Pennsylvania v. Nelson

PETITIONER:Pennsylvania
RESPONDENT:Nelson
LOCATION:Pittsburgh Party Headquarters

DOCKET NO.: 10
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

CITATION: 350 US 497 (1956)
ARGUED: Nov 15, 1955 / Nov 16, 1955
DECIDED: Apr 02, 1956

Facts of the case

Nelson, a member of the Communist Party, was convicted of violating the Pennsylvania Sedition Act. This Act was implemented prior to Congress’s adoption of the Smith Act of 1940 (amended in 1948) which prohibited the same conduct as Pennsylvania’s law.

Question

Did the Smith Act supersede enforcement of Pennsylvania’s sedition law?

Earl Warren:

Number 10, Commonwealth of Pennsylvania versus Steve Nelson.

Mr. Thatcher.

Herbert S. Thatcher:

Your Honor, I think that the Attorney General of New Hampshire is to be next.

Earl Warren:

Well, oh, is that so?

Yes.

Mr. Attorney General, you may proceed.

I —

Louis C. Wyman:

— to Your Honor.

Earl Warren:

— I didn’t have your name here at the moment.

Louis C. Wyman:

May it please the Court.

Before proceeding with argument in this case, I would like to explain one or two of the reasons why I filed a brief amicus in this case and ultimately requested time to be heard orally.

New Hampshire was requested to do this by the Commonwealth of Pennsylvania.

As Attorney General of New Hampshire, I have been in charge of a legislative investigation as the delegated committee, so to speak, for the last two years, to determine whether there were any violations of the Subversive Activities Act of our State, and to report to the general court.

In the process of conducting that investigation, one of the witnesses that was called, filed a petition with our Supreme Court asking that the subversive activities (Inaudible) New Hampshire of 1951 be declared unconstitutional.

That Act is patented after the Maryland over law and is very similar to the acts in perhaps 15 of the States.

It is also worthy of note in connection with this brief that has been filed amicus, that every Attorney General in the United States, in every State which has a law of any proportion in the field of subversive activities has joined in this brief with the exception of the Attorney General of Texas, who filed his own briefs which argues very much, I believe, the same propositions as are contained in the brief for the State of New Hampshire.

Felix Frankfurter:

I suppose that if I make the duty of Attorney General is to decide to state a law as it is?

Louis C. Wyman:

I believe that’s true, Your Honor.

But in the —

Hugo L. Black:

How many States are represented here?

Louis C. Wyman:

There are 30 States, Your Honor.

And it’s not appearing on the face of the brief by the States of California, Oregon, Kentucky, and Vermont, who filed supplementary statements with the clerk requesting to be known as parties to this brief.

There are approximately 17, I believe, in the States that do not have broad subversive activities laws in the country at the present time.

Our Supreme Court in New Hampshire —

Felix Frankfurter:

May I have a moment?

Louis C. Wyman:

Yes, sir.

Felix Frankfurter:

They use the word comprehensive (Inaudible)

Louis C. Wyman:

I believe, Your Honor, because of the inexplicable relationship in our law between advocacy of overthrow of the Federal Government and or the State of New Hampshire that it may very well, regardless of its separability provisions, involve the entire statute.

That is a question which ultimately would have to be passed upon by our Court.

Felix Frankfurter:

But it will be in court.

Louis C. Wyman:

Yes, sir.

In the argument of the —

Felix Frankfurter:

He’d be given this request of the — would you straighten out the (Inaudible) through the scope of the — in addition to prohibition of your law.

Louis C. Wyman:

Yes, Your Honor.

I don’t know if I can state it in a sentence or two, but very briefly, our law — our law is very broad.

It is aimed at subversive advocacy.

That is the acts themselves, either teaching, aiding or abetting the actual overthrow of the Government of the Federal Government or of the State of New Hampshire.

It is also aimed at subversive organizations as such which are defined as organizations which have for one of their purposes, the overthrow of the Government of either by force and violence, if necessary.

And that it is also aimed at persons, who are members in such organizations, but at all times only including the element of scienter.

They must be members knowing of the subversive purpose and that is a question of fact for the jury.Our Supreme Court on January, I believe, 25th, 1954, held our state statute constitutional.

And on that day, they had filed with it the copy of Justice Jones’ opinion in the principal case and a copy of Justice Bell’s dissenting opinion, and a supplemental memorandum by counsel for the original petitioner in New Hampshire.

And a supplemental memorandum was filed by myself.And when they decided the case on April 30th of 1954, they had fully explored the question of whether or not our law in New Hampshire was superseded by, in their opinion, the Smith Act.

And they held flatly, that insofar as the opinion of the Supreme Court of Pennsylvania purported to say that the Smith Act superseded state law that “We do not adopt it.”

Our Court in New Hampshire has quite a reputation since the days of Justice Jeremiah Smith and Chief Justice (Inaudible), with an outstanding court.

I think it worthy of mention that there is a flat disagreement between the Supreme Court of New Hampshire, after full consideration of the issues in the Highest Court of Pennsylvania in respect to this issue of supersession.

Harold Burton:

When were those of the dates about (Inaudible)

Louis C. Wyman:

There were state laws, Your Honor, in existence before the Smith Act and the greater body of them, I believe, came into effect, subsequent to the Smith Act although, there were a very substantial body of laws not as comprehensive as the overact in Maryland which were in effect after World War I in respect to sedition and espionage in the States.

Felix Frankfurter:

And given the date, now on page 15 of your brief, is that it?

Louis C. Wyman:

Yes, Your Honor.

Harold Burton:

Although the best (Inaudible)

Louis C. Wyman:

Those are the —

Harold Burton:

(Inaudible)

Louis C. Wyman:

Well, Your Honor, the law in the principal case is prior to 1940.

The law in Pennsylvania in the principal case was enacted prior to 1940.

Harold Burton:

They are substantial.

Louis C. Wyman:

Yes, Your Honor.

I believe there were quite a few, as listed and set forth in (Inaudible) on the States in subversion.

I do not have the various times and dates.

But none of those laws, I believe, were quite as comprehensive as this overact in Maryland, which was a very carefully prepared statute and has been tested in several of the States and found constitutional.

Harold Burton:

(Inaudible)

Louis C. Wyman:

We believe that there is only one very narrow issue in this case.

And that that issue is whether or not the Smith Act in 1940 superseded state laws.

Congress didn’t say so in the Smith Act.

That much is clear.

There is no expressed supersession.

So that the issue is whether by implication, this Court is of the opinion that either there is such a conflict between state law and the Smith Act, or such an occupation of the field by Congress in the Smith Act as to require that the Court hold that state laws are superseded.

I believe it is also very important to point out to you what we do not believe this case involves.

This case involves no issue of freedom of speech, no issue of the First Amendment, freedom of the press.

No issue of whether Steve Nelson had a fair trial below.

No issue of any civil rights and no issue of whether clear and present danger is a question for the Court or a question for the jury, because the highest Court in Pennsylvania said, with all those questions in respect to this trial, we need not now be concerned.

Because if the principal and cultured contention of the petitioner that there has been supersession is true, we are out of business in Pennsylvania and we so hope.

And that’s what the Pennsylvania Supreme Court held.

Felix Frankfurter:

In short, we must assume the purpose of the present case that if the Congress of the United States was to repeal the Smith Act on that means that January it would have been able to come in.

Is this true?

I think that still could still turn on the Board.

That the validity of the statute or right to publicity, we must assume that one of these Acts, in this case wouldn’t be here in this way.

Louis C. Wyman:

Not in this way, Your Honor.

No.

And in that regard, I think it’s important too to stress that all these cases in Massachusetts, the Hood case, the (Inaudible) case, the (Inaudible) case in Kentucky which occupy a recitation of facts in one of the amici briefs of some thirty five and a half pages are completely irrelevant to the single determination before the Court in this case.

And I believe also that the exaggerated misrepresentations of facts which are made in respect to what those cases might have involved or what I might have done in New Hampshire, which in some instances are almost libelous, should not occupy any of my time here before you, because that is in a field which has nothing to do with the issue in the case at bar which is very narrow.

Felix Frankfurter:

Has the matter of the three (Inaudible)

Louis C. Wyman:

I do not know, Your Honor.

I do not believe it has.

I think there is a petition by all these (Inaudible) in Massachusetts which is being held up by the Massachusetts Supreme Court pending the determination of the issue of supersession in this case.

Tom C. Clark:

I believe we have held and come to meet this exercise that the — the purpose of the matter deals with recovery if to be considered as by just some way to connect with the supersession?

Louis C. Wyman:

Oh, yes, Your Honor.

I think that’s true.

Tom C. Clark:

To that extent, I would suppose that the fact that this is in the field of (Inaudible) or whatever it is, but not to be charged to be fully irrelevant.

Louis C. Wyman:

No, not at all.

The purpose of Congress in respect of the Smith Act and the evil which the Smith Act was directed toward is, of course, very important in this field.

