`(Slip Opinion)
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`
`
` OCTOBER TERM, 2018
`
`
`Syllabus
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`1
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` 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.
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`
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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`
`
` 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.
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` 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 doc-
` trine, 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 Elev-
`enth Circuit affirmed.
`Held: This Court declines to overturn the
`
`sovereignty 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 “of-
`
`fence” 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 “of-
`
`fences.” Gamble attempts to show from the Clause’s drafting history
`that Congress must have intended to bar successive prosecutions re-
`gardless 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.
`
`longstanding dual-
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`2
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`GAMBLE v. UNITED STATES
`
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`Syllabus
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`410; United States v. Marigold, 9 How. 560; and Moore v. Illinois, 14
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`How. 13—laid the foundation that a crime against two sovereigns
`
`constitutes two offenses because each sovereign has an interest to
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`
`vindicate. Seventy years later, that foundation was cemented in
`United States v. Lanza, 260 U. S. 377, which upheld a federal prose-
`cution that followed one by a State. This Court applied that prece-
`dent 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 com-
`mon-law rights that the Double Jeopardy Clause was originally un-
`
`derstood to engraft onto the Constitution, pointing to English and
`American cases and treatises. A departure from precedent, however,
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`“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 deci-
`sions on which Gamble relies was “dubious” due to “confused and in-
`
`
`adequate reporting.” Bartkus, 359 U. S., at 128, n. 9. On closer in-
`spection, 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 posi-
`tion 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 dual-
`
`
`
`sovereignty 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 theoreti-
`
`cal 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. Gam-
`
`ble 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 dual-
`sovereignty rule would do little to trim the reach of federal criminal
`
`law or prevent many successive state and federal prosecutions for the
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`3
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`Cite as: 587 U. S. ____ (2019)
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`Syllabus
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`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.
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` Cite as: 587 U. S. ____ (2019)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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`
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`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 of-
`fence.” 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” doc-
`trine, 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
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`
`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
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`prosecution on double jeopardy grounds, Gamble asks us
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`

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` 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; point-
`ing 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, Ala-
`
`bama, 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 posses-
`sion 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
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` in or affecting commerce, any firearm or ammunition.” 18
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`U. S. C. §922(g)(1).
`
`Gamble moved to dismiss on one ground: The federal
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`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 de-
`nied 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
`
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`
`2
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`3
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`Cite as: 587 U. S. ____ (2019)
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`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. Al-
`
`
`though the dual-sovereignty rule is often dubbed an “excep-
`
`tion” 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 Diction-
`ary 167 (1792) (“OFFENCE, is an act committed against
`law, or omitted where the law requires it”). As originally
`——————
`1In 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).
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`GAMBLE v. UNITED STATES
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`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 of-
`fense 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 epi-
`
`sode 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 regard-
`less 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
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`19th-century dictionary defining “offense” broadly as “any transgres-
`
`sion of law, divine or human; a crime; sin; act of wickedness or omission
`of duty.” 2 N. Webster, An American Dictionary of the English Lan-
`guage (1828). But the question is what “offence” meant in legal con-
`texts. See Moore v. Illinois, 14 How. 13, 19 (1852) (“An offence, in its
`legal signification, means the transgression of a law. . .” (emphasis
`added)).
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`

`5
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` Cite as: 587 U. S. ____ (2019)
`
`Opinion of the Court
`U. S. 274, 287 (2002) (“[F]ailed legislative proposals are a
`
`particularly dangerous ground on which to rest an inter-
`pretation 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 conjec-
`ture would prevail. The Government notes that the Decla-
`ration of Independence denounced King George III for
`“protecting [British troops] by a mock Trial, from punish-
`ment 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 Par-
`liament after the Boston Massacre,” Amar, Sixth Amend-
`ment 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 circum-
`
`vention 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 prose-
`cutions here would soon give us an Amendment allow-
`ing 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 dual-
`sovereignty 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 differ-
`ences between the interests that two sovereigns can have
`
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`

`

`6
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` GAMBLE v. UNITED STATES
`
`Opinion of the Court
`in punishing the same act.
`
`The question of successive federal and state prosecu-
`tions 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 conse-
`
`quences 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 Amend-
`
`ment 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 inter-
`
`ests it might vindicate—with an example. An assault on a
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`

`7
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` Cite as: 587 U. S. ____ (2019)
`
`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 commit-
`ted 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 vio-
` lence 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 prose-
`
`cuted 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 coun-
`
`try’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 scholar-
`ship. Such interests might also give us a stake in punish-
`ing crimes committed by U. S. nationals abroad—
`
`especially crimes that might do harm to our national
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`

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` GAMBLE v. UNITED STATES
`
`Opinion of the Court
`security or foreign relations. See, e.g., §2332a(b) (bomb-
`ings). 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 de-
`nounced as a crime by both national and state sovereign-
`ties 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 considera-
`tion or persuasive reason not presented to the Court in the
`prior cases” for disturbing our “firmly established” doc-
`
`trine. 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
`
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`9
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`Cite as: 587 U. S. ____ (2019)
`
`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 independ-
`ence, they claimed the powers inherent in sovereignty
`. . . . The Constitution limited but did not abolish the
`sovereign powers of the States, which retained ‘a re-
`siduary 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. Ash-
`croft, 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; be-
`tween the “sovereignty which the people of a single state
`possess” and the sovereign powers “conferred by the peo-
`ple of the United States on the government of the Union,”
`id., at 429–430; and thus between “the action of a part”
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`10
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`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 au-
`thoritative 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 funda-
`mentally 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 un-
`common 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 prohib-
`its, 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 ex-
`pense of other interests. And it is thus quite extraordi-
`nary 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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` 11
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` Cite as: 587 U. S. ____ (2019)
`
`Opinion of the Court
`
` III
` Gamble claims that our precedent contradicts the common-
`
`
`
` law 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., dissent-
`ing). 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 rati-
`fied 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 some-
`thing more than “ambiguous historical evidence” is re-
`quired 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,
`
`
`
`
`
`

`

`
`
` GAMBLE v. UNITED STATES
`
`Opinion of the Court
`556 U. S. 778, 792 (2009). Here, as noted, Gamble’s his-
`torical arguments must overcome numerous “major deci-
`sions 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. Trea-
`tises 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 prosecu-
`tion 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 deci-
`sion 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
`
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` 13
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` Cite as: 587 U. S. ____ (2019)
`
`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 prose-
`cution 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 hap-
`
`
`pened 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 Por-
`tugal, 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 commis-
`sion 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-
`
`
`
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`14
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`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 Domin-
`ions.” The attorney claimed that jurisdiction lay instead
`w