(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 doctrine, 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 Eleventh Circuit affirmed. 

Held: This Court declines to overturn the longstanding dualsovereignty 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 “offence” 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 “offences.” Gamble attempts to show from the Clause’s drafting history 

that Congress must have intended to bar successive prosecutions regardless 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 prosecution that followed one by a State. This Court applied that precedent 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 common-law rights that the Double Jeopardy Clause was originally understood 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 decisions on which Gamble relies was “dubious” due to “confused and inadequate reporting.” Bartkus, 359 U. S., at 128, n. 9. On closer inspection, 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 position 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 dualsovereignty 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 theoretical 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. Gamble 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 dualsovereignty 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, Washington, 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 offence.” 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” doctrine, 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; pointing 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, Alabama, 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 possession 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 denied 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. Although the dual-sovereignty rule is often dubbed an “exception” 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 Dictionary 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 offense 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 episode 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 regardless 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 

—————— 

2Gamble 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 transgression of law, divine or human; a crime; sin; act of wickedness or omission 

of duty.” 2 N. Webster, An American Dictionary of the English Language (1828). But the question is what “offence” meant in legal contexts. 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 interpretation 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 conjecture would prevail. The Government notes that the Declaration of Independence denounced King George III for 

“protecting [British troops] by a mock Trial, from punishment 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 Parliament after the Boston Massacre,” Amar, Sixth Amendment 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 circumvention 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 prosecutions here would soon give us an Amendment allowing 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 dualsovereignty 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 differences 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 prosecutions 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 consequences 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 Amendment 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 interests 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 committed 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 violence 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 prosecuted 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 country’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 scholarship. Such interests might also give us a stake in punishing 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) (bombings). 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 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”). 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 consideration or persuasive reason not presented to the Court in the 

prior cases” for disturbing our “firmly established” doctrine. 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 independence, they claimed the powers inherent in sovereignty 

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

sovereign powers of the States, which retained ‘a residuary 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. Ashcroft, 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; between the “sovereignty which the people of a single state 

possess” and the sovereign powers “conferred by the people 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 authoritative 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 fundamentally 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 uncommon 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 prohibits, 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 expense of other interests. And it is thus quite extraordinary to say that the venerable dual-sovereignty doctrine 

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

(opinion of GORSUCH, J.). 
 

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Opinion of the Court 

III 

Gamble claims that our precedent contradicts the commonlaw 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., dissenting). 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 ratified 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 something more than “ambiguous historical evidence” is required 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 historical arguments must overcome numerous “major decisions 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. Treatises 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 prosecution 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 decision 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 prosecution 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 happened 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 Portugal, 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 commission that would have issued pursuant to a statute enacted

under Henry VIII.4 The commission lacked jurisdiction, 

—————— 

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

281–282 (1986). 4Although 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 Dominions.” 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 acquittal 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 administers 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 indirect 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. 5See 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 comment.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 Gamble’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 different sovereign. Id., at 263–264, 27 Eng. Rep., at 824. 

—————— 

6See 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 Chancellor 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-

—————— 

7 4 Blackstone 262. 

8This 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. Indeed, 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. Friedland, 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 accounts 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 founding saw Hutchinson as Gamble does, provides a modicum

of support for Gamble’s argument. But that support softens just a few lines down in the report, where the Chancellor discusses the status of foreign judgments in courts 

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

—————— 

9This 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 commonlaw 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 nothing; 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 

—————— 

10This 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 prosecution; 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, making 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 decision in which a foreign judgment was held to be binding in

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

—————— 

11This 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 Peninsula, 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 admiralty) 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 Amendment, 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 competent 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, Criminal Pleading 300–301, n. h (1814). And a third discusses 

not a single case involving a prior prosecution under foreign 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 considering 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 uniformly accepted in this country12) provides no direct support for Gamble since his prior judgment was one of conviction, 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-

—————— 

12Compare 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 historically 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 Members 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 Amendment 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 19thcentury 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 prosecutions by separate sovereigns unjust and holding them 

—————— 

13See, 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 committed against the laws there.” Ibid. Far from undermining the dual-sovereignty rule, Brown expressly affirms it,

rejecting outright the idea that a judgment in one sovereign’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 explained, 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 question, 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) (punishment 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 decisions 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 militia. See Houston v. Moore, 5 Wheat. 1 (1820). The ac-