Louis C. Wyman:

But all of these extraneous matters which tend to present factual situations in an atmosphere, calculated to cause the reader to feel that there is involved the (Inaudible) which is the product of hysteria and which seeks to enjoin conformity upon all the people in the country are entirely irrelevant to the issue.

Hugo L. Black:

Why would they — why would they be irrelevant, they kept things true if they feel that much of the activity or the survey of the law is supposes to regulate.

It happened to be appealed in which the Government has provided special protection in the Constitution.

Louis C. Wyman:

Well, I believe, Your Honor, they’re irrelevant for this reason.Because the Supreme Court of Pennsylvania has indicated in the first three or four pages of its opinion has — it was printed in the appendix of the certiorari in this case.

That they do not need to be concerned with those particular questions because they rule solely on the narrow question of supersession.

And that’s why we have the States are here because this doubt about whether there was supersession raised by these two conflicting decisions cast a cloud over all of the subversive activities laws of all of the States that have them.

And many proceedings are being held up at the present time pending a clarification of this issue by this Court.

If this Court rules that there has been supersession then, of course, that is the end of the matter.But if this Court rules that there has not been supersession, the question of whether rights or civil rights, or civil liberties, or due process or anything else, has been violated in regard the Steve Nelson goes back to Pennsylvania for determination by the Pennsylvania Supreme Court.

And there is ample indication in the record that the Pennsylvania Supreme Court is quite ready to deal with those questions.

Hugo L. Black:

So, out of the question now is that — it’s about — that is my mine that we had some years ago a case related before in Alabama.

Louis C. Wyman:

Yes, sir.

Hugo L. Black:

And then we had again, a question relating to the nationwide registration law.

And we have there it just happened to get them in the field of the — of the First Amendment privilege.

Louis C. Wyman:

Yes, sir.

That is true.

Hugo L. Black:

Would you say that those differences are wholly irrelevant here?

Louis C. Wyman:

I believe that they are, Your Honor, except in considering whether or not there is a conflict or an occupation in the field by Congress.

And I believe that that question involves the question of whether Congress here was legislating in pursuance to a power which has been given to the Federal Government under the Constitution.

And that is one of the questions in regard to interpretation that will be reached by this Court in the event that the Court is of the opinion that the legislative history of the Smith Act is silent on the question of intention.

And in that regard, Your Honor, I believe that all of the references to the Internal Security Act of 1950, and the Communist Control Act of 1954, are not controlling in this matter because the question is what was Congress’ intent in 1940?

And the matter of the Internal Security Act of 1950, while it is contended reflects upon congressional intent in 1940, in a retroactive sense over some 10 sessions of Congress.

In Albertson versus Millard was faced by Judge Simmons in justice kind of way and that matter has been always returned for further disposition by the Michigan court in answer to questions raised under its own law.

But in this particular case, the legislative history of the Smith Act is not silent.

It’s very clear.

I don’t suppose that it could be anymore clearer than to have had Congressman may ask Congressman Smith on the debates on the house floor.

And those are quite competent in, I believe, interpreting and reaching a post mortem reconstruction of congressional intention, whether or not the difference in penalty’s involved.

Whether there was any difference in penalties between this Act and the various state laws.

And Congressman Smith’s answer is set forth at page 11 of my brief was this law.

It has nothing to do with state laws.

It’s perfectly clear also that when the House Judiciary Committee was considering this bill, they had specific questioning in regard to the case of Gitlow versus New York.

Louis C. Wyman:

In the case of Gitlow versus New York, quoted with approval, the reasoning of the Court in Gilbert versus Minnesota, which said that the State has a perfect right in its exercise of its essential basic right of self-preservation to make efforts to overthrow the Federal Government its own crime.

And that, of course, is all that has been done in this case by these decisions.

If the question should be reached, assuming for purposes of argument, that this Court feels that congressional intention is not evidenced by these legislative debates, as to whether there was supersession by implication, then, I would respectfully contend it must be found in order to invoke the supremacy clause of the Federal Constitution.

That there was a law enacted in pursuance to a power granted to the States under the Federal Constitution.

And I have difficulty in finding where there is such a delegation in the Constitution itself.

In Article I, Section 8, there is no such express power.

This is not a Commerce Clause decision.

This is not a question of foreign policy entrusted to the Federal Government.

In Article 4, Section 4 where it says that the Federal Government shall guarantee to each of the States a republican form of government to protect them against invasion.

It goes on to say, that in cases of domestic violence, the Federal Government shall only come in upon application of the legislature of the Chief Executive of the State.

Nowhere can it be found, that there is an express exclusive power in the Federal Government in this case.

So that we turn back to Justice Frankfurter’s remark which is quoted in Mr. Thatcher’s brief.

I believe in his concurring opinion in the Dennis case to the effect that this is one of the implied and inherent attributes of sovereignty that a government, all governments, can enact laws looking to their own self-preservation.

So that if you’ll find supersession by implication, in the Smith Act, there is in effect a fiction of an implication upon an implication.

We believe that’s a dangerous doctrine.

That it’s an artificial concept.

And that it —

(Inaudible)

Louis C. Wyman:

I have no such figures, Your Honor.

There have been very few, very few.

And I might like to say in that regard that it’s almost impossible, so far as I have been.

And my experience has been in New Hampshire, to get evidence in the face of the Fifth Amendment, not the national Fifth Amendment of the States, Fifth Amendment which applies in the state investigation.

And nobody is talking about what they’ve done after the effective date of the law, the state subversive activities law in New Hampshire.

And it’s quite a problem.

But if supersession by implication should be announced as a doctrine in a field of an implied power under the Constitution such as this, the test then becomes one of whether or not Congress having occupied the field or there being such a conflict which there is not, which the Government brief, the Solicitor General’s brief at page 10 says that for 15 years, the States and the Federal Government had cooperated in this field to the mutual advantage and mutual strength of both.

And at page 32, the Government’s brief urges this Court not to make a finding of conjectural hypothetical difficulties or conflicts between the State and the Federal Government because it is to be presumed that the cooperation which has existed for 15 years will continue to exist in the future.

And I’m quite sure that it will.

Then if that implication is found, I think it is important to consider the effect upon state laws.

We are the chief law enforcement officers of the States.

We have the duty of using our state police, our local police, to see that law and order is maintained in the States.

Louis C. Wyman:

Can it be possible, can it be reasonable and hence good sense, that the Federal Government should enact the law which involves a very basic question of policy in the first instance or the legislature and the — the Congress of the United States, making it no crime in the States to conspire, to advocate, or to advocate the overthrow of the Government by force and violence?

Can it be possible that if we know, for example, in New Hampshire, which is a small State, but rather industrially concentrated?

And in Pennsylvania, which has, as General Truscott has said, long has been known as the (Inaudible) of democracy?

Can it be possible that we know 26 people are going to meet in the house on a certain town, on a certain street, in a certain town therein to either advocate the overthrow of the Government of the United States of America, or to conspire and to do it sometime in the future?

That all we can do is to tell an FBI man about it?

Felix Frankfurter:

We can turn in, am I right in assuming that — that for these various offenses as one should say, perhaps the case what gives to the other in federal courts for various cases the transaction in Congress for activities?

Louis C. Wyman:

Which offense, Your Honor?

Felix Frankfurter:

(Inaudible), the problem arises on the subject is really something.

It depends in the — during the — have you finally gotten on this?

Louis C. Wyman:

No, Your Honor.

Felix Frankfurter:

Well, I think the Nelson case is against the, if you look at it, Court — in a certain Court in violation of the United States but presumably a certain proposition but there’s no presumption that as to the cases (Inaudible)

Louis C. Wyman:

He was prosecuted in both jurisdiction.

Felix Frankfurter:

Both?

Louis C. Wyman:

Yes, Your Honor.

Felix Frankfurter:

But, so that this is a situation I’m sure that we derive under your statute a situation that Congress in activity which could in the case which you have is must quickly draw (Inaudible) or to your — or in the state court officers in both.

Louis C. Wyman:

Absolutely, Your Honor.

Felix Frankfurter:

Is that right?

Louis C. Wyman:

Yes, Your Honor.

No question about it.

Hugo L. Black:

I assume you could also punished under the municipality for the same offense?

Louis C. Wyman:

I do believe so, Your Honor.

We have no municipal law.

Hugo L. Black:

It means you have no law —

Louis C. Wyman:

We have —

Hugo L. Black:

— there would be no reason under your argument why there should not be one in (Inaudible)

Louis C. Wyman:

Yes, Your Honor.

I believe that the political subdivisions which are referred to in both the Smith Act and the state laws adequately embrace any offenses against the municipalities.

And I, in New Hampshire, have superseded the county solicitors by order in respect to subversive activities, such as state matter in New Hampshire.

In the same sense, I would assume that would be true if a political subdivision of the United States Government were to be involved.

