The no double jeopardy provision of the Fifth Amendment to the U.S. Constitution reads:
“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;“
The double jeopardy “loophole” is this; that where the accused is acquitted of a state crime, he/she is then tried for the same federal crime, and vice-versa.
The original intent of the Bill of Rights was to only limit the newly-created federal government, and not the States. Then, subsequent to the American Civil War, parts of the Bill of Rights have been progressively incorporated against the States.
It wasn’t that the principles of the Bill of Rights shouldn’t apply to the States, but the Bill of Rights didn’t apply to them for two main reasons:
1) Most of the States already had similar bills.
2) A federal Bill of Rights would be used to federalize the application of the Bill of Rights, which could lead to bad decisions applying to the entire country and subvert the federal design of the government, with the States sovereign within their respective jurisdictions.
Therefore, by original design, this “loophole” wasn’t a loophole because the federal government understood that it had no power to define and prosecute crimes that were completely within the exclusive jurisdiction of the States.
Where it became a problem and a loophole, was when the federal government stepped beyond its constitutional bounds and defined crimes that it had no valid constitutional basis for doing so.
The few and defined federal crimes in the Constitution are treason, piracy, counterfeiting and crimes against the laws of nations.
I don’t share the view of some that Congress had no power to define additional laws.
Article I, Section 8 of the Constitution specifically grants Congress the power to:
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;“
This gave Congress the power to define any crimes it wanted that would apply to this District.
Outside of that District, I argue that Congress still has the power to define additional crimes. For example, crimes relating to its power to coin money. And we see from the 1792 Coinage Act, that death was the penalty for debasing the currency.
This is further evidenced by Article II, Section 4, which states:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.“
The mention of “other high Crimes” implies that Congress can define and punish other “high Crimes”, not only within the District, but outside, because of the mention of “all civil Officers”.
But, the restriction upon defining new crimes is whether it relates to what is “necessary and proper” for carrying out Congress’ 18 enumerated powers.
Therefore, federal “crimes” relating to cross-state drug “offences”, cross-state “terrorism” “offences”, etc., are completely invalid, and this is where the double jeopardy loophole applies.
How to deal with the federal government going beyond its constitutional boundaries in defining and punishing non-crimes? The States should nullify them by preventing state officials from providing any support or co-operation for the prosecution of these federal non-crimes.