—————— 

14As 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 prosecution 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 jurisdiction 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 sanctions for violation of a federal criminal law. As he 

viewed the matter, the two trials would not be of similar 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 violation of the very statute whose violation by the same

conduct has already been tried in the courts of another 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 prosecuting 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 general 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 preemptively 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 nations,” is “punished by all.”15 Ending his quotation from 

—————— 

15Piracy was 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 offense. 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 robbery 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 impression 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 sovereigns. 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 punishment 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 argument, his refrain is “incorporation.” In Gamble’s telling, 

the recognition of the Double Jeopardy Clause’s incorporation 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 unreasonable searches and seizures.16 We have long enforced 

this right by barring courts from relying on evidence gathered 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 

—————— 

16He 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 applied 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 doctrine was gone. See Elkins, 364 U. S., at 213 (“The foundation upon which the admissibility of state-seized evidence 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 doctrine 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 invokes 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 prosecutions 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 dualsovereignty rule would do little to trim the reach of federal 

criminal law, and it would not even prevent many successive 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 Blockburger 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 Congress’ 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-

—————— 

1As 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., dissenting) (slip op., at 3), and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of 

respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous 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 exercises “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 precedent. 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 perceived integrity of the judicial process.” Payne v. Tennessee, 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 Judiciary—with systematically developing the laws that govern

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

—————— 

2My focus in this opinion is on this Court’s adherence to its own precedents. 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 constitutional 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 particular “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 legislate). 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 unambiguous; 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 “expound” 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 implications 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 authoritative 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 followed, 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, Commentaries on American Law 439 (1826) (Kent); see id., at 

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

—————— 

3Our 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 selfevident, 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 accepted 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 preferences 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 principles 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 commonlaw 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 federal 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 Powers” 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 written 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, precedent 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 erroneous—i.e., one that is not a permissible interpretation of 

—————— 

4There 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 demonstrably incorrect judicial decision, by contrast, is 

tantamount to making law, and adhering to it both disregards 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 supremacy 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 requirement that all judicial officers, executive officers, Congressmen, 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 mandate that judicial officers swear to uphold judicial precedents. 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 Constitution, 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 interpretations of the Constitution because those prior decisions 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 privilege a demonstrably erroneous interpretation of the Constitution 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 pleasure” for the law. The Federalist No. 78, at 468; see id., at 

—————— 

5Congress 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 commands, discretion terminates” because continued adherence to “palpable error” is a “violation of duty, an usurpation”); Commonwealth v. Posey, 8 Va. 109, 116 (1787)

(opinion of Tazewell, J.) (“[A]lthough I venerate precedents, I venerate the written law more”). Thus, no “‘special justification’” is needed for a federal court to depart

from its own, demonstrably erroneous precedent. Halliburton 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 constitutional 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 

—————— 

6 I 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 understanding 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 disputed 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 meaning “by a series of particular discussions and adjudications”). 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 reasonable people may therefore arrive at different conclusions 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 interpretations 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 decisis permits courts to constitutionally adhere to that interpretation, even if a later court might have ruled another

way as a matter of first impression. Of course, a subsequent 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

___ U. S. ___, 358–371 ( ) (THOMAS, J., concurring in judgment) (concluding that the “historical evidence from the 

framing” supports the view that the First Amendment 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 ambiguous—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 interpretations 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 presents 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 constitute 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 contemporaneous judicial opinions or other evidence establishing 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 decisions. 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 meaning 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 construction is to be measured by what the current Congress desires, 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 constitutional 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 invoking 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 incantation—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 consequences of overruling and add inequity to the cost of repudiation”). These are not legal questions with right and 

wrong answers; they are policy choices. See, e.g., A. Goldberg, Equal Justice: The Warren Era of the Supreme 

Court 96 (1971) (“[T]his concept of stare decisis both justifies 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 malleable 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 defensible. 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 inception” 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 jurisprudence. Goldberg, supra, at 96. Perhaps the most

egregious example of this illegitimate use of stare decisis 

can be found in our “substantive due process” jurisprudence. McDonald v. Chicago, 561 U. S. 742, 811 (2010) 

(THOMAS, J., concurring in part and concurring in judgment). 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 particularly dangerous one” because it “lack[s] a guiding principle 

to distinguish ‘fundamental’ rights that warrant protection 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., dissenting) (“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 addresses procedures). No subjective balancing test can

justify such a wholesale disregard of the People’s individual rights protected by the Fourteenth Amendment. 