In the Hines — in the Hines case, the field of foreign relations involved in express power delegated to the Federal Government, no question about it, the executive was to make it and there is — they are the occasion for restricting any concurrent state power to the narrowest of fields.

Louis C. Wyman:

In this case, to say that there is an exclusive power in the Federal Government or that any federal power in this field should be restricted to the narrowest of fields, is not apt because it is absolutely impossible and I believe this to be the crux of this case.

For anybody, in any State, to conspire to overthrow that State or the Federal Government or either of them or the Federal Government alone, with the hope they’re being at once involved, the most certain offense against the peace and dignity and security of that State.

If you assume, either a conspiracy involved, if you will, in the Dennis case, or an actual act of advocacy, aimed at the Federal Government, and if you were to assume that we don’t have to wait for the pooch and if we have to wait for the pooch, if we don’t in the Federal Government, we don’t in the States, then if it were to be successful, this Court would be deposed.

The Congress of the United States would be deposed.

The legislators and the Senators from that State in the Congress of the United States would be deposed.

The Army, the Navy and the Air Force would be in the hands of revolutionists by assumption, I admit.

And using Justice Hand’s phrase, “You have to discount these things by their improbability, yes, but it is nevertheless, not inconceivable.

And were it to be successful.”

And then what about the duty of the Federal Government to protect the States against invasion?

Can it be said that it is so remote that the States are not involved, are not concerned?T

his is one of the most basic powers that the founding fathers reserved to the States and to the people thereof under the Tenth Amendment.

This is a right and inherent attribute of sovereignty because the States on no theory, even according to the government’s brief, when that speaks of paramount interest of provinces of the United States Government.

Felix Frankfurter:

May I ask — may I ask you this, Attorney General.

I may be asking you a question that you will be well and really are for propriety (Inaudible), all those reasons in this case, we have to get the role that you have that which (Inaudible) would you be free of — would you sketch how you go about discharging either reach of the two courts or whether in both courts could be found?What will you be doing?

Louis C. Wyman:

Your Honor, I’d like to answer that question by illustrating what happened in New Hampshire within the last three months.

We had a bank robbery, a federal robbery up there.

And the individual participants were apprehended and prosecuted by the federal authorities.

We have a penalty of 25 to 30 years under our state law for the same crime and the same jurisdiction.

I asked the authorities in New Hampshire, including the Superintendent of the State police and the Governor, whether or not they believed as I believed, that the seven to 15 years sentence which was given to those boys was sufficient.

Felix Frankfurter:

What was the federal offense?

Louis C. Wyman:

The federal offense was bank robbery.

Felix Frankfurter:

The national bank?

Louis C. Wyman:

National bank, Your Honor.

Felix Frankfurter:

And that will be also stated there?

Louis C. Wyman:

Yes, Your Honor.

Felix Frankfurter:

I know better than a state offense.

Louis C. Wyman:

No, that is also a state offense.

And we did not prosecute.

We had it —

Felix Frankfurter:

That had the best (Inaudible) interrogatory of the statute in taking the offense?

Louis C. Wyman:

I believe, it is, Your Honor.

I do not know of the detailed laws of the various States with respect to —

Felix Frankfurter:

But that doesn’t — the law that the special action fund makes you (Inaudible) of national bank and also teach, teach also, leave the application before the general as you offer statutes.

That just happens.

Louis C. Wyman:

Yes, Your Honor.

Felix Frankfurter:

They’re not really questions.

Louis C. Wyman:

The answer — the answer is yes.

The same as true, I believe in kidnapping, the same is true in respect to many offenses which may involve a conflict of jurisdiction or hold the lapping of jurisdiction in respect to penalties.

But as to which both sovereign jurisdictions, both sovereign powers have the basic concern.

Its like, I think, Your Honor, father and mother live under a house.

Father tells son, “If you break the window, I’m going to give you a whipping.”

Mother says, “I’m going to put you to bed without your supper, if you break the window.”

And if the boy breaks the window, its completely within the proper problems of both to have that disciplinary proceeding for both.

And under the Constitution which the States originally created, the Federal Government, we have a partnership.

Felix Frankfurter:

I’d guess in the house of the family is a complicated unit here, another federal (Inaudible)

Louis C. Wyman:

That’s correct.

That’s correct, sir.

We’ve been — we’ve been partners with the Federal Government.

I’ve finished transcripts of the testimony I’ve taken in our legislative investigation and to the Federal Bureau of Investigation.

We have worked in collaboration in the effort to preserve mutual security.

Here a person twice convicted of both advocacy of overthrow of this Government and the instruction even of this Court, comes in and says, that to perfect the more perfect central government and the strongest central Federal Government, you should eliminate the States, regardless of whether that should be considered in the light of its solace.

Felix Frankfurter:

That would you — would you go on for that and decide not to be convicted, but before, here — here is the — the Congress that’s making a (Inaudible) for the authority you invoke of the State in the Federal Government.

What happens if you sit down and (Inaudible) and try who has a better evidence through the more — what judge is more desirable to form in five years.

So they’re all relevant in consideration to prosecute aren’t they?

Louis C. Wyman:

Yes, they are for prosecutor, Your Honor.

And we do not, because the federal authorities by both presidential directive and department of justice directive are interdicted from furnishing any information to the state authorities, under the present — the directives of the federal authorities.

Felix Frankfurter:

And in a case like this?

Louis C. Wyman:

Yes, Your Honor.

Felix Frankfurter:

So, what is, what is — I don’t understand what cooperation is.

Louis C. Wyman:

The cooperation insofar has been in the sense that we have, unofficially, had tried in every event not to conflict with the federal efforts in a common goal of security.

Louis C. Wyman:

We do not wish to interfere.

We wish to help.

We have the power of subpoena, Your Honor.

They do not.

That is a tremendous thing when you considered —

Felix Frankfurter:

All right.

Louis C. Wyman:

— the superior probative evidence.

Felix Frankfurter:

The U.S. Attorney of New Hampshire has power below this case in developing this before the grand jury?

Louis C. Wyman:

Before a grand jury.

Felix Frankfurter:

Yes.

Louis C. Wyman:

Yes, but in the legislative investigation to determine whether there have been either crimes —

Felix Frankfurter:

When it comes or what I meant is this is how the two (Inaudible) and I will decide who should go ahead or they should go in contemporaneously.

Am I to understand where the — that it was directed opinion of the Bureau of Federal Investigation from helping you with evidence to a proposition that comes in schedule?

Louis C. Wyman:

I cannot answer the question because that’s a prosecution and I have had no prosecutions in the state courts.

Felix Frankfurter:

Would — would you be good enough to say what you said about the — the prohibition?

Louis C. Wyman:

The prohibition consist of a directive, first, to the Federal Bureau of Investigation not to disclose information even to state officials engaged in the same work as to the contents of their files.

Felix Frankfurter:

Even — even if it’s the same prosecution like the Nelson on what is going on?

Louis C. Wyman:

So far as — I cannot answer that, Your Honor.

I do not know that.

All I know is that we have certainly cooperated completely.

But they have been prohibited from cooperating.

I have often wanted to know for example as to whether or not certain things were more probably true.

They’re not based upon previous investigations.

Felix Frankfurter:

(Inaudible)

Louis C. Wyman:

Yes, Your Honor.

Hugo L. Black:

You don’t know why they should proceed in the States in connection with giving of evidence now on cases like this.

Louis C. Wyman:

We do not know.

We have a conference on the 29th day of this month for the purpose of working out what I hope will be an improvement in — in that respect in the common advantage with the Attorney General, Your Honor.

Harold Burton:

The Attorney General (Inaudible)

Louis C. Wyman:

No.

Louis C. Wyman:

In our Nelson case, held that Chase Nelson was a lady who was Secretary of the Communist Party in New Hampshire for many years.

Harold Burton:

Hence the case was (Inaudible)

Louis C. Wyman:

That’s correct.

Petition for declaratory judgment under our state procedure.

Earl Warren:

Mr. Barber.

Charles F. Barber:

May it please the Court.

I appear as counsel for the United States, pursuant to the invitation of this Court.

Based on the study of the Smith Act, its legislative history and the precedence of this Court in the general field of preemption, it is our view that it was not the purpose of Congress in enacting the Smith Act to supersede or suspend the operation of the state sedition statutes.

For that reason, I am appearing on the side of petitioner.

I should add that we take an issue only — we take a position only on the issue of preemption.

We think that that is the only issue before this Court, certainly, it is if this Court follows its usual principles in reviewing cases which come up in the state courts.

We take no position on the various Fourteenth Amendment issues which the court below indicated (Inaudible) in his record.

They, of course, would be a right for consideration by the Supreme Court of Pennsylvania if the — this Court reverses and remands the judgment.

There’s nothing I can add to the statement of the petitioner’s affirmative case which has already been made.

Accordingly, I’ll confine my remarks to a few of the questions which have been touched on by the Court in the course of the argument and the questions which are urged by respondent as grounds for affirming the judgment below.

