Kayla Mullen

Document Type

Supreme Court Commentaries

Publication Date



Fifth Amendment, dual-sovereignty exception, federalism, double jeopardy

Subject Category

Constitutional Law | Supreme Court of the United States


Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single act, may violate the laws of both sovereigns and therefore be liable to prosecutions by both governments for the same conduct without their Fifth Amendment rights being infringed. This Commentary will proceed by examining the precedents behind the current separate-sovereigns doctrine and analyzing the anachronistic results they have produced. It concludes by arguing that although the Court will most likely not overrule the dual-sovereignty exception to the Double Jeopardy Clause, the Court should examine how the legal and factual underpinnings of the doctrine have changed and, ultimately, choose to overrule the exception.