* * * 

Our judicial duty to interpret the law requires adherence 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 demonstrably 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 incorporates English common law. That law, he maintains, recognized 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 reaffirmed 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 centers 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 successive state and federal prosecutions do not place a defendant 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 Successive 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 Governments 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 sovereign, 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 separatesovereigns 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 subjecting 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 successive 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., 

—————— 

1The 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 prosecutions, 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 Government 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 

—————— 

2The 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 Washington’s opinion. Justice Story’s dissent, moreover, declared 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 unacceptable. See Bartkus, 359 U. S., at 158–159 (Black, J., 

dissenting). Only one court roundly endorsed a separatesovereigns theory. Hendrick v. Commonwealth, 32 Va. 

707, 713 (1834). The Court reads the state-court opinions 

as “distin[guishing] between believing successive prosecutions by separate sovereigns unjust and holding them

unlawful.” Ante, at 21. I would not read the Double Jeopardy 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 statutory 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 natural justice, and therefore I cannot believe it to be law”). 

c 

Finally, the Court has reasoned that the separatesovereigns doctrine is necessary to prevent either the

Federal Government or a State from encroaching on the 

other’s law enforcement prerogatives. Without this doctrine, 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 working 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, Blockburger 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. Tennessee, 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 rendered 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 applies 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, abandonment 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 perspective 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 retention of the separate-sovereigns doctrine for double jeopardy 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 compelling a defendant to provide testimony that could incriminate him or her in another jurisdiction. Knapp v. 

Schweitzer, 357 U. S. 371, 375–381 (1958). After application 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 “offence” 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, however, federal criminal law has been extended pervasively 

into areas once left to the States. Guerra, The Myth of 

Dual Sovereignty: Multijurisdictional Drug Law Enforcement 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 occurred 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.” Alleyne, 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 numbers 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. Under the Petite policy adopted by the Department of Justice,5 the Department will pursue a federal prosecution 

—————— 

4The 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.”). 5Formally 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 prosecution 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 prosecutions 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 offenses 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 separatesovereigns doctrine would spark no large disruption in 

practice. 

* * * 

The separate-sovereigns doctrine, especially since 

Bartkus and Abbate, has been subject to relentless criticism by members of the bench, bar, and academy. Nevertheless, the Court reaffirms the doctrine, thereby diminishing 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 Gamble’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 enforce 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, people 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 protection 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 offence” 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 prohibits 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 jeopardy 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, 

—————— 

2R. 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). 

4See 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). 6See, 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. Maryland, 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 violating 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 prosecution. 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 government’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.’” 

—————— 

8 3 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 “transgression.”11 And they understood that the same transgression 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 permanent, 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 proceeded 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 Whalen v. United States, 445 U. S. 684, 691–692 (1980). 11Dictionarium Britannicum (N. Bailey ed. 1730); see also N. Webster, 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 technical way as referring only to the same statute. And if 

double jeopardy prevents one government from prosecuting 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 collectively 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” addressed 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 Congress, 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 previous thereto been tried by a Court Martial.”17 And in 1785, 

the Continental Congress considered an ordinance declaring 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. 

15See, 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 Amendment 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 supplies 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 offence.”20 That proposal clearly would have codified the 

government’s sovereign-specific view of the Clause’s operation. 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 Hamilton 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). 22The Federalist No. 82, p. 494 (C. Rossiter ed. 1961). 

23See Testa v. Katt, 330 U. S. 386 (1947). 24 Claflin v. Houseman, 93 U. S. 130 (1876). 25See 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 individual 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 sovereignty,’ ” 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 governments 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 neither 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 federalism.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 prosecution 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 followed 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 subsequent 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 Jurisdiction is conclusive in all Courts of concurrent Jurisdiction.”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— 

36 37 including Beak v. Thyrwhit, Burrows v. Jemino, 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 Constitution, the framers sometimes referenced by way of

comparison the relationship between Wales, Scotland, and 

—————— 

32 2 Hawkins §10, at 372 (emphasis added). 

33H. Bathurst, Theory of Evidence 39. 