These fall generally in three areas.

First, the nature of the federal interest which touches on the material which Mr. Justice Frankfurter was last questioning.

The bearing of the fact that this state legislation arises in an area whereas this Court has stressed the delicate balance is to be maintained between the public safety on the one hand and civil rights, personal freedoms on the other.

And finally, the effect of the possibility of the so-called double punishment which Mr. Justice Frankfurter questioned a few minutes ago.

The Federal Government recognizes, of course, that as applied at least to the Communist conspiracy, as we know it and as was described by this Court in Dennis, the national interest in protecting the integrity of constitutional government of the United States is supreme.

It is paramount to any interest of the State.

It may not be an interest that is different in kind because as the Attorney General in New Hampshire stressed, the States and the Federal Government in a very real sense in terms of the objectives of this conspiracy are in the same boat.

However, the United States as the Government of all, and under the Constitution, within the range of its powers, its laws are supreme.

Respondent argues in his brief very strenuously that it is only sedition against the United States which is involved and not sedition against the States.

He presses this hard.

He says it’s immaterial at page 55 of his brief, that subversion against the United States will vitally affect the States or may bring injury from them, again in arguing this problem of double punishment.

He says the case would be different if the respondent were convicted of sedition against this charge and convicted of sedition against the State.

This indeed, I think, I’m fair in saying is the theme of respondent’s brief.

Technically, I’m not sure that his position is sound.

As Mr. Truscott pointed out yesterday, the indictment in this case charges sedition against the State of Pennsylvania and against the United States.

Charles F. Barber:

And the judgment below was to quash the indictment.

Perhaps, that puts an issue only in the allegations of the indictment.

Practically, as Mr. Wyman has just argued, the proposition is unrealistic in the extreme in terms of the Communist conspiracy.But in any event, for purposes of deciding the question in issue here, we submit that it makes no difference.

This Court has made it clear that the power of a State to punish advocacy of any sort is under the Fourteenth Amendment, a very narrow power.

As Mr. Justice Brandeis said, in concurring in the conviction of Ms. Whitney under the California statute, the power exists where there’s evidence of conspiracy or incitement to permit present serious crimes or as Mr. Justice Sanford said in the Gilbert case, it may be which involved the Minnesota statute of prohibiting advocacy or interference of interference with enlistment in the United States forces.

The statute may be invoked simply in the exertion of the simple police power of the State to preserve public order at the time and place of the utterances.

For purposes of this sort of exertion of the power of the State under these statutes, we don’t think it makes any difference whether the formal object of the conspiracy is said to be the United States Government, said to be the State Government or said to be Government generally.

Indeed we think it would be extraordinary for Congress to seek to displace state laws where they are invoked in such a — a basic exertion of the police power as these examples are suggesting.

One of the factors relied on by the Court below was the assumption that the enforcement of these statutes would be hampering to the exercise of federal power.

In our brief, we stated the fact that in the view of the responsible enforcement officials of the Department of Justice, they have not, to date, they have not obstructed the exercise of that power.

Hugo L. Black:

How long has that been the view of the Department of Justice?

Charles F. Barber:

The —

Hugo L. Black:

That you could (Voice Overlap) —

Charles F. Barber:

Well — well one — one of the —

Hugo L. Black:

Without interfering with the action in the proposition.

Charles F. Barber:

The — I — I cannot answer that directly.

I can say that one of the persons who was consulted in this matter is the Director of Bureau of Federal Investigation who has held that office for throughout the period of the Smith Act.

Hugo L. Black:

So, I have the full — the statement made by him distinct to any cases that we believed.

That that’s the fact.

The fact was must not be able to look that meaning is by servitude an is subverted.

So, the problem must be handled on a nationwide basis.

Is that the Department’s position now?

Charles F. Barber:

It is the position to the extent that we think that there is power in the Congress to enact any legislation which might be necessary to make it possible to carry out the federal program without any obstruction by enforcement activity to the State or other activities of the States which are deemed to interfere with the federal program.

Hugo L. Black:

The statement I’ve just read is different from the present policy of the Department of Justice?

Charles F. Barber:

Well, I don’t know that I’m to speak on policy.

Hugo L. Black:

I understood —

Charles F. Barber:

(Voice Overlap) —

Hugo L. Black:

— you were stating the policy of the Department of Justice.

Charles F. Barber:

I — I understood that I — I attempted to say this.

That the responsible enforcement officials have said that as administered by the States, the state sedition statutes have not, in fact, interfered with the federal program under the Smith Act.

Hugo L. Black:

Is that — would this be the present policy of the Government?

This test investigated espionage, sabotage, violation, and so forth, must be conducted in comprehensive and effective manner on a national basis.

And all information must be carefully sifted out and correlated in order to avoid confusion and irresponsibility.

Is that different from the present policy of the Department of Justice?

Charles F. Barber:

Well, I assume, sir, that is another statement of the Department of Justice.

Hugo L. Black:

No, this (Voice Overlap) —

Charles F. Barber:

I assume there’s no —

Hugo L. Black:

— just for the statement made by the President some years ago.

The other one was that I review with the statements by Mr. Hoover of the FBI.

Charles F. Barber:

I —

Hugo L. Black:

Both seemed to be there in the court as I read them.

Charles F. Barber:

Yes.

And I certainly would not hear today.

I want to say that the policy was otherwise.

The question to which I’m addressing myself is the — the question of law as to the purpose of Congress in passing the Smith Act.

Harold Burton:

Mr. Barber.

Charles F. Barber:

Yes.

Harold Burton:

Isn’t it quite consistent to say that this kind of a subject calls for national supervision and national enforcement and then at the same time have a policy that there is no objection to States also doing something about it?

Charles F. Barber:

Yes, sir.

Harold Burton:

The mere fact it demands national control it doesn’t mean the exclusive control.

Charles F. Barber:

That’s quite right.

Thank you, sir.

Hugo L. Black:

Well, if it demands national control, I would suppose that you wouldn’t assert that the Attorney General vast as his power may be would have control of the state prosecution.

Would you?

Charles F. Barber:

If — if I understood you, that’s the point that I have been trying to make.

Hugo L. Black:

Would you make the point that the federal — Department of Justice has the right to control prosecution in a state for the law which is valid in the State?

Charles F. Barber:

No, no.

We would not.

Hugo L. Black:

Well then —

Charles F. Barber:

Of course, not.

Hugo L. Black:

Then if it’s necessary that this problem must be held on a nationwide basis, how can you handle it on a nationwide basis if all the 48 States can prosecute for the same thing without any control by the Federal Government?

Charles F. Barber:

Well, but there’s a question of what they can do and what they have done.

It has — the Department of Justice has never proposed to Congress that it enact legislation to the limit of its power to preclude state activity in this field.

(Inaudible)

Charles F. Barber:

Yes, of course.

We are trying to discover the purpose of Congress in enacting the Smith Act.

Hugo L. Black:

When was it enacted?

Charles F. Barber:

In 1940, sir.

Hugo L. Black:

The statement was made by the department by Mr. Hoover in 1939, as I understand it.

I think it was 1939.

So, that would be 1940.

That the federal state accept conference on law enforcement problems — problems of national defense proceedings.

Earl Warren:

Mr. Barber, what — what administrative effect was given to the — this Act after 1940?

How did the — how did the Department of Justice function with the local authorities?

I ask that because I was —

Charles F. Barber:

Yes.

Earl Warren:

— the Attorney General at that time myself —

Hugo L. Black:

Yes.

Earl Warren:

— and my recollection is that both the President and — and Mr. Hoover urged all law enforcement officers, upon the receipt of any subversion evidence, to turn it over immediately to the FBI without evaluation and without investigations of any kind on the theory that they might be stumbling into something of nationwide importance and they might even be arresting undercover FBI men who had been placed in the movement for strategic purposes.

And as far as I know, during the time that I was in that field, at least in my State, there was a very, very rigid rule among the law enforcement officers not to touch these things, but to deliver them over immediately to the FBI.

Charles F. Barber:

Well, I’ve been informed that the present instructions are much like you have described as far as information is concerned.

The Federal Bureau of Investigation has asked the State to supply any information which comes into their possession, which they think bears on the subject matter.

I understand that by and large, the States have been very cooperative in supplying such information.

I’m also informed that it has not been a two-way street in the past in the sense that the Federal Government has not supplied information to the state governments except such as in the public as is in the public domain.

Felix Frankfurter:

Mr. Barber —

Charles F. Barber:

Yes.

Felix Frankfurter:

I want to ask you a question but I must — I must concede that by asking you is I’m having you to state so I understand the scope of what you told us a little while ago about the absent of conflict between federal and the state authority that you (Inaudible)

Charles F. Barber:

Yes.

Felix Frankfurter:

— and actually on the vehicle of what (Inaudible) responsibility as tot the State.

