(A) (rev. July 2009).

At oral argument, the Government estimated that it

authorizes only “about a hundred” Petite prosecutions per

year. Tr. of Oral Arg. 54. But see id., at 65–66 (referring

to the “few hundred successive prosecutions that [the

Government] bring[s] each year”). Some of these prosecu-

tions will not implicate double jeopardy, as the Petite

policy uses a same-conduct test that is broader than the

Blockburger same-elements test. And more than half the

States forbid successive prosecutions for all or some of-

fenses previously resolved on the merits by a federal or

state court. Brief for Criminal Defense Experts as Amici

Curiae 4–5, and n. 2 (collecting statutes); Brief for State of

Texas et al. as Amici Curiae 28–30, and nn. 6–15 (same).

In short, it is safe to predict that eliminating the separate-

sovereigns doctrine would spark no large disruption in

practice.

* * *

The separate-sovereigns doctrine, especially since

Bartkus and Abbate, has been subject to relentless criti-

cism by members of the bench, bar, and academy. Never-

theless, the Court reaffirms the doctrine, thereby dimin-

ishing the individual rights shielded by the Double

Jeopardy Clause. Different parts of the “WHOLE” United

States should not be positioned to prosecute a defendant a

second time for the same offense. I would reverse Gam-

ble’s federal conviction.

——————

22, 28 (1977) (per curiam).

Cite as: 587 U. S. ____ (2019) 1

GORSUCH, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–646

_________________

TERANCE MARTEZ GAMBLE, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 17, 2019]

JUSTICE GORSUCH, dissenting.

A free society does not allow its government to try the

same individual for the same crime until it’s happy with

the result. Unfortunately, the Court today endorses a

colossal exception to this ancient rule against double

jeopardy. My colleagues say that the federal government

and each State are “separate sovereigns” entitled to try

the same person for the same crime. So if all the might of

one “sovereign” cannot succeed against the presumptively

free individual, another may insist on the chance to try

again. And if both manage to succeed, so much the better;

they can add one punishment on top of the other. But this

“separate sovereigns exception” to the bar against double

jeopardy finds no meaningful support in the text of the

Constitution, its original public meaning, structure, or

history. Instead, the Constitution promises all Americans

that they will never suffer double jeopardy. I would en-

force that guarantee.

I

“Fear and abhorrence of governmental power to try

people twice for the same conduct is one of the oldest ideas

found in western civilization.”1 Throughout history, peo-

ple have worried about the vast disparity of power be-

——————

1 Bartkus v. Illinois, 359 U. S. 121, 151 (1959) (Black, J., dissenting).

2 GAMBLE v. UNITED STATES

GORSUCH, J., dissenting

tween governments and individuals, the capacity of the

state to bring charges repeatedly until it wins the result it

wants, and what little would be left of human liberty if

that power remained unchecked. To address the problem,

the law in ancient Athens held that “[a] man could not be

tried twice for the same offense.”2 The Roman Republic

and Empire incorporated a form of double jeopardy protec-

tion in their laws.3 The Old Testament and later church

teachings endorsed the bar against double jeopardy too.4

And from the earliest days of the common law, courts

recognized that to “punish a man twice over for one of-

fence” would be deeply unjust.5

The rule against double jeopardy was firmly entrenched

in both the American colonies and England at the time of

our Revolution.6 And the Fifth Amendment, which prohib-

its placing a defendant “twice . . . in jeopardy of life or

limb” for “the same offence” sought to carry the traditional

common law rule into our Constitution.7 As Joseph Story

put it, the Constitution’s prohibition against double jeop-

ardy grew from a “great privilege secured by the common

law” and meant “that a party shall not be tried a second

time for the same offence, after he has once been convicted,

——————

2 R.

Bonner, Lawyers and Litigants in Ancient Athens 195 (1927).

3 J.

Sigler, Double Jeopardy: The Development of a Legal and Social

Policy 2–3 (1969); Digest of Justinian: Digest 48.2.7.2, translated in 11

S. Scott, The Civil Law 17 (1932).

4 See Bartkus, 359 U. S., at 152, n. 4 (Black, J., dissenting); Z. Brooke,

The English Church and the Papacy 204–205, n. 1 (1931).

5 1 F. Pollock & F. Maitland, The History of English Law 448 (2d ed.

1898).

6 See, e.g., The Massachusetts Body of Liberties of 1641, cl. 42, in The

Colonial Laws of Massachusetts 42–43 (W. Whitmore ed. 1889); 4 W.