34 Ibid. 

35F. 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 indicted 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 committed 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 conclusion: 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 

—————— 

39See, 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 Constitution 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 understood 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 fundamental law and source of authority, and the Wales example 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 preexisting state of the law; nor, as it turns out, was the 

footnote even essential to the Roche court’s original analysis 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 contemporaneous 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 confirmation 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 examination 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 jeopardy, ante, at 16, Roche is a serious problem for the government because 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. 45Grant, 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 jurisdiction 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 jeopardy . . . has always applied whether the previous conviction or acquittal based on the same facts was by an English court or by a foreign court.”51 The Court today asks us 

to assume that all these legal authorities misunderstood 

the common law’s ancient rule. I would not. 

—————— 

see also 1 T. Starkie, Criminal Pleading 300–301, n. h (1814); 1 J. 

Chitty, Criminal Law 458 (2d ed. 1816). 47 J. Archbold, Pleading and Evidence in Criminal Cases 89 (5th ed. 

1834). Many more authorities are to the same effect. See, e.g., 1 Encyc. 

of the Laws of England, Autrefois aquit, 424–425 (A. Renton ed. 1897); 

2 J. Gabbett, Criminal Law 334 (1843); 2 E. Deacon, Digest of the 

Criminal Law of England 931 (1831); R. Matthews, Digest of Criminal

Law 26 (1833); H. Nelson, Private International Law 368, n. y (1889); 1 

W. Russell, Crimes and Indictable Misdemeanors 471–472 (2d ed. 

1826); H. Woolrych, Criminal Law 129 (1862); 2 M. Hale, Pleas of the 

Crown 255 (1st Am. ed., S. Emlyn ed. 1847); H. Smith, Roscoe on the 

Law of Evidence 199 (8th ed. 1874). 48 Her Majesty’s Advocate v. MacGregor, (1846) Ark. 49, 60. 49A. Gibb, International Law of Jurisdiction in England and Scotland

285–286 (1926); A. Gibson & A. Weldon, Criminal and Magisterial Law

225 (7th ed. 1919); S. Harris, Criminal Law 377 (9th ed. 1901); C.

Kenny, Outlines of Criminal Law 469 (10th ed. 1920); H. Cohen, Roscoe

on the Law of Evidence 172 (13th ed. 1908). 50ALI, Administration of Criminal Law §16, p. 129 (Proposed Final

Draft, Mar. 18, 1935). 51 Regina v. Treacy, [1971] A. C. 537, 562, 2 W. L. R. 112, 125 (opinion 

of Diplock, L. J.) (citing Roche, 1 Leach 134, 168 Eng. Rep. 169). 
 

 

 

 

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

GORSUCH, J., dissenting 

Even more pertinently, consider how 18th-century 

Americans understood the double jeopardy provision they 

had adopted. The legal treatises an American lawyer

practicing between the founding and the Civil War might

have consulted uniformly recited the Hutchinson rule as 

black letter law. Chancellor Kent wrote that “the plea of 

autrefois acquit, resting on a prosecution [in] any civilized 

state, would be a good plea in any other civilized state.”52 

Thomas Sergeant explained that “[w]here the jurisdiction

of the United States court and of a state Court is concurrent, the sentence of either court, whether of conviction or 

acquittal, may be pleaded in bar to a prosecution in the

other.”53 William Rawle echoed that conclusion in virtually

identical words.54 Indeed, one early commentator wrote

that a “principal reason” for the Double Jeopardy Clause 

was to prevent successive state and federal prosecutions,

which he considered to be against “[n]atural justice.”55 

Nor did these treatises purport to invent a new rule; they

claimed only to recite the traditional one. 

This Court’s early decisions reflected the same principle.

In Houston v. Moore, a Pennsylvania court-martial tried a

member of the state militia for desertion under an “act of 

the legislature of Pennsylvania.”56 The defendant objected

that the state court-martial lacked jurisdiction because

federal law criminalized the same conduct and prosecuting

him in the state court could thus expose him to double

jeopardy. In an opinion by Justice Washington, the Court 

disagreed and allowed the prosecution, but reassured the

defendant that “if the jurisdiction of the two Courts be 

concurrent, the sentence of either Court, either of convic-

—————— 

52 1 Commentaries on American Law 176 (1826). 

53Constitutional Law 278 (1830). 

54View of the Constitution 191 (1825). 

55 J. Bayard, Brief Exposition of the Constitution of the United States 

150–151 (1845). 56 5 Wheat. 1, 12 (1820). 
 