As I understood you to say that no conflict has developed there between federal and state authority.

Felix Frankfurter:

Is that right?

Charles F. Barber:

That is correct.

Felix Frankfurter:

Now, what I want to know is that — was that — that report which you’ve given us that of — as of the present, if it’s a –a statement as of today looking back on the past?

Charles F. Barber:

Well, this is a statement at least as of yesterday.

Felix Frankfurter:

Well I [Laughter] — I commend your respect to accuracy, evidently.

In other words, if the statement, any post mortem (Inaudible) is this —

Charles F. Barber:

It is a statement —

Felix Frankfurter:

All right.

Charles F. Barber:

— simply of —

Felix Frankfurter:

Now — yes.

Charles F. Barber:

— the fact of the last 15 years.

Felix Frankfurter:

I should like to put this to you —

Charles F. Barber:

Yes.

Felix Frankfurter:

— and, infer this that the trouble entirely.Mr. Justice Harlan brought us back a minute ago to the — to the question of this case.

Namely, we have a statute of Congress.

We have state laws and the question is, whether statute of Congress has displaced them?

Charles F. Barber:

Yes.

Felix Frankfurter:

That’s the — that’s the question.

Charles F. Barber:

Yes.

Felix Frankfurter:

Now, relevant from that, certainly is not what a legislature of 15 years after his proposal and is enacted, think they do.

Charles F. Barber:

That’s right.

Felix Frankfurter:

If we do —

Charles F. Barber:

Except so far.

Felix Frankfurter:

(Voice Overlap) — for that kind of thing, I can’t imagine a worst chaos and that legislative covered 15 years later what they thought they had in their heads.

They — they wouldn’t know today what they had in their heads.

These would be in their foot if they didn’t know.

Now, secondly as to this information, I should like you to probably ask all about it, and I haven’t.

Is it relevant?

Is it present?

Is it proper?

Felix Frankfurter:

I don’t mean improper model, but is it proper for us to consider what an administrative official thinks has been or has not been the working of a team of legislation when we’re called upon to decide whether this Act in 1940 is clinging to that insofar as State is — State is concerned and it’s taking the field wholly for the Federal Government.

Now, to me, that raises a very serious question.

I just want to —

Charles F. Barber:

Yes.

Felix Frankfurter:

— whether we have to be told when questions like these arise that whoever was temporary — we’re all temporary in this world — the official may be for whatever reason, he comes and tells us (Inaudible)

Is that relevant?

Charles F. Barber:

The court below, of course, made certain statements in this area which were what provoked —

Felix Frankfurter:

I’m — I’m —

Charles F. Barber:

— our comment of fact.

Felix Frankfurter:

I hope I admitted freely that during your duty in my view —

Charles F. Barber:

Yes.

Felix Frankfurter:

— and doing it very well.

Charles F. Barber:

I think in some instances, in these preemption cases where matters of regulations have been before the Court, the Court has considered how the two systems have worked as casting some light on what much and must have been the purpose of the legislators when they approached the problem.

Beyond that very slight weight, I think it is quite distant from the issue which turns on the purpose of Congress —

Felix Frankfurter:

From my point of view —

Charles F. Barber:

— in 1940.

Felix Frankfurter:

My — my worry is a little beyond the remoteness isn’t merely the question of remoteness.But was the best of intention is the best of motion.

Public officials have different interests as to mode.

They have different convictions that they have and generally our law is wisely (Inaudible) suppose more than likely a statement.

Charles F. Barber:

Yes.

I’d like to deal just one minute with the question Mr. Justice Black raised bearing on whether the rule is different in free speech cases.

What is the bearing of the fact that this law bears very importantly on personal freedoms, on liberties, on rights which are basic in our system?

This, of course, was an important factor in the Hines case.

I think that it might throw some light on this question, on this suggestion, if I characterize it as amounting to the statements that the States cannot be trusted to enforce state legislation without violating constitutional rights.

If I put it in that form, of course, it could be brought to bear on any state criminal proceeding where a defendant could be so prosecuted in a manner inconsistent with the requirements of due process as they have developed under our law that a federal constitutional right would be violated.

In this area, we suggest we have to think of the question as concerning a constitutional application of these state laws.

Otherwise, we are mixing constitutionality under the Fourteenth Amendment with the issue of preemption under federal supremacy.

If we assume a constitutional application of those laws, it may be that we are looking only at their application in a very narrow area, where the police power is vitally at stake.

I referred a moment ago to Mr. Justice Brandeis’ characterization in the Whitney case in upholding the California statute.

The state conviction would not be set aside where the evidence showed conspiracy or incitement of, for the commission of present serious crimes.

Charles F. Barber:

When these state laws are applied in that area and, of course, they have been applied in that area, then, there is a state interest which perhaps is manifest.

Now, we think it would be improper to apply the preemption doctrine to an area that goes as far as an unconstitutional application of the state statutes because I doubt that it is reasonable to suggest that Congress would have had any such sophisticated notion of the extent of their preemption of the field.

I think either they intended to displace these state laws or they didn’t.

If that is right, the question is tested against a constitutional application of the state laws and I think it would be extraordinarily to assume that Congress would displace them where they were invoked in a exercise of this basic police power.

Felix Frankfurter:

Mr. Barber —

Charles F. Barber:

Yes.

Felix Frankfurter:

— may I ask whether your study of these, to me, very troublesome supersession problems, you have found that when this Court has concluded that a federal act as this has displaced it or displaced it with state laws that there was very explicit manifestation by Congress that such should be the result, rather than a study by this Court for the consideration of the implication, the full implications of our federal statutes.

That on the whole, it is important that a federal law to be exclusively governed, the transaction means to a particular field even though the local law may be supporting us or it may be accordance with the federal court.

I remind since the (Inaudible)

Charles F. Barber:

Yes.

Felix Frankfurter:

Are you familiar with that?

Charles F. Barber:

Surely.

Felix Frankfurter:

We know —

Charles F. Barber:

Surely.

Felix Frankfurter:

— what I believe to be incontestable that there wasn’t the slightest indication —

Charles F. Barber:

Yes.

Felix Frankfurter:

— that Congress ever thought of just —

Charles F. Barber:

Yes.

Felix Frankfurter:

— making the statement.

So, not the slightest.

The Court’s founded in that fact.

And I found from the decision of this Court what is there.

But I do not think it can be challenged and this should be obvious reading.

That there was the slightest indication that Congress — that the State all go to sleep.

Charles F. Barber:

I — I think that’s a fair statement of Cloverleaf and there are number of other cases in the field.

I — I would made this general observation though, and that is, that all of the cases so far as we know, where this doctrine of preemption has been held to apply, where there wasn’t direct conflict, where the Court looked as you said, to the whole operation of the federal system, the whole context of the subject matter dealt with by the statute.

Everyone of those cases has concerned regulation of some subject matter.

In some cases, you’re blocking out how far Congress went and how far they didn’t go.

In other cases, whether they took in all aspects of the — of regulation dealing with a certain subject matter.

But never in its history has this Court, under the doctrine of preemption, displaced an ordinary criminal statute defining in punishment and punishing conduct, characterized as criminal which was separate and apart from any purpose of regulation.

Felix Frankfurter:

I — I was looking —

Charles F. Barber:

Your national —

Felix Frankfurter:

— into myself merely to the question of how this Court has to go about it finding whether the — whether the state law should appeal this and — and this is my impression or the impression left on my mind, when I did go through those cases that on the whole, one has to do — the Court does precisely what you said.

Charles F. Barber:

It looks at the —

Felix Frankfurter:

The Cloverleaf —

Charles F. Barber:

Yes.

Felix Frankfurter:

— the Cloverleaf, it did what it did in Kelly and the opinion by Chief Justice (Inaudible) it examined all the statute because there wasn’t any light except the statute.

Charles F. Barber:

Yes.

Felix Frankfurter:

And it came out, contrariwise.

And he said yes, we cannot say that the federal act displaces the local one in the court of Washington State.

Charles F. Barber:

Yes, yes.

That’s —

Felix Frankfurter:

A lot of times I’m addressing myself to the means to the — not so much for criteria but the process by which this Court has to make the accommodation between state law and federal — under federal law dealing with the same subject matter when we get no light from so-called intention of Congress except what the statute themselves furnish.

Charles F. Barber:

Of course, you must look at the whole subject matter.

We have no other view on that.

Felix Frankfurter:

One test on the early cases about counterfeiting way back in (Inaudible)

Charles F. Barber:

The — you’re thinking of the double punishment line of cases.

The first one —

Felix Frankfurter:

It was way back.

It’s one of civil war.

Charles F. Barber:

Fox versus Ohio, I think was the first of that —

Felix Frankfurter:

(Voice Overlap) —

Charles F. Barber:

— line of cases.

That was a state conviction for passing a counterfeit United States coin.

It was there argued since the United States has the power to coin money that this could not be a crime under the State.

