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Agreeing with Ruth Bader Ginsburg
By Mark Landsbaum - June 20, 2019

OK, ready for a headache?

I think I agree with Ruth Bader Ginsburg. But so does Neil Gorsuch. Go figure.

Or, maybe I agree with the other 7 Supreme Court justices in this recent 7-2 decision involving double jeopardy.

Here’s the gist: Ginsburg and Gorsuch say a person faces double jeopardy if a state (Alabama in this case) and the US government both prosecute him for the same crime. The Constitution prohibits double jeopardy. Or so we thought.

Something called “separate sovereigns” allows what appears to be double jeopardy if the prosecutions are by different governments – such as Alabama and the feds – for the same crime.

On the face of it, separate sovereigns has inherent logic. If you commit a crime in violation of a law in Alabama, that state should be permitted to prosecute you. And if you violate a law of the United States, so too should you be prosecuted.

The dual sovereignty concept recognizes that, and because it does, it seems to sort of support states’ rights, which probably gives the l*****ts among the 7-v**e majority heartburn, but is just peachy with me.

States’ rights, you might recall, is guaranteed in the Constitution in the 10th Amendment, just as is the prohibition against double jeopardy in the 5th Amendment. The 10th says:

“The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Reserved powers, are often referred to as police powers that protect citizens. State criminal laws are an example.

While originally the federal government was limited to specific enumerated powers listed in Article One of the Constitution, such as declaring war and raising taxes, none of the listed powers are what you would consider police powers.

But just as is with so much about the federal government, Washington has passed a passel of laws that once were considered to be reserved to the states. So, now we’ve got a passel of “separate sovereigns” possibilities. And potentially, a passel of double jeopardies.

For this mess, a bunch of blame goes to my least favorite president, Abe Lincoln, the white supremist who threw newspaper editors in jail for disagreeing with him. The concept of an over-arching federal government is Lincoln’s legacy, among other dark blots he left on the national honor.

A bunch more blame belongs to the federal government’s reaction to the murder of one of my other least favorite presidents, JFK. When Kennedy was assassinated, it wasn’t a federal crime. It was a Texas murder case. The feds, nevertheless jumped in and claimed jurisdiction. Y’all know how that turned out. But the resulting complaints also gave rise to yet another expansion of the federal government into the reserved powers of states’ rights. Congress passed a law making murdering a president a federal crime.

Imagine this: If that law had been on the books before Nov. 22, 1963, and Lee Harvey Oswald had lived, he would have faced double jeopardy in D.C. and Dallas.

Now that’s an outrage, considering the patsy didn’t even pull a trigger on a gun that k**led Kennedy.

Bottom line:

I applaud Ginsberg (cough, cough) and Gorsuch for trying to protect people from being placed in double jeopardy, a protection that dates back at least as far as the Roman Empire.
Nevertheless, I’ve also gotta applaud the other 7 for recognizing in their back-handed way the principle of states’ rights, which barely exists any more and is defended too infrequently these days, if at all.
Of course, in a perfect world the idea of separate sovereigns wouldn’t raise its ugly head, but the concept of states’ rights would be upheld because the federal government would be limited to those few enumerated powers listed in Article One.

This is just the latest real-life proof that the best government is a small, limited government. But as we know, it’s a fallen world.