Since its 1970 decision in Ashe v. Swenson, the U.S. Supreme Court has recognized issue preclusion as part of the constitutional guarantee against double jeopardy. Ashe held that where an acquittal necessarily involved deciding a factual issue in the defendant’s favor, the Double Jeopardy Clause of the Fifth Amendment prevents the prosecution from relitigating that issue in any subsequent trial. In recent years, several Justices have expressed doubts about whether Ashe is consistent with the original meaning of the Double Jeopardy Clause. This Note fills a gap in the academic literature by taking up that question.

This Note argues that the judgment in Ashe, but not the issue preclusion rationale on which it rests, is consistent with the original meaning of the Double Jeopardy Clause. The text, drafting history, and early judicial interpretations of the Clause indicate that it codified an English common law right. Seventeenth- and eighteenth-century sources reveal the content of that right: At common law, two crimes were considered “the same” for double jeopardy purposes only if (1) the charged offenses were identical or one was a lesser included offense of the other; and (2) they rested on the same factual allegations. This historical evidence shows that the issue preclusion rule announced in Ashe was not part of the original guarantee against double jeopardy. But it also shows that the common law did not allow what the State attempted in Ashe—subjecting a criminal defendant to multiple trials for a single crime simply because the crime involved multiple victims.

* J.D., Stanford Law School, 2018. Many thanks to my classmate Hannah Chartoff and to my professors Will Baude, George Fisher, Michael McConnell, and Bob Weisberg for providing encouragement, guidance, and helpful comments on early drafts; and to the editors of the Stanford Law Review, especially Zac Krowitz, for their phenomenal editing help. All errors and omissions are my own.