It was upheld as the state conviction was upheld as a private cheat and offense against the criminal jurisdiction.

Felix Frankfurter:

But that’s a — that’s a different situation.

I mean —

Charles F. Barber:

Well, we don’t —

Felix Frankfurter:

Let’s have the State that the — the single act may, of course, singled physically kind of act that may be you can take from a killer man or you may block or you will distract — through mail carrier, the carrying of mail.

Charles F. Barber:

Yes.

Let me use your example in California resort.

A — a federal statute may punish an assault on a federal officer.

It also may invoke a state interest in preventing street problems.

Well, now, when you’re looking at the full — of — at the scope of the state constitutional power, this kind of statute can be invoked and has been invoked to prevent street problems.

Now, I am not aware of any instance where this Court has told the state courts how to phrase their legislation.

So long as they confine the offenses they punish to those within their criminal jurisdiction and do so, so as not to contravene a federal right, this Court has let it stand.

Felix Frankfurter:

As I understand the New Hampshire statute or the Pennsylvania statute is a carbon copy of the Smith Act roughly of this.

Charles F. Barber:

For present purposes, yes.

Felix Frankfurter:

Isn’t that right?

Charles F. Barber:

Yes, sir.

Felix Frankfurter:

So that differs from the Fox againts whatever it was and also the Duke situation (Inaudible)

Charles F. Barber:

Excuse me sir – I’d be glad too.

William O. Douglas:

I say in the brief to you.

Charles F. Barber:

In — in the brief, we discussing, yes.

The point — the point is made that treason against the United States is something different from treason against the State.

Perhaps, in the civil war context of that West Virginia case or in the war of 1812 context of the New York case.

There was such a thing as a treason against the United States Government which was separate from a present substantial injury within the police power of the State.

The Southern States may have, I — I don’t want to be the historian on this, but they may have and entertained view that the objective of the war was to overthrow the Federal Government without having — and — and impose their will on it as far as Southern objectives were their concern.

That might have been separate and apart from any purpose to overthrow the governor of Massachusetts.

That is, of course, quite a different situation that we have in these sedation statutes invoked against the communist conspiracy where the doctrine is directed at established Republican governments in general.

William O. Douglas:

You mean with the prosecution during the State’s power (Inaudible)

Charles F. Barber:

No, but if a person in Pennsylvania, in downtown Pittsburg, made a speech inciting treason against the United States and there was a unrest and an outbreak of — of riot was imminent, I think the States would have the power, the State in exercise of their — or the police power to move in and stop the treasonable utterances.

I — I appreciate there is an overt act in the specific definition of treason that may distinguish the cases.

Felix Frankfurter:

Well suppose the State — I — I don’t quite see why he’s so — from your point of view, why he is so convincingly felt they’d basically say no to Mr. Justice Douglas’ question.

Assume the State treason statute is in terms the basis of the characterization of it in the Federal Constitution, assume the same requirement as to quantum of proof, et cetera.

Why do — I assume you —

Charles F. Barber:

Well let me state —

Felix Frankfurter:

— will still say no, why do you say —

Charles F. Barber:

So, let me state two cases.

Charles F. Barber:

If there is a treason against the State and overt act within the State looking toward the overthrow of the state government, then it is punishable in Pennsylvania.

But if there is a treasonable act in Ohio directed towards the United States Government, I question whether that’s punishable in Pennsylvania.

That’s the distinction I was trying draw with that civil war analogy where there might be —

Felix Frankfurter:

What is due process when you say you’re punishing for an act not committed within the State?

Charles F. Barber:

Well, of course, my great effort in this is to then is to keep the two questions of due process on the one hand and presumption on the other, separate.

Earl Warren:

Mr. Thatcher.

Herbert S. Thatcher:

May it please the Court.

The State of Pennsylvania and the Federal Government had each enacted an identical law proscribing sedition against the United States.

The defendant or respondent Nelson was tried and then convicted and sentenced in the federal — in the state courts under the state law and subsequently was tried and convicted and sentenced in the federal courts under the federal law.

This — this, of course, immediately gives rise to the basic question here which I agree with Mr. Truscott on, that the — whether the Pennsylvania law is superseded or suspended by the at federal law.

However, in addition to that, there are basic considerations of civil liberties involved here which I’ll dwell on it at length a little later.

One — one such consideration involves the question of dual punishment.

Another involves possible transgressions of personal rights and liberties of the delicate but very volatile subject to sedition is that for enforcement at the local level is subject to local prejudices and passions, and perhaps local political ambitions.

I suppose that fairness treat them to even most reviled of our citizens is inherent on the Constitution.

I have no sympathy with Nelson’s teachings, but I have faith and sympathy for the proposition that the crime of sedition against the United States should be prosecuted and punished by the Federal Government alone.

I cannot believe that Congress, in enacting the Smith Act intended to create a — a situation which, an early justice of this Court described as something worse than oppression.

That is, where under an individual that’s subjected to not only two punishments perhaps, but perhaps, many punishments that municipalities are to pass these laws that they have.

Felix Frankfurter:

Have you examined the indictment in both in applications?

Herbert S. Thatcher:

I have, Your Honor.

Felix Frankfurter:

Are they — I have I not —

Herbert S. Thatcher:

In — oh, both Nelson cases?

Felix Frankfurter:

Well, I mean the state and the federal.

Herbert S. Thatcher:

Not — not closely.

Felix Frankfurter:

This is — this is the Nelson which case is now before this Court for conviction absence requirements of the conviction is the federal court.

Herbert S. Thatcher:

That is correct, Your Honor.

Felix Frankfurter:

Now, what I would like to know is I’ve examined these are indictments but I would like to know if the indictment is substantially proclaimed?

Herbert S. Thatcher:

I believe that they are.

Neither can I believe that Congress intended to leave the prosecutions for the crime of sedition against the U.S. to the diverse and unregulated and perhaps historical handlings of local state and municipal offices.

These considerations together with the major, the very basic consideration of supersession make this case, I suppose, a very important one.

But important or not, this much, I respectfully submit.

Herbert S. Thatcher:

Win or lose this case, Nelson remains in prison for his crime of sedition against the U.S.

To lose this case, I think something important from the concept of federalism for what has been lost and something irreplaceable in our concept of civil liberties.

The Supreme Court of Pennsylvania in the a four-to-one decision has held that the federal law supersedes the State.

I disagree that the concurring opinion of the three justices was half-hearted.

They expressly concur in every court, in every respect.

Before examining the various considerations applicable to a determination of congressional intent and a determination of the supersession issue, it is important, first of all, to know the issue to what is actually before the Court.

We have involved, here, solely, sedition against the United States as such.

Not sedition against the State or not even sedition against the Government or against organized Government general — generally, which I suppose would necessarily included this thing.

On page 58 of the transcript, the majority opinion states as follows in request to what is — in respect to what is involved here.

And, while the Pennsylvania statute proscribes sedition against either the Government of the United States or the government of Pennsylvania, it is only alleged sedition against the United States with which the instant case is concerned.

Out of all the voluminous testimony, we have not found nor has anyone pointed to, a single word indicating a seditious act or even utterance directed against the government of Pennsylvania.

And so, even the minority opinion of Judge Bell — Justice Bell relies heavily on the proposition that since the Federal Government has been somewhat remise in protecting its — in protecting the U.S. against sedition, the State had every right to step in to fill the breach.

So, we have, in — in effect, a unanimous determination by all the justices that this case and this prosecution and this conviction involved the crime of sedition against the United States.

That serves to greatly —

Hugo L. Black:

Is that position of yours challenged?

Herbert S. Thatcher:

You’ve — you’ve heard the —

Hugo L. Black:

Was it challenged in the brief?

I didn’t hear the challenge in the argument.

Herbert S. Thatcher:

Well, the — the argument is that it makes no difference whether the evidence and the — the fact shows sedition — seditious utterances against the United States and not the State that those utterances at the same time constitute utterances against the State and that ipso facto sedition against the US is — is sedition against the State.

The answer to that argument is that first, this begets the different — different political capacities and sovereignties of the two governments which are distinct which has their own elected officers and which do operate, separately.

I don’t think it’s impossible to conceive of a seditious act against the State, for instance, in the regime of (Inaudible) Long.

It might be that there might have been fanatics who were — would conspire to overthrow the state government there while at the same time being completely loyal to the Federal Government.

And perhaps —

Hugo L. Black:

But as I recall before 1776, they’d arrest many people who want to overturn the national Government, who had no desire to overturn the Government in the separate colonies.

Herbert S. Thatcher:

That is — that is also true.

Yes.

And to give us another possible example of — of sedition against the State as distinguished from the United States in the present conflict or disturbances over the integration problems.

There might be some fanatics who had — who might, while being loyal to the Federal Government, advocate some type of sedition against particular States in respect to that problem.

I think — I think that to say that the — the States that the sedition against the United States at the same time an ipso facto constitutes sedition against the States, confuses interest with jurisdiction.

