The inaugural words of America’s Constitution make plain that “We the People” are the nation’s wellspring of sovereign authority,1 yet the doctrines of our “one supreme Court”2 often suggest that ultimate power resides in polities alone. One area of constitutional jurisprudence that exhibits this ironic turn is the dual-sovereignty doctrine, a formalist inquiry that tests whether two political entities are separate sovereigns for double jeopardy purposes.3 Last Term, in Puerto Rico v. Sanchez Valle,4 the Supreme Court applied this longstanding doctrine to the Commonwealth of Puerto Rico5 and held that it did not constitute a “sovereign” for double jeopardy purposes.6 Although Justice Kagan applied the Court’s dual-sovereignty precedent — an unsurprising approach from a jurist committed to stare decisis — she seemed to have done so with great reluctance. And such hesitancy made sense: despite the virtues that rules-oriented formalism holds within the nation’s courts, such an approach can appear particularly vice ridden outside of them. Such is the case with the dual-sovereignty doctrine, whose brand of sovereignty seems to diverge sharply from that lived out by citizens in the process of democratic self-rule — a self-rule exercised by Puerto Ricans, according to the Court, only by congressional grace, not by natural right.
Puerto Rico became a Spanish colony in 1493 and remained so until 1898, when Spain ceded the island to the United States following the Spanish-American War.7 After five decades of legislative and executive power devolving from Washington to San Juan in fits and starts,8 “Congress enabled Puerto Rico to embark on the project of constitutional self-governance”9 — Puerto Ricans’ most significant assertion of sovereignty in centuries.10 In 1950, Congress enacted Public Law 600,11 which “authorized the island’s people to ‘organize a government pursuant to a constitution of their own adoption.’”12 The island’s voters accepted Congress’s invitation, and within two years a constitutional convention produced, and the Puerto Rican people approved, a draft constitution.13 Then, Congress “took its turn on the document,” both excising and adding language.14 Puerto Rico’s constitutional convention promptly assented to the revisions.15 Following a final proclamation by the island’s governor, the constitution — and its newly formed Commonwealth of Puerto Rico — was endowed with the force and effect of law.16
The Commonwealth’s legislature subsequently exercised its constitutional authority to enact the Puerto Rico Arms Act of 200017 (the Act), which regulates firearms sales on the island.18 In 2008, Commonwealth prosecutors charged Luis Sánchez Valle and Jaime Gómez Vázquez with violating the Act’s prohibition against selling firearms without permits.19 With those charges pending, federal grand juries likewise indicted both men for violations of analogous federal laws “based on the same transactions.”20
Both Sánchez Valle and Gómez Vázquez pleaded guilty to the federal charges — which were subject to significantly more lenient sentences relative to Puerto Rican law21 — and moved to dismiss the Commonwealth’s charges, arguing that successive prosecutions “on like charges for the same conduct” by both governments was unconstitutional.22 The men’s respective trial courts accepted their argument, but the Court of Appeals of Puerto Rico reversed based on the law at the time.23 Weighing in, the Supreme Court of Puerto Rico reversed, holding that “because Puerto Rico is not a federal state, a person who has been acquitted, convicted or prosecuted in federal court cannot be prosecuted for the same offense” by Puerto Rico.24
The Supreme Court affirmed.25 Writing for a six-Justice majority, Justice Kagan26 held that the Double Jeopardy Clause bars the federal government and Puerto Rico from “twice put[ting]” a defendant “in jeopardy” for the “same offence.”27 Justice Kagan began her analysis with a summary of the doctrinal framework controlling in the case: the Fifth Amendment’s “dual-sovereignty carve-out.”28 Although the Double Jeopardy Clause ordinarily protects a defendant from two prosecutions for the same offense, the “carve-out” provides that “two prosecutions . . . are not for the same offense if brought by different sovereigns — even when those actions target the identical criminal conduct through equivalent criminal laws.”29
In the process, Justice Kagan pointed out the counterintuitive nature of the Court’s doctrinal formulation. “Truth be told,” Justice Kagan observed, “‘sovereignty’ in [the dual-sovereignty] context does not bear its ordinary meaning.”30 To the contrary, and “[f]or whatever reason,” the doctrine “overtly disregards common indicia of sovereignty,”31 all but ignoring a political entity’s degree of independent prosecutorial authority,32 the extent of local self-governance,33 or the capacity for imposing punishment.34