Blackstone, Commentaries on the Laws of England 335–336 (5th ed.

1773) (Blackstone, Commentaries); 2 W. Hawkins, Pleas of the Crown

368 (1762) (Hawkins).

7 Ex parte Lange, 18 Wall. 163, 170 (1874). See also Benton v. Mary-

land, 395 U. S. 784, 795–796 (1969); F. Wharton, Criminal Law of the

United States 147 (1846).

Cite as: 587 U. S. ____ (2019) 3

GORSUCH, J., dissenting

or acquitted of the offence charged, by the verdict of a jury,

and judgment has passed thereon for or against him.”8

Given all this, it might seem that Mr. Gamble should

win this case handily. Alabama prosecuted him for violat-

ing a state law that “prohibits a convicted felon from

possessing a pistol” and sentenced him to a year in prison.9

But then the federal government, apparently displeased

with the sentence, charged Mr. Gamble under 18 U. S. C.

§922(g)(1) with being a felon in possession of a firearm

based on the same facts that gave rise to the state prose-

cution. Ultimately, a federal court sentenced him to 46

months in prison and three years of supervised release.

Most any ordinary speaker of English would say that Mr.

Gamble was tried twice for “the same offence,” precisely

what the Fifth Amendment prohibits. Tellingly, no one

before us doubts that if either the federal government or

Alabama had prosecuted Mr. Gamble twice on these facts

and in this manner, it surely would have violated the

Constitution.

So how does the government manage to evade the Fifth

Amendment’s seemingly plain command? On the govern-

ment’s account, the fact that federal and state authorities

split up the prosecutions makes all the difference. Though

the Double Jeopardy Clause doesn’t say anything about

allowing “separate sovereigns” to do sequentially what

neither may do separately, the government assures us the

Fifth Amendment’s phrase “same offence” does this work.

Adopting the government’s argument, the Court supplies

the following syllogism: “[A]n ‘offence’ is defined by a law,

and each law is defined by a sovereign. So where there

are two sovereigns, there are two laws, and two ‘offences.’ ”

——————

83 J. Story, Commentaries on the Constitution of the United States

§1781, p. 659 (1833).

9 Ex parte Taylor, 636 So. 2d 1246 (Ala. 1993); see Ala. Code §§13A–

11–70(2), 13A–11–72(a) (2015).

4 GAMBLE v. UNITED STATES

GORSUCH, J., dissenting

Ante, at 3–4.

But the major premise of this argument—that “where

there are two laws there are ‘two offenses’ ”—is mistaken.

We know that the Constitution is not so easily evaded and

that two statutes can punish the same offense.10 The

framers understood the term “offence” to mean a “trans-

gression.”11 And they understood that the same trans-

gression might be punished by two pieces of positive law:

After all, constitutional protections were not meant to be

flimsy things but to embody “principles that are perma-

nent, uniform, and universal.”12 As this Court explained

long ago in Blockburger v. United States, “where the same

act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other does

not.”13 So if two laws demand proof of the same facts to

secure a conviction, they constitute a single offense under

our Constitution and a second trial is forbidden. And by

everyone’s admission, that is exactly what we have here:

The statute under which the federal government pro-

ceeded required it to prove no facts beyond those Alabama

needed to prove under state law to win its conviction; the

two prosecutions were for the same offense.

That leaves the government and the Court to rest on the

fact that distinct governmental entities, federal and state,

enacted these identical laws. This, we are told, is enough

to transform what everyone agrees would otherwise be the

same offense into two different offenses. But where is that

distinction to be found in the Constitution’s text or origi-

——————

10 Whalenv. United States, 445 U. S. 684, 691–692 (1980).

11 Dictionarium Britannicum (N. Bailey ed. 1730); see also N. Web-

ster, An American Dictionary of the English Language (1828) (defining

an “offense” as including “[a]ny transgression of law, divine or human”).

12 4 Blackstone, Commentaries 3.

13 284 U. S. 299, 304 (1932).

Cite as: 587 U. S. ____ (2019) 5

GORSUCH, J., dissenting

nal public understanding? We know that the framers

didn’t conceive of the term “same offence” in some tech-

nical way as referring only to the same statute. And if

double jeopardy prevents one government from prosecut-

ing a defendant multiple times for the same offense under

the banner of separate statutory labels, on what account

can it make a difference when many governments collec-

tively seek to do the same thing?

