"Letters to the Editor"
The Wall Street Journal
You say, “For 170 years U.S. courts have let federal and state governments prosecute the same criminal offense under the principle of dual sovereignty.” It is not surprising that this gives rise to violations of the Fifth Amendment prohibition of double jeopardy. However, the origin of the problem lies elsewhere. If both federal and State governments have passed legislation concerning the same matters, this violates the most fundamental principle of the Constitution that each level of government is only concerned with issues relevant to its own powers.
The Tenth Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In these terms, as Madison said, the matters concerning federal authority are few and defined, while those left to the States are many and indefinite. It is not a system where federal law should involve powers not “delegated” to it, or State law should involve powers “prohibited” to the States by the Constitution, or reserved to the people. “Dual sovereignty” it itself a sophistry, since there is only one sovereign in America, the People.
But the Constitutional system, whose wisdom was appreciated by all at the time, has been destroyed; and it is generally believed, and advocated openly by many, that Congress can legislate in any matter that it has a mind to. Violating double jeopardy should not be a question of prosecutorial discretion. The existence of such abuse is the clearest sign that something has gone terribly wrong with American government. Madison and Jefferson would have had no difficulty identifying what that is; yet we have become ignorant and complacent servants of a tyrannical system, in general no longer even able to recognize or articulate its failures.
Kelley L. Ross, Ph.D.