Wednesday, March 17, 2010

Double jeopardy reexamined

At our book discussion group Sunday evening I handed out reprints of the First, Fifth, and Eighth amendments in order to make some points about constitutional interpretation. Ed Miller, reading the Fifth Amendment, noticed the expression "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." He noted the difference from the due process clause, which prohibits deprivations of "life, liberty, or property," and wondered if the prohibition of double jeopardy only extended to capital punishment cases.

Of course, this is not presently the case, but I was amazed that I had not noticed this difference during some 50 years of reading and teaching about the Constitution.

Afterwards, Ed Googled around and found a fascinating law review article discussing this very issue, and proposing that our protection against double jeopardy be narrowed by taking the wording in the Constitution more literally.

The article can be read here.

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