 

16 GAMBLE v. UNITED STATES 

GORSUCH, J., dissenting 

tion or acquittal, might be [later] pleaded in bar of the 

prosecution before the other.”57 In dissent, Justice Story 

thought the state court lacked jurisdiction because otherwise the defendant would be “liable to be twice tried and 

punished for the same offence, against the manifest intent

of the act of Congress, the principles of the common law,

and the genius of our free government.”58 But notice the 

point of agreement between majority and dissent: Both 

acknowledged that a second prosecution for the same

underlying offense would be prohibited even if brought by 

a separate government.59 

Another case decided the same year also reflected the 

Hutchinson rule. In United States v. Furlong, one British 

subject killed another on the high seas, and the killer was

indicted in an American federal court for robbery and 

murder. This Court unanimously held that “[r]obbery on

the seas is considered as an offence within the criminal 

jurisdiction of all nations” that can therefore be “punished 

by all,” and there can be “no doubt that the plea of autre 

fois acquit [double jeopardy] would be good in any civilized 

State, though resting on a prosecution instituted in the 

Courts of any other civilized State.”60 

—————— 

57 Id., at 31. 58 Id., at 72. 59The Court insists that Houston involved an unusual state statute 

that “imposed state sanctions for violation of a federal criminal law.” 

Ante, at 23. But so what? Everyone involved in Houston agreed that 

the defendant had been tried by a Pennsylvania court, under a Pennsylvania statute, passed by the Pennsylvania Legislature. And though 

there were separate sovereigns with separate laws, everyone agreed

there was only one offense. 60 5 Wheat. 184, 197 (1820). To be sure, Furlong proceeded to indicate that an acquittal for murder in an American court would not have 

prohibited a later prosecution in a British court in this case. But that 

was only because the British courts would not have recognized the 

jurisdiction of an American court to try a murder committed by a 

British subject on the high seas. Furlong’s discussion is therefore 

perfectly consistent with the Hutchinson principle—a rule that applied 
Cite as: 587 U. S. ____ (2019) 17 

GORSUCH, J., dissenting 

A number of early state cases followed the same rule. 

Indeed, the Court today acknowledges that Massachusetts, Michigan, and Vermont all followed Hutchinson. 

Ante, at 22.61 The Court agrees that South Carolina did 

too,62 but it believes that a later South Carolina case 

might have deviated from the Hutchinson rule. That 

decision, however, contains at best only “an inconclusive

discussion coming from a State whose highest court had 

previously stated unequivocally that a bar against double 

prosecutions would exist.”63 

In the face of so much contrary authority, the Court 

winds up leaning heavily on a single 1794 North Carolina 

Superior Court decision, State v. Brown. But the Court’s 

choice here is revealing. True, Brown said that a verdict 

in North Carolina would not be “pleadable in bar to an

indictment preferred against [the defendant] in the Territory South of the Ohio.”64 But the Court leaves out what 

happened next. Brown went on to reject concurrent jurisdiction because trying the defendant “according to the 

several laws of each State” could result in him being

“cropped in one, branded and whipped in another, imprisoned in a third, and hanged in a fourth; and all for one and 

the same offence.”65 The North Carolina court viewed that 

result as “against natural justice” and “therefore [could] 

not believe it to be law.”66 So it is that the principal support the Court cites for its position is a state case that both 

—————— 

only when both courts had “competent jurisdiction of the offence” and

could actually place the defendant in jeopardy. See 4 Blackstone, 

Commentaries 365. 61Citing Commonwealth v. Fuller, 49 Mass. 313, 318 (1844); Harlan 

v. People, 1 Doug. 207, 212 (Mich. 1843); State v. Randall, 2 Aik. 89 (Vt.

1827). 62 State v. Antonio, 7 S. C. L. 776 (1816). 63 Bartkus, 359 U. S., at 158–159 (Black, J., dissenting). 64 2 N. C. 100, 101. 

65 Ibid. (emphasis added). 66 Ibid. 
 

 

18 GAMBLE v. UNITED STATES 

GORSUCH, J., dissenting 

(1) regarded transgressions of the laws of a State and a

U. S. territory as the “same offence,” and (2) expressed 

aversion at the thought of both jurisdictions punishing the

defendant for that singular offense.67 

IV 

With the text, principles of federalism, and history now 

arrayed against it, the government is left to suggest that 

we should retain the separate sovereigns exception under

the doctrine of stare decisis. But if that’s the real basis for 

today’s result, let’s at least acknowledge this: By all appearances, the Constitution as originally adopted and

understood did not allow successive state and federal 

prosecutions for the same offense, yet the government

wants this Court to tolerate the practice anyway. 

