Andrew McCarthy of National Review Online explains his support for a U.S. Supreme Court ruling involving dual sovereignty.
We are living in a low-crime era of suspicion against vigorous law enforcement (i.e., the law enforcement that gave us the low-crime era after decades of record crime). We are also living in a time when the federal government has expanded into a behemoth that would be unrecognizable to the Framers, with a criminal code so extensive that there are cognate federal offenses for most state and local crimes.
Consequently, objections to such prosecutorial advantages as dual sovereignty are in vogue. Notwithstanding the plummeting number of inmates in U.S. prisons, now at a nine-year low and still trending downward, we live in a “carceral state,” according to “criminal-justice reform” activists. …
… Of course, fads are not a good reason to reimagine the Constitution, no matter how “organic” you may think it is. In our federal republic, the states are deemed to be sovereign, as is the national government. The Fifth Amendment has never been understood to bar federal charges after a state prosecution, or vice versa. As Justice Alito pointed out, the unbroken line of dual sovereignty precedent stretches 170 years. …
… Generally speaking, then, dual sovereignty is an issue only in extraordinarily serious cases, cases in which, even though the crime may be the same, the federal government has legitimate enforcement interests that are different from the state’s.