The government identifies no evidence suggesting that

the framers understood the term “same offence” to bear

such a lawyerly sovereign-specific meaning. Meanwhile,

Blackstone’s Commentaries explained how “Roman law,”

“Athens,” “the Jewish republic,” and “English Law” ad-

dressed the singular “offence of homicide,” and how the

Roman, Gothic, and ancient Saxon law approached the

singular “offence of arson.”14 Other treatises of the period

contain similar taxonomies of “offences” that are not

sovereign-specific.15 Members of the Continental Con-

gress, too, used the word “offence” in this same way. In

1786, a congressional committee endorsed federal control

over import duties because otherwise “thirteen separate

authorities” might “ordain various penalties for the same

offence.”16 In 1778, the Continental Congress passed a

resolution declaring that a person should not be tried in

state court “for the same offense, for which he had previ-

ous thereto been tried by a Court Martial.”17 And in 1785,

the Continental Congress considered an ordinance declar-

ing that a defendant could “plead a formal Acquital on a

Trial” in a maritime court “for the same supposed Offences,

——————

14 4 Blackstone, Commentaries 176–187, 222.

15 See, e.g., 2 J. Bishop, Commentaries on the Criminal Law §§90–120

(5th ed. 1872) (discussing the singular offense of “burglary” by reference

to the “common law,” English law, and the laws of multiple States).

16 30 Journals of the Continental Congress 440 (J. Fitzpatrick ed.

1934).

17 10 id., at 72 (W. Ford ed. 1908).

6 GAMBLE v. UNITED STATES

GORSUCH, J., dissenting

in a similar Court in one of the other United States.”18 In

all of these examples, early legislators—including many of

the same people who would vote to add the Fifth Amend-

ment to the Bill of Rights just a few years later—

recognized that transgressions of state and federal law

could constitute the “same offence.”

The history of the Double Jeopardy Clause itself sup-

plies more evidence yet. The original draft prohibited

“more than one trial or one punishment for the same

offence.”19 One representative then proposed adding the

words “by any law of the United States” after “same of-

fence.”20 That proposal clearly would have codified the

government’s sovereign-specific view of the Clause’s oper-

ation. Yet, Congress proceeded to reject it.

Viewed from the perspective of an ordinary reader of the

Fifth Amendment, whether at the time of its adoption or

in our own time, none of this can come as a surprise.

Imagine trying to explain the Court’s separate sovereigns

rule to a criminal defendant, then or now. Yes, you were

sentenced to state prison for being a felon in possession of

a firearm. And don’t worry—the State can’t prosecute you

again. But a federal prosecutor can send you to prison

again for exactly the same thing. What’s more, that federal

prosecutor may work hand-in-hand with the same state

prosecutor who already went after you. They can share

evidence and discuss what worked and what didn’t the

first time around. And the federal prosecutor can pursue

you even if you were acquitted in the state case. None of

that offends the Constitution’s plain words protecting a

person from being placed “twice . . . in jeopardy of life or

limb” for “the same offence.” Really?

——————

18 29 id., at 803 (J. Fitzpatrick ed. 1933).

19 1 Annals of Cong. 753 (1789).

20 Ibid.

Cite as: 587 U. S. ____ (2019) 7

GORSUCH, J., dissenting

II

Without meaningful support in the text of the Double

Jeopardy Clause, the government insists that the separate

sovereigns exception is at least compelled by the structure

of our Constitution. On its view, adopted by the Court

today, allowing the federal and state governments to

punish the same defendant for the same conduct “honors

the substantive differences between the interests that two

sovereigns can have” in our federal system. Ante, at 5.

But this argument errs from the outset. The Court

seems to assume that sovereignty in this country belongs

to the state and federal governments, much as it once

belonged to the King of England. But as Chief Justice

Marshall explained, “[t]he government of the Union . . . is

emphatically, and truly, a government of the people,” and

all sovereignty “emanates from them.”21 Alexander Ham-

ilton put the point this way: “[T]he national and State

systems are to be regarded” not as different sovereigns

foreign to one another but “as ONE WHOLE.”22 Under

our Constitution, the federal and state governments are

but two expressions of a single and sovereign people.

This principle resonates throughout our history and law.