Stare decisis has many virtues, but when it comes to 

enforcing the Constitution this Court must take (and

always has taken) special care in the doctrine’s application. After all, judges swear to protect and defend the 

Constitution, not to protect what it prohibits. And while 

we rightly pay heed to the considered views of those who 

have come before us, especially in close cases, stare decisis 

isn’t supposed to be “the art of being methodically ignorant

of what everyone knows.”68 Indeed, blind obedience to 

stare decisis would leave this Court still abiding grotesque

errors like Dred Scott v. Sandford,69 Plessy v. Ferguson,70 

—————— 

67Perhaps the only early state-law discussion that truly supports the 

Court’s position is dicta in an 1834 Virginia decision. Hendrick v. 

Commonwealth, 32 Va. 707. Yet even that support proves threadbare 

in the end, given that “the highest court of the same State later expressed the view that such double trials would virtually never occur in 

our country.” Bartkus, 359 U. S., at 159 (Black, J., dissenting) (citing 

Jett v. Commonwealth, 59 Va. 933, 947, 959 (1867)). 68R. Cross & J. Harris, Precedent in English Law, intro. comment

(4th ed. 1991) (attributing the aphorism to Jeremy Bentham). 69 19 How. 393 (1857). 

70 163 U. S. 537 (1896). 
 

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

GORSUCH, J., dissenting 

and Korematsu v. United States.71 As Justice Brandeis 

explained, “in cases involving the Federal Constitution, 

where correction through legislative action is practically 

impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the 

force of better reasoning, recognizing that the process of

trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.”72 

For all these reasons, while stare decisis warrants respect, it has never been “‘an inexorable command,’”73 and 

it is “at its weakest when we interpret the Constitution.”74 

In deciding whether one of our cases should be retained or 

overruled, this Court has traditionally considered “the

quality of the decision’s reasoning; its consistency with

related decisions; legal developments since the decision; 

and reliance on the decision.”75 Each of these factors, I 

believe, suggests we should reject the separate sovereigns

exception.

Take the “quality of [the] reasoning.”76 The first cases to 

suggest that successive prosecutions by state and federal

authorities might be permissible did not seek to address

the original meaning of the word “offence,” the troubling

federalism implications of the exception, or the relevant 

historical sources. Between 1847 and 1850, the Court 

decided a pair of cases, United States v. Marigold77 and 

Fox v. Ohio.78 While addressing other matters in those 

decisions, the Court offered passing approval to the possi-

—————— 

71 323 U. S. 214 (1944). 

72 Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406–408 (1932)

(dissenting opinion) (footnotes omitted). 73 Pearson v. Callahan, 555 U. S. 223, 233 (2009). 74 Agostini v. Felton, 521 U. S. 203, 235 (1997). 75 Franchise Tax Bd. of Cal. v. Hyatt, ante, at ___ (slip op., at 17). 76 Janus v. State, County, and Municipal Employees, 585 U. S. ___, 

___ (2018) (slip op., at 35). 77 9 How. 560 (1850). 

78 5 How. 410 (1847). 
 

 

 

20 GAMBLE v. UNITED STATES 

GORSUCH, J., dissenting 

bility of successive state and federal prosecutions, but did 

so without analysis and without actually upholding a

successive conviction. Indeed, in place of a careful constitutional analysis, the Fox Court merely offered its judgment that “the benignant spirit” of prosecutors could be

relied on to protect individuals from too many repetitive

prosecutions.79 We do not normally give precedential 

effect to such stray commentary.

Perhaps the first real roots of the separate sovereigns

exception can be traced to this Court’s 1852 decision in 

Moore v. Illinois.80 As it did five years later and more

notoriously in Dred Scott,81 the Court in Moore did violence to the Constitution in the name of protecting slavery 

and slaveowners. In Dred Scott the Court held that the 

Due Process Clause prevented Congress from prohibiting

slavery in the territories, though of course the Clause did

nothing of the sort.82 And in Moore the Court upheld a

state fugitive slave law that it judged important because 

the States supposedly needed “to protect themselves

against the influx either of liberated or fugitive slaves, and

to repel from their soil a population likely to become burdensome and injurious, either as paupers or criminals.”83 

The defendant, who had harbored a fugitive slave, objected

that upholding the state law could potentially expose him

to double prosecutions by the state and federal governments. The Court rejected that argument, reasoning

simply that such double punishment could be consistent

with the Constitution if the defendant had violated both 

state and federal law.84 Yet notably, even here, the Court

did not actually approve a successive prosecution. 