Certainly, no one denies that the States would have a great interest in the problem of sedition against the United States and that they would be affected and perhaps vitally affected by any attempts at sedition against the United States.

Herbert S. Thatcher:

That, however, cannot under our federal system, confer jurisdiction on the States to enact laws on the subject, anymore for instance than to say, “If there were disturbances in the Mexican border,” and serious disturbances which did threaten the lives and properties of the citizens of Texas, anymore than such disturbances which would be very real, would warrant the State of Texas from defending its ranges across the border or from — or for — in adopting some law to cope with that problem.

The problem is one for the United States to cope with and the United States alone.

Stanley Reed:

Made it that the State, of course, would have the right to punish breach of peace in the statement.

Herbert S. Thatcher:

Of course.

Or — or if the seditious utterances gave rise to any riots or anything of that nature or if there are any actual acts of violence committed along way, of course, the States could take care of it and there are adequate laws in the books to do that as stated by the Supreme Court of Pennsylvania in its decision.

So, there’s no real problem of the States not being able to protect itself in — in view of court’s decision below.

(Inaudible)

Herbert S. Thatcher:

Well a —

— in the word itself.

Herbert S. Thatcher:

— a — a state statute based on a purpose of preventing riots or basis of the peace would be one thing.

But that is not here.

It was not so construed by the State Supreme Court.

In fact, the Court is very — that the — the Supreme Court here went out of its way to find out that this was not a breach of peace statute.

But this was solely a statute directed against treason or against the sedition against the United States, as such, so distinguished that type of protection from the protection that the statute undertook.

I think —

(Inaudible)

Herbert S. Thatcher:

It —

(Inaudible)

Herbert S. Thatcher:

Well, except that we have a direct construction by the State Supreme Court here that the statute is — appears as sedition statute and therefore that’s precisely the whole problem of the fellow supremacy.

Harold Burton:

Well it is, is what you’re saying that merely because the State uses the word sedition against the United States in the statute that that’s what makes it?

Herbert S. Thatcher:

No, not that didn’t —

Harold Burton:

I — I don’t quite catch the difference between the —

Herbert S. Thatcher:

Well, the difference is —

Harold Burton:

— the authority to stop acts of sedition because they’ll make a breach of peace and not being able to punish for seditions directly against United States.

Herbert S. Thatcher:

Well, one — one very great distinction which admittedly occurs is this.

That it’s — it’s in the extent of punishment of breach of peace statute was, I assume, have a much less punishment than 20 years imprisonment or —

Harold Burton:

Why so?

Herbert S. Thatcher:

Well —

Harold Burton:

A serious breach of peace like murder for instance?

Herbert S. Thatcher:

Well there — there — it’s true.

Herbert S. Thatcher:

There’s no constitutional limit beyond the — the impressive punishment provision of Constitution.

But in practical effects, I think there would be a distinction in punishments and there would practically be a distinction in prosecution methods —

Harold Burton:

(Voice Overlap) — depends on a breach of peace?

Is murder a breach of peace?

Herbert S. Thatcher:

Murder, a breach of the peace, yes.

Yes, Your Honor.

Of course, this — this case involves no such aspect whatsoever.

There’s no evidence of violence that’s involved here but (Voice Overlap) — to protect them with this.

Felix Frankfurter:

Yes, but they need — (Inaudible) to sustain them through the anti-riot statute — does it need to be the statute?

Herbert S. Thatcher:

It does not.

Felix Frankfurter:

Or in Pennsylvania they might kind of report by you wasn’t it?

Herbert S. Thatcher:

I’m saying to that — I’m saying that it is not that.That it is a pure seditious or a statute against sedition.

I think this whole concept of stepping in because of —

Stanley Reed:

It’s because of the State’s power to punish them.

Herbert S. Thatcher:

Yes.

I think this — this whole concept of the right of the States to step in because of a great interest in the subject and that of the State has here is a very dangerous one.

By that same reasoning, the State could, I suppose, undertake to help the Federal Government and enforce most any of its laws.

It could pass the laws making it a crime not to file and settle income tax reports on the theory that it’s important to the States that the Federal Government had adequate money to defend itself from the country and to supply the State in times when the States needs money and so on.

There’s no limit, in other words, to where that concept might lead.

And we have to bear in mind that we have here a — the problem of federal supremacy, the federal versus the state government in their respective fields of operation.

The treason cases were mentioned —

Stanley Reed:

Are you, later, going to discuss the theory under which some acts are — tend to interfere with the Federal Government’s actions?

Herbert S. Thatcher:

Yes, Your Honor.

I’ll come to that shortly.

I’ll mention the treason cases for just a moment.

The Ex parte Warrior and People versus Lynch, early West Virginia and early New York cases held specifically that — that the State of — the States cannot punish for treason against the U.S. against the United States and give various reasons for that reasoning, all which, I think, are directly applicable here.

Treason is distinguishable only in degree, I think, from sedition.

It involves the existence of the governments in both cases and that is what we are concerned with here.

Now, returning to this issue of supersession, it’s our basic position here that the federal interest in the subject matter is — is so as such and it — it is so dominant and the — the nature of the problem is such that’s — once the Federal Government has undertaken to make some legislation on this subject, that legislation then must become exclusive, must become exclusive, ipso facto, exclusive.

That involves, first, I suppose is an examination of the nature of the power which we just are concerned with here.

Herbert S. Thatcher:

No one denies that the power is of — the powers are being exercised here to protect the Federal Government from sedition, springs from the various, very highest of sources Article 1, section 8 of the Constitution provides for the common defense and general welfare is one base of the power here.

Another is Article 4, Section 4, guaranteeing the States a Republican form of government.

Justice Frankfurter in the Dennis case, indeed the whole court in the Dennis case, gave specific recognition to the very high nature of the power being exercised from the Government — Federal Government undertakes to proscribe sedition, springing from the very roots of sovereignty, I think is one of the phrases used.

The Government has stated in its brief and the States have not disputed, the proposition that the national interest in its — in its subject is obviously paramount.

Further, that the problem is a national problem which caused resolution on the national scale.

That — that sets off the type of power here which is here being exercised from other types of power, for instance, the power under the Commerce — Commerce Clause in which the supersession issues are most usually raised, posing it as a much — that there’s a power with much higher nature.

In addition, we have entanglements or considerations of foreign relations and foreign policy.

This Court in the Dennis case has again pointed out those considerations, the foreign policy considerations in respect to any attempt to proscribe sedition.

The Government in — in its brief here, the Federal Government in its brief here and in — in its brief in the Dennis case was very explicit in finding out the foreign relation aspects of any attempt to deal with sedition in present day and — and present times.

As a matter of fact, the Congress when it passed the 1950 Internal Security of the 1954 Communist Control Act, specifically enumerated various foreign relation aspects of the problem in its preamble to these pieces of legislation.

Finally, another consideration funneling up to the source of the power that’s being here exercised, is the — the civil liberty aspects of the case.

We are dealing here with sedition which is advocacy or speech.

It isn’t acts of violence or — or physical acts of sabotage or so on.

It involves speech making, avocations of various source, which is in the realm of First Amendment protections requiring that the Attorney General has stated, “A very delicate balancing of various considerations.”

The First Amendment protections on the one hand, protections against the — protection of the national security on the other.

However in any event, balances or balances things which should be undertaken, I should think by the Federal Government and not by 48 States.

It should be undertaken on — on uniform single basis rather on a diversified multiple basis.

Thus — thus we are — thus in speaking of the power that has here been exercised, we are on an entirely different plane and in an — an entirely different category from the usual supersession case where we’re worried about the — the right of the States to label cans or to — to make regulations of its highways or to undertake any of the other usual traditional state functions under its state police powers.

Indeed, I think it’s very questionable that it can be said that the State is exercising any traditional state police power when it attempts to proscribe sedition against the United States as distinguished from sedition against the State.

As noted by the concurring opinion below, sedition against the United States is not a local offense, it is a crime against the nation.

Traditionally, police power is exercised in respect to matters of local interest or local concerns, never has it exercised in respect to matters which are the concern of neighboring States of all of the States or citizens of all of the States.

And that is precisely what was done here, when any State attempts to legislate in respect to sedition against the United States.

So I think it can be a question that we had even a field in which the State is exercising traditionally an aspect of its police power, at least insofar as sedition against the United States is concerned.

Hugo L. Black:

Mr. Thatcher, you said a few moments ago that some municipality as you is likely to (Inaudible) do you have any in your brief?

Herbert S. Thatcher:

I think they’re reflected in (Inaudible), we have (Inaudible) cite — cited in the brief.

But we haven’t got the list of municipalities in the brief.

But there are references to sources from which that can be obtained.

Mr. Thatcher, if this Pennsylvania statute has been directed solely to subversive activities directed to the Commonwealth of Pennsylvania, what would be your view?