Rather, the relevant inquiry “hinges on a single criterion: the ‘ultimate source’ of the power undergirding the respective prosecutions.”35 The Court’s test is therefore a historically oriented rule that “look[s] at the deepest wellsprings, not the current exercise, of prosecutorial authority” — an authority that precedes the existence of federal power itself.36 Within this framework, the Court has determined that the states and Indian tribes qualify as distinct and separate sovereigns from the federal government for Fifth Amendment purposes.37 On the other hand, municipalities and U.S. territories — “including an earlier incarnation of Puerto Rico itself”38 — do not qualify.39
Justice Kagan acknowledged that Puerto Rico had transformed into a “new kind of political entity” as a result of the “great[ly] significan[t]” events of 1950–1952,40 which had endowed the island with “the degree of autonomy and independence normally associated with States of the Union”41 and necessitated renewed evaluation of the applicability of the earlier U.S. territory–related Double Jeopardy Clause cases to Puerto Rico.42 Yet because the dual-sovereignty doctrine focuses “not on the fact of self-rule, but on where it came from”43 — and because, as Justice Kagan put it, “the oldest roots of Puerto Rico’s power to prosecute lie in federal soil”44 — the result was the same. The doctrine required the Court to “go . . . beyond the immediate, or even an intermediate, locus of power to . . . the ‘ultimate source.’”45 With Puerto Rico, that “ultimate source” is Congress, via Public Law 600 — a “historical fact” that proves “dispositive.”46
Although joining Justice Kagan’s opinion in full, Justice Ginsburg filed a concurrence47 to question the dual-sovereignty doctrine’s continued viability.48 In a similar vein, Justice Thomas concurred to note his disagreement with the Court’s treatment of the Indian tribes in its double jeopardy jurisprudence.49
Justice Breyer dissented.50 While accepting the pertinent inquiry as locating the source of Puerto Rico’s prosecutorial power, he disagreed with Justice Kagan’s conclusion. Conceptually, Justice Breyer rejected the contention that the dual-sovereignty doctrine required the Court to “seek the ‘furthest-back source of . . . power’”;51 for instance, the Court does not “trace the Federal Government’s source of power back . . . to King Arthur.”52 Instead, in his view, the doctrine directs the Court to “trace the source of power back to a time when . . . a previously dependent entity” such as Puerto Rico became “sufficiently independent” to constitute a “sovereign.”53 Justice Breyer then examined the historical significance of Public Law 600, and the creation and adoption of the Commonwealth’s Constitution.54 Undertaking a multifactor analysis that weighed the “history of statutes, language, organic acts, traditions, statements, and other actions, taken by all three branches of the Federal Government and by Puerto Rico,”55 Justice Breyer concluded that the events of 1950–1952 shifted the source of Puerto Rico’s criminal law from Congress to “Puerto Rico itself, its people, and its constitution.”56
When unpacked, Justices Kagan and Breyer’s dueling opinions both adopted a precedent-based framework that directs the Court to identify the “ultimate source” of the Commonwealth’s prosecutorial power. The Justices’ divergence occurs at a more granular level: whether to understand “ultimate source” in formal or functional terms. Yet even here, the two jurists seem separated by inches, not miles. When one reads between Justice Kagan’s lines, a discernible unease with formalism’s consequences vis-à-vis Puerto Rico and a sympathetic ear for a functionalist alternative seem to emerge. In fact, Justice Kagan seemed to suggest that while functionalism’s allure could not outweigh its drawbacks and the dictates of stare decisis, she recognized how the formalist-grounded dual-sovereignty doctrine denies the Constitution’s promise of democratic self-rule in its focus on classifications of political entities over the people who created them. If indeed “the People” control their government and not vice versa, then Sanchez Valle results in nothing short of a figurative coup, consigning Puerto Rico’s sovereignty to the whims of the very Congress “ordain[ed] and establish[ed]” by their power and in their name.57
Sanchez Valle turned on constitutional doctrine, or “the rules courts create to make the meaning of constitutional provisions or requirements applicable in concrete cases.”58 Two recurrent — and divergent — forms of doctrine are rules and standards.59 The debate over rules versus standards turns on “whether to cast legal directives in more or less discretionary form.”60 Rules are formulae that aim to “leav[e] irreducibly arbitrary and subjective value choices to be worked out elsewhere,” while standards “collapse decisionmaking back into the direct application of the background principle or policy to a fact situation.”61
The rules-standards dichotomy bears close resemblance, and is indeed closely tied to, a second enduring jurisprudential struggle — not over doctrine, but over constitutional meaning itself. This struggle pits “strict formalism” against “permissive functionalism,”62 rival theories of structural constitutionalism.63 To deduce the nature and allocation of government powers and prohibitions, formalists look almost exclusively to the Constitution’s “literal language and the drafters’ original intent regarding [its] application.”64 By contrast, functionalists view changed circumstances, normative values, and practical effects as crucial inputs into an individualized, case-by-case calculus.65 These schools intersect with rules and standards in the formation of doctrine from meaning: formalism aligns with “bright-line rules that seek to place determinate, readily enforceable limits on public actors,” and functionalism with “standards or balancing tests that seek to provide public actors with greater flexibility.”66