State courts that refused to entertain federal causes of

action found little sympathy when attempting the very

separate sovereigns theory underlying today’s decision.23

In time, too, it became clear that federal courts may decide

state-law issues, and state courts may decide federal

questions.24 Even in the criminal context, this Court has

upheld removal of some state criminal actions to federal

court.25 And any remaining doubt about whether the

——————

21 McCulloch v. Maryland, 4 Wheat. 316, 404–405 (1819).

22 The Federalist No. 82, p. 494 (C. Rossiter ed. 1961).

23 See Testa v. Katt, 330 U. S. 386 (1947).

24 Claflin v. Houseman, 93 U. S. 130 (1876).

25 See Tennessee v. Davis, 100 U. S. 257 (1880).

8 GAMBLE v. UNITED STATES

GORSUCH, J., dissenting

States and the federal government are truly separate

sovereigns was ultimately “resolved by war.”26

From its mistaken premise, the Court continues to the

flawed conclusion that the federal and state governments

can successively prosecute the same person for the same

offense. This turns the point of our federal experiment on

its head. When the “ONE WHOLE” people of the United

States assigned different aspects of their sovereign power

to the federal and state governments, they sought not to

multiply governmental power but to limit it. As this Court

has explained, “[b]y denying any one government complete

jurisdiction over all the concerns of public life, federalism

protects the liberty of the individual from arbitrary power.”27

Yet today’s Court invokes federalism not to protect indi-

vidual liberty but to threaten it, allowing two governments

to achieve together an objective denied to each. The Court

brushes this concern aside because “the powers of the

Federal Government and the States often overlap,” which

“often results in two layers of regulation.” Ante, at 10.

But the Court’s examples—taxation, alcohol, and mari-

——————

26 Testa,330 U. S., at 390. The Court tries to make the most of

McCulloch, pointing out that Chief Justice Marshall distinguished

between “ ‘the people of a State’ ” and “ ‘the people of all the States.’ ”

Ante, at 9. But of course our federal republic is composed of separate

governments. My point is that the federal and state governments

ultimately derive their sovereignty from one and the same source; they

are not truly “separate” in the manner of, say, the governments of

England and Portugal. The American people “ ‘split the atom of sover-

eignty,’ ” ante, at 9, to set two levels of government against each other,

not to set both against the people. McCulloch is consistent with that

understanding. In holding that the States could not tax the national

bank, McCulloch sought to ensure that the national and state govern-

ments remained each in its proper sphere; it did not hold that the two

governments could work in concert to abridge the people’s liberty in a

way that neither could on its own.

27 Bond v. United States, 564 U. S. 211, 222 (2011); see also New York

v. United States, 505 U. S. 144, 181 (1992); Alden v. Maine, 527 U. S.

706, 758 (1999); The Federalist No. 51.

Cite as: 587 U. S. ____ (2019) 9

GORSUCH, J., dissenting

juana—involve areas that the federal and state governments

each may regulate separately under the Constitution as

interpreted by this Court. That is miles away from the

separate sovereigns exception, which allows the federal

and state governments to accomplish together what nei-

ther may do separately consistent with the Constitution’s

commands. As Justice Black understood, the Court’s view

today “misuse[s] and desecrat[es] . . . the concept” of fed-

eralism.28 For “it is just as much an affront to . . . human

freedom for a man to be punished twice for the same

offense” by two parts of the people’s government “as it

would be for one . . . to throw him in prison twice for the

offense.”29

III

A

If the Constitution’s text and structure do not supply

persuasive support for the government’s position, what

about a more thorough exploration of the common law

from which the Fifth Amendment was drawn?

By 1791 when the Fifth Amendment was adopted, an

array of common law authorities suggested that a prosecu-

tion in any court, so long as the court had jurisdiction over

the offense, was enough to bar future reprosecution in

another court. Blackstone, for example, reported that an

acquittal “before any court having competent jurisdiction

of the offence” could be pleaded “in bar of any subsequent

accusation for the same crime.”30 For support, Blackstone

pointed to Beak v. Tyrhwhit,31 a 1688 case in which the

reporter described an acquittal in a foreign country fol-

lowed by an attempted second prosecution in England that

the court held impermissible. Another treatise by William

——————

28 Bartkus, 359 U. S., at 155 (dissenting opinion).

29 Abbate v. United States, 359 U. S. 187, 203 (1959) (same).

30 4 Blackstone, Commentaries 335, and n. j.

31 3 Mod. 194, 87 Eng. Rep. 124 (K. B.).