—————— 

79 Id., at 435. 80 14 How. 13. 

81 19 How. 393. 

82 Id., at 450. 83 Moore, 14 How., at 18. 84 Id., at 16. 
Cite as: 587 U. S. ____ (2019) 21 

GORSUCH, J., dissenting 

Nor did the trajectory of the separate sovereigns exception improve much from there. The first time the Court 

actually approved an “instance of double prosecution [and] 

failed to find some remedy . . . to avoid it” didn’t arrive 

until 1922.85 In that case, United States v. Lanza,86 the 

federal government prosecuted the defendants for manufacturing, transporting, and possessing alcohol in violation 

of the National Prohibition Act. The defendants argued

that they had already been prosecuted by the State of 

Washington for the same offense. But, notably, the defendants did not directly question the permissibility of 

successive prosecutions for the same offense under state

and federal law. Instead, the defendants argued that both

of the laws under which they were punished really derived 

from the “same sovereign:” the national government, by

way of the Eighteenth Amendment that authorized Prohibition. After rejecting that argument as an “erroneous 

view of the matter,” the Court proceeded on, perhaps 

unnecessarily, to offer its view 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.”87 Given that the Court was not asked 

directly to consider the propriety of successive prosecutions under separate state and federal laws for the same

offense, it is perhaps unsurprising the Court did not consult the original meaning of the Double Jeopardy Clause 

or consult virtually any of the relevant historical sources 

before offering its dictum. 

It matters, too, that these cases “were decided by the

narrowest of margins, over spirited dissents challenging 

the basic underpinnings of those decisions.”88 In Moore, 

—————— 

85Grant, The Lanza Rule of Successive Prosecutions, 32 Colum. L. 

Rev. 1309, 1311 (1932). 86 260 U. S. 377 (1922). 

87 Id., at 381, 382. 88 Payne v. Tennessee, 501 U. S. 808, 828–829 (1991). 
 

 

 

22 GAMBLE v. UNITED STATES 

GORSUCH, J., dissenting 

Justice McLean wrote that although “the Federal and

State Governments emanate from different sovereignties,” 

they “operate upon the same people, and should have the

same end in view.”89 He “deeply regret[ted] that our government should be an exception to a great principle of

action, sanctioned by humanity and justice.”90 Bartkus 

and Abbate, cases decided in the 1950s that more clearly 

approved the separate sovereigns exception, were decided

only by 5-to-4 and 6-to-3 margins, and Justice Black’s

eloquent dissents in those cases have triggered an avalanche of persuasive academic support.91 

What is more, the “underpinnings” of the separate

sovereigns exception have been “erode[d] by subsequent

decisions of this Court.”92 When this Court decided Moore, 

Lanza, Bartkus, and Abbate, the Double Jeopardy Clause 

applied only to the federal government under this Court’s 

decision in Palko v. Connecticut.93 In those days, one

might have thought, the separate sovereigns exception at 

least served to level the playing field between the federal

government and the States: If a State could retry a defendant after a federal trial, then the federal government

ought to be able to retry a defendant after a state trial.

But in time the Court overruled Palko and held that the 

Double Jeopardy Clause does apply to the States—and, 

—————— 

89 14 How., at 22 (dissenting opinion). 

90 Ibid. 

91See, e.g., Cassell, The Rodney King Trials and the Double Jeopardy 

Clause: Some Observations on Original Meaning and the ACLU’s

Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L. Rev.

693, 708–720 (1994); Braun, Praying to False Sovereigns: The Rule 

Permitting Successive Prosecutions in the Age of Cooperative Federalism, 20 Am. J. Crim. L. 1 (1992); Amar & Marcus, Double Jeopardy

Law After Rodney King, 95 Colum. L. Rev. 1, 6–15 (1995); King, The 

Problem of Double Jeopardy in Successive Federal-State Prosecutions: 

A Fifth Amendment Solution, 31 Stan. L. Rev. 477 (1979). 92 United States v. Gaudin, 515 U. S. 506, 521 (1995). 93 302 U. S. 319, 328–329 (1937). 
 