These distinctions and the dynamics among them — rules and standards, formalism and functionalism — provide a window through which to understand the quarrel that lies at the heart of Sanchez Valle. The dual-sovereignty doctrine articulated in the Court’s precedents and reaffirmed in Justice Kagan’s opinion rests on a formalist interpretation — on a sharp divide between the types of polities that can and cannot possess Fifth Amendment–sufficient sovereign authority.67 It is thus unsurprising that the pertinent test boiled down to discrete categories distinguished by a rule.68
In dissent, by contrast, Justice Breyer sought to reinvent69 the doctrine on functionalist grounds, changing the content of the “ultimate source” inquiry into one that asks whether a government has “gained sufficient sovereign authority to become the ‘source’ of power behind its own criminal laws.”70 Because his understanding of structural constitutionalism diverged from precedent, he cut a different path forward. Whereas precedent supplied a bright-line rule — states in, territories out — Justice Breyer preferred a standard that would measure a political entity’s functional autonomy.
Yet despite simply enforcing the Court’s precedent in Sanchez Valle, Justice Kagan seemed to reveal a discernible degree of unease with the case’s ultimate result and the doctrine that got her there.71 She went out of her way to acknowledge that the events of 1950–1952 were of “great significance,”72 creating for Puerto Rico “a relationship to the United States that has no parallel in our history”73 — a status for San Juan that seemed more akin to a state capital than a seat of territorial administration.74 She likewise emphasized her own vexation with the dual-sovereignty doctrine’s construction,75 seeming to go so far as to entertain an approach similar to Justice Breyer’s; as she acknowledged, the Court’s bright-line formalist rule may seem “counter-intuitive, even legalistic,” when compared to a standard that measures a political entity’s practical autonomy.76
In the end, Justice Kagan seemed to find herself jammed between a rock and a hard place. On the one hand, she appeared to recognize a formalist rule’s merit and a functionalist standard’s shortcomings,77 as well as the rule-of-law values served by honoring the age-old doctrine of stare decisis.78 On the other, she seemed acutely cognizant of the doctrine’s heavy cost to the people of Puerto Rico. According to the Court, because their polity was not of the “right” kind — because it remains classified as a “Territory . . . belonging to the United States” under the Constitution79 — their right to democratic self-rule was no right at all; as a constitutional matter, the right to govern Puerto Rico belonged to Congress and Congress alone. What Congress giveth, Congress can taketh away.80
However, if “the People” are indeed the fount of constitutional power, then demarcating the metes and bounds of sovereignty by focusing on polities rather than people seems to put the cart before the horse as a matter of theory — and to deny democratic self-rule as a matter of fact. The Puerto Rican people, exercising their power of self-rule through their democratically elected government, have enacted numerous laws for their Commonwealth’s benefit, including the Act whose application to Sánchez Valle and Gómez Vázquez underlay the controversy in Sanchez Valle. Most immediately, the Court’s dual-sovereignty doctrine precluded the men’s prosecutions in this case, but its reach went much further: the doctrine rendered moot the very sovereign authority that supposedly belongs to the Puerto Rican people themselves, both under the federal constitution and their own81 — a sovereignty centuries in the making.
And sovereignty matters. Sovereignty, after all, “means freedom, the freedom of a people to choose what their future will be” — including what laws will govern them and their fellow citizens.82 It is understandable, then, that many Puerto Ricans would come to view Sanchez Valle — when joined with the Court’s opinion in Puerto Rico v. Franklin California Tax-Free Trust83 and the enactment of the Puerto Rico Oversight, Management, and Economic Stability Act84 (PROMESA), all products of June 2016 — as one prong of an unholy trinity signifying nothing short of a resurgence of a colonial condition long believed to have been discarded from their shores.85 In one commentator’s words, “Puerto Rico has been stripped naked and put on show to be shamed.”86 Sanchez Valle makes clear that Puerto Ricans are not free in the sovereign sense: they live under Congress’s shadow, in the end subject to its will. Justice Kagan’s talk of the Commonwealth’s special relationship with the United States does nothing to lessen the sting.