10 GAMBLE v. UNITED STATES

GORSUCH, J., dissenting

Hawkins likewise considered it “settled” as early as 1716

“[t]hat an Acquittal in any Court whatsoever, which has a

Jurisdiction of the Cause, is as good a Bar of any subse-

quent Prosecution for the same Crime.”32

What these authorities suggest many more confirm.

Henry Bathurst’s 1761 treatise on evidence taught that “a

final Determination in a Court having competent Jurisdic-

tion is conclusive in all Courts of concurrent Jurisdic-

tion.”33 Nor was this merely a rule about the competency

of evidence, as the next sentence reveals: “If A. having

killed a Person in Spain was there prosecuted, tried, and

acquitted, and afterwards was indicted here [in England],

he might plead the Acquittal in Spain in Bar.”34 Francis

Buller’s 1772 treatise repeated the same rule, articulating

it the same way.35 And to illustrate their point, both

treatises cited the 1678 English case of King v.

Hutchinson. Although no surviving written report of

Hutchinson remains, several early common law cases—

including Beak v. Thyrwhit,36 Burrows v. Jemino,37 and

King v. Roche38—described its holding in exactly the same

way the treatise writers did: All agreed that it barred the

retrial in England of a defendant previously tried for

murder in Spain or Portugal.

When they envisioned the relationship between the

national government and the States under the new Con-

stitution, the framers sometimes referenced by way of

comparison the relationship between Wales, Scotland, and

——————

32 2 Hawkins §10, at 372 (emphasis added).

33 H. Bathurst, Theory of Evidence 39.

34 Ibid.

35 F. Buller, An Introduction to the Law Relative to Trials at Nisi

Prius 241.

36 3 Mod. 194, 87 Eng. Rep. 124, sub nom. Beake v. Tyrrell, 1 Show. K.

B. 6, 89 Eng. Rep. 411, sub nom. Beake v. Tirrell, Comb. 120, 90 Eng.

Rep. 379.

37 2 Str. 733, 93 Eng. Rep. 815 (K. B. 1726)

38 1 Leach 134, 168 Eng. Rep. 169 (K. B. 1775).

Cite as: 587 U. S. ____ (2019) 11

GORSUCH, J., dissenting

England.39 And prosecutions in one of these places pretty

plainly barred subsequent prosecutions for the same

offense in the others. So, for example, treatises explained

that “an Acquittal of Murder at a Grand Sessions in

Wales, may be pleaded to an Indictment for the same

Murder in England. For the Rule is, That a Man’s Life

shall not be brought into Danger for the same Offence

more than once.”40 Indeed, when an English county in-

dicted a defendant “for a murder committed . . . in Wales,”

it was barred from proceeding when the court learned that

the defendant had already been tried and acquitted “of the

same offence” in Wales.41

Against this uniform body of common law weighs Gage

v. Bulkeley—a civil, not criminal, case from 1744 that

suggested Hutchinson had held only that the English

courts lacked jurisdiction to try a defendant for an offense

committed in Portugal. Because “the murder was commit-

ted in Portugal,” Gage argued, “the Court of King’s Bench

could not indict him, and there was no method of trying

him but upon a special commission.”42 But no one else—

not the treatise writers or the other English cases that

favorably cited Hutchinson—adopted Gage’s restrictive

reading of that precedent.

In the end, then, it’s hard to see how anyone consulting

the common law in 1791 could have avoided this conclu-

sion: While the issue may not have arisen often, the great

weight of authority indicated that successive prosecutions

by different sovereigns—even sovereigns as foreign to each

——————

39 See, e.g., A. Amar, America’s Constitution: A Biography 45 (2005);

The Federalist No. 5, pp. 50–51; The Federalist No. 17; Jay, An Address

to the People of the State of New York, in Pamphlets on the Constitu-

tion of the United States 84 (P. Ford ed. 1788).

40 2 Hawkins §10, at 372.

41 King v. Thomas, 1 Lev. 118, 83 Eng. Rep. 326 (K. B. 1664).

42 Gage v. Bulkeley, Ridg. t. H. 263, 270–271, 27 Eng. Rep. 824, 827.

(1794).

12 GAMBLE v. UNITED STATES

GORSUCH, J., dissenting

other as England and Portugal—were out of bounds. And

anyone familiar with the American federal system likely

would have thought the rule applied with even greater

force to successive prosecutions by the United States and a

constituent State, given that both governments derive

their sovereignty from the American people.