 

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

GORSUCH, J., dissenting 

with that, a premise once thought important to the exception fell away.94 

Nor has only the law changed; the world has too. And 

when “far-reaching systemic and structural changes” 

make an “earlier error all the more egregious and harmful,” stare decisis can lose its force.95 In the era when the 

separate sovereigns exception first emerged, the federal 

criminal code was new, thin, modest, and restrained. 

Today, it can make none of those of boasts. Some suggest

that “the federal government has [now] duplicated virtually every major state crime.”96 Others estimate that the 

U. S. Code contains more than 4,500 criminal statutes, not 

even counting the hundreds of thousands of federal regulations that can trigger criminal penalties.97 Still others 

suggest that “‘[t]here is no one in the United States over 

the age of 18 who cannot be indicted for some federal

crime.’”98 If long ago the Court could have thought “the

benignant spirit” of prosecutors rather than unwavering 

enforcement of the Constitution sufficient protection

against the threat of double prosecutions, it’s unclear how 

we still might.

That leaves reliance. But the only people who have

relied on the separate sovereigns exception are prosecutors who have sought to double-prosecute and double-

—————— 

94 Benton, 395 U. S., at 794. 95 South Dakota v. Wayfair, Inc., 585 U. S. ___, ___ (2018) (slip op., at

18) (internal quotation marks omitted). 

96E. Meese, Big Brother on the Beat: The Expanding Federalization 

of Crime, 1 Texas L. Rev. L. & Pol’y 1, 22 (1997). 97See Wilson, That Justice Shall Be Done, 36 No. Ill. L. Rev. 111, 121 

(2015). 98Clark & Joukov, Criminalization of America, 76 Ala. L. 225 (2015). 

See also Larkin, Public Choice Theory and Overcriminalization, 36 

Harv. J. L. Pub. Pol’y 715, 726 (2013) (“There are so many federal 

criminal laws that no one, including the Justice Department, the 

principal federal law enforcement agency, knows the actual number of 

crimes”). 
 

24 GAMBLE v. UNITED STATES 

GORSUCH, J., dissenting 

punish. And this Court has long rejected the idea that 

“law enforcement reliance interests outweig[h] the interest

in protecting individual constitutional rights so as to 

warrant fidelity to an unjustifiable rule.”99 Instead, “[i]f it

is clear that a practice is unlawful, individuals’ interest in

its discontinuance clearly outweighs any law enforcement

‘entitlement’ to its persistence.”100 That is the case here. 

The Court today disregards these lessons. It worries 

that overturning the separate sovereigns rule could undermine the reliance interests of prosecutors in transnational cases who might be prohibited from trying individuals already acquitted by a foreign court. Ante, at 7. Yet 

even on its own terms, this argument is unpersuasive. 

The government has not even attempted to quantify the 

scope of the alleged “problem,” and perhaps for good reason. Domestic prosecutors regularly coordinate with their 

foreign counterparts when pursuing transnational criminals, so they can often choose the most favorable forum for

their mutual efforts. And because Blockburger requires an

identity of elements before the double jeopardy bar can 

take hold, domestic prosecutors, armed with their own 

abundant criminal codes, will often be able to find new 

offenses to charge if they are unsatisfied with outcomes

elsewhere. 

* * * 

Enforcing the Constitution always bears its costs. But 

when the people adopted the Constitution and its Bill of 

Rights, they thought the liberties promised there worth 

the costs. It is not for this Court to reassess this judgment 

to make the prosecutor’s job easier. Nor is there any

doubt that the benefits the framers saw in prohibiting

double prosecutions remain real, and maybe more vital 

—————— 

99 Arizona v. Gant, 556 U. S. 332, 350 (2009). 100 Id., at 349. 
Cite as: 587 U. S. ____ (2019) 25 

GORSUCH, J., dissenting 

than ever, today. When governments may unleash all

their might in multiple prosecutions against an individual, 

exhausting themselves only when those who hold the reins 

of power are content with the result, it is “the poor and the

weak,”101 and the unpopular and controversial, who suffer 

first—and there is nothing to stop them from being the 

last. The separate sovereigns exception was wrong when

it was invented, and it remains wrong today.

I respectfully dissent. 

—————— 

101 Bartkus, 359 U. S., at 163 (Black, J., dissenting).