Unable to summon any useful preratification common

law sources of its own, the government is left to nitpick

those that undermine its position. For example, the Court

dismisses Beak because “Hutchinson is discussed only in

the defendant’s argument in that case, not the court’s

response.” Ante, at 16. But the Beak court did not reject

the Hutchinson argument, and counsel’s use of the case

sheds light on how 17th- and 18th-century lawyers under-

stood the double jeopardy bar. The Court likewise derides

King v. Thomas as “totally irrelevant” because in the 17th

century, Wales and England shared the same laws. But

our federal and state governments share the same funda-

mental law and source of authority, and the Wales exam-

ple is at least somewhat analogous to our federal system.43

Finally, the Court complains that Roche’s footnote citing

Hutchinson was added only in 1800, after the Fifth

Amendment’s ratification. Ante, at 16. But that is hardly

a point for the government, because even so it provides an

example of a later reporter attempting to describe the pre-

existing state of the law; nor, as it turns out, was the

footnote even essential to the Roche court’s original analy-

sis and conclusion reached in 1775, well before the Fifth

Amendment’s ratification.44 And among all these com-

——————

43 Indeed, though England ruled Wales at the time, a contemporane-

ous lawyer might have thought that Wales’ authority to prosecute a

defendant derived at least in part from its earlier status as “an absolute

and undependent Kingdom” rather than purely from authority delegated

by England. 1 Keb. 663, 83 Eng. Rep. 1172 (K. B. 1663); see United

States v. Lara, 541 U. S. 193, 210 (2004).

44 Indeed, everything that matters was contained in the 1775 version

Cite as: 587 U. S. ____ (2019) 13

GORSUCH, J., dissenting

plaints, we should not lose the forest for the trees. The

Court’s attempts to explain away so many uncomfortable

authorities are lengthy, detailed, even herculean. But in

the end, neither it nor the government has mustered a

single preratification common law authority approving a

case of successive prosecutions by separate sovereigns for

the same offense.

B

What we know about the common law before the Fifth

Amendment’s ratification in 1791 finds further confirma-

tion in how later legal thinkers in both England and

America described the rule they had inherited.

Start with England. As it turns out, “it would have been

difficult to have made more than the most cursory exami-

nation of nineteenth century or later English treatises or

digests without encountering” the Hutchinson rule.45 In

1802, a British treatise explained that “an acquittal on a

criminal charge in a foreign country may be pleaded in bar

of an indictment for the same offence in England.”46 Three

——————

of the Roche case report. Roche was indicted in England for a murder

committed in South Africa. “To this indictment Captain Roche pleaded

Autrefois acquit.” Roche, 1 Leach 134, 168 Eng. Rep. 169. In response,

the prosecution asked the court to charge the jury both with “this issue

[the plea of autrefois acquit], and that of Not guilty.” Ibid. The court

rejected that proposal, reasoning that “if the first finding was for the

prisoner, they could not go to the second, because that finding would be

a bar.” Ibid. Far from saying “absolutely nothing” about double jeop-

ardy, ante, at 16, Roche is a serious problem for the government be-

cause it explicitly recognizes that a successful plea of autrefois acquit,

even one based on a foreign conviction, would bar a prosecution in

England. But the Court ignores this, focusing instead on the missing

explanatory citation to Hutchinson that was, in any event, added

shortly thereafter.

45 Grant, Successive Prosecutions by State and Nation: Common Law

and British Empire Comparisons, 4 UCLA L. Rev. 1, 9–11 (1956)

(footnotes omitted).

46 2 L. MacNally, Rules of Evidence on Pleas of the Crown 428 (1802);

14 GAMBLE v. UNITED STATES

GORSUCH, J., dissenting

decades later, another treatise observed (citing

Hutchinson) that “[a]n acquittal by a competent jurisdic-

tion abroad is a bar to an indictment for the same offence

before any other tribunal.”47 In 1846, the Scottish High

Court of Justiciary declared that “[i]f a man has been tried

for theft in England, we would not try him again here.”48

Twentieth century treatises recited the same rule.49 In

1931, the American Law Institute stated that “[i]f a person

has been acquitted in a court of competent jurisdiction for

an offense in another country he may not be tried for the

same offense again in an English Court.”50 And in 1971,

an English judge explained that the bar on “double jeop-

ardy . . . has always applied whether the previous convic-

tion or acquittal based on the same facts was by an Eng-

lish court or by a foreign court.”51 The Court today ask

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