Herbert S. Thatcher:

Well, that’s not — that’s not that this case, but certainly we wouldn’t be able to make many of the arguments we here making.

We might have a problem of — of specific supersession because the Smith Act does undertake the proscribed sedition against the United States, as well as the individual States.

Herbert S. Thatcher:

And they might be argued because of that.

That there is a supersession.

But you couldn’t argue that the — the States are not exercising their traditional police power or that are interfering with the federal program assigned.

Hugo L. Black:

Have you quoted the section of the Smith Act which —

Herbert S. Thatcher:

Well that’s on —

Hugo L. Black:

That was the —

Herbert S. Thatcher:

— that’s on page — it’s on the Government, of the appellant off of Pennsylvania’s brief page 2 and 3.

Page 2 contains the Smith Act, 3 contains the Pennsylvania Act.

Hugo L. Black:

What section makes it applicable to sedition against the States?

Herbert S. Thatcher:

Well, the Smith Act, lower the line of the first paragraph revealing the — who willfully advocates, advises and so on with — in the sense of propriety of overthrowing or destroying the Government of the United States or the government of any State territory and so on.

First paragraph.

Now, since — since the subject matter, we are concerned with here, sedition against the United States is one of predominant federal interest in which admittedly — which admittedly, must be held on a national basis, to be handled effectively, and since the Federal Government has actually exercised its constitutional powers in this respect, in the Smith Act, specifically, and which describes specific penalties, and since the State is not acting in a traditional field of police powers, this case must be decided on principles entirely different from the usual supersession case.

And the presumptions are entirely different.

The issue —

Sherman Minton:

On account that you said that this should be decided on a —

Herbert S. Thatcher:

On a different — on — on — the approach here must be entirely different from the usual approach and the usual supersession.

Sherman Minton:

Well, I didn’t catch why.

Herbert S. Thatcher:

Well, I — I was going to get to that, Your Honor.

The reason — we’re not concerned either with — with the diversity or the identity or the or even conflict or — or even the compatibility of the two statutes, so, their ability to live together.

We’re concerned with, solely, the question of jurisdiction has a state of power, in view of the federal exercise of this type of power to legislate in the identical field with identical legislation.

The question is one of power and the usual —

Tom C. Clark:

It isn’t this case.

What if the — if the Smith Act or no other federal sedition act was in existence, would the State pass a — a sedition act against the United States?

That Act permitted the —

Herbert S. Thatcher:

That is — that is not this case.

There — there is – there are a good arguments that the power, even though not exercised is exclusive but has certainly a less firm argument than the argument that when Congress has taken the thing and handed as exercise of jurisdiction – that the jurisdiction then becomes exclusive.

Tom C. Clark:

There was discussion at one time in America about the thing of sedition act as to whether the Federal Government and the States?

Herbert S. Thatcher:

Oh yes in the – in the Gilbert case, Justice Brandeis did hold or did in his dissent, did hold that the federal power in that field was exclusive even if not exercised by — by virtue of its nature.

Here we argue that by virtue of the nature of the power plus the fact that the Congress has exercised, specifically, jurisdiction in specific respects that then, on that account, it has become exclusive.

Hugo L. Black:

Do you draw any company to the fact that the Constitution suggests punishing despite it was the same offense?

Herbert S. Thatcher:

Yes I am coming to that in a minute.

Hugo L. Black:

Even though a State may — may have been held that does not apply to the State that you would not want to presume that Congress (Inaudible) one man punished twice with the offense contrary to — claim their position with the federal constitution?

Herbert S. Thatcher:

Yes, yes, Your Honor.

We — we draw quite an inference from that.

We — the — there’s no question to whether — whether or not dual or double jeopardy is involved here and now, it — it isn’t because the prosecution was in the state court first, so it could not be double jeopardy.

But the question of dual punishment certainly is very much here, very much here.

And this — that is, as described by Justice Frankfurter, an important aspect, at least to civil liberty, and it’s not to be presumed in the absence of some affirmative indication, I suppose, that Congress was willing to impose dual punishment.

Hugo L. Black:

Have there been any statutes heretofore, passed by Congress where the (Inaudible) State to bring about trial which was to subject then to being punished twice by the identical conduct?

Herbert S. Thatcher:

No, there haven’t.

Hugo L. Black:

That’s true in the prohibition by all, I wonder.

Herbert S. Thatcher:

That, as matter of fact, they’re not to have (Inaudible) that in the — and the prohibition law is the only single example of where Congress specifically as well as the Constitution, specifically, gave both the Federal Government and the States the right to — to have prosecutions in the field.

Hugo L. Black:

Well, did — was there anything in the prohibition laws?

I’m not — I’m asking because I’m not — I do not know which indicated the desire on the part of Congress that the same conduct, the same individual should be and have two punishments imposed.

One by the State and one by the Federal Government.

Herbert S. Thatcher:

I think it’s specifically, so stated.

I think the prohibition act specifically, so stated that both prosecutions could be by both governments, specifically, in the Constitution.

They give the man, as so stated.

So, there’s no problem from there.

Hugo L. Black:

Well, but did it say that — may — maybe it did.

Did the Act or the Constitution say or incurred the idea of both prosecuting.

I understand that they’re both to be prosecuted but it would carry it — with it the idea, that if both should prosecute for the identical offense so as to guarantee that they would be punished twice for the same offense.

Herbert S. Thatcher:

No.

There was no — that would — they’ve secured vindictiveness and there’s no such intent indicated, although there was allowances for the possibility of — of punishments in the two areas.

That was the Lander case for the one.

Were there — were there punishments, double punishments suffered by anyone under the prohibition law?

Herbert S. Thatcher:

I don’t know.

There — there were.

The — the Lander case this one where there was but that was by virtue both constitutional and direct statutory authorization.

Hugo L. Black:

Well, there was quite enough of that as I recall it.

You have the punishment not merely by the Federal Government but by the State and by the municipality for the same offense and that was frequently done as I recall it.

Herbert S. Thatcher:

In the prohibition essence, but that’s the only one that I know in the history of this country where that was in any way incurred.

And that’s why by virtue of the constitutional amendment on the subject.

The — the inquiry here rather than as to any intent as of Congress to supplant state legislation, the inquiry was not directed in that direction, rather the inquiry is whether Congress has manifested — manifested consent that the States can step into this field.

That is the inquiry.

And that is — but we are – that is what we have to look for in the statute or in its legislative history.

And the decisions so hold as I will come — as I will point out in a minute.

That is, the presumption is exactly the opposite from the presumption in the usual supersession case.

The presumption here is that there is no supersession and we have to find some affirmative vindication of congressional consent to the sharing of its jurisdiction before we can say the States can exercise or can enact or enforce the little Smith Act in this case and in other cases.

That — well that was the — the holding of this Court many years ago in Houston versus Moore, the case we rely on very heavily which the counsel for the States have thought to distinguish but which on examination of the case, I — I think you will find that their distinguishment is not quite accurate.

The case involved an old — an old statute of the State of Pennsylvania.

This is in post revolutionary wartime which made it a — which made it a crime for a person to fail to respond to a call by the President to the federal militia.

The Federal Government had passed the law to the same effect.

We’ve much the same situation here as we have there, then.

An individual had failed to respond to the President’s call to the federal militia and —

Hugo L. Black:

Did you say Smith versus Moore?

Herbert S. Thatcher:

Houston verus — Houston versus Moore back in (Inaudible)

In a majority decision of opinion written by Justice Washington, the Court held that the Pennsylvania law was not invalid but it did so by construing the Pennsylvania law, that is very important because the case is — is a difficult one to read.

That it did so, solely by construing the Pennsylvania law to be one which authorized a state militia to prosecute under the federal law and the majority opinion as well as the dissent of Justice Story was very emphatic, very emphatic that had the State attempted to enact the identical federal law and prescribed its own penalties and enforce it in the state courts or in the state court marshall, but then the law would have to fall under the theory of federal supremacy.

On that — on that holding, on that reasoning is identical to the situation we have here.

Here we have two criminal statutes.

In the Houston versus Moore, there’s a criminal statute.

Here we have a criminal statute.So this — this distinguishment between regulation and criminal statute is no quite conclusive.

There, the criminal statute — the federal power is being exercised in the paramount federal field.

That was brought out in the course of both minority — minority and majority decision — opinions there.

And there, it was held, specifically, by all — all of the justices that had the Act — the Pennsylvania Act, attempted to — to proscribe or prescribe the identical federal offense, making it a state crime and enforced it with its own — or furnished it with its own penalties, and then — then the law would have to fall.

And it was further stated that the Pennsylvania law could be sustained only if Congress specifically indicated its consent that the State should assist in — in the federal — in — in enforcing the federal law with respect to enlistments in the federal militia.

Hines versus Davidowitz is a — another case upon which we rely heavily.

There we have the foreign relations that there — that, of course, was the alien and sedition case in which the state sedition laws and I think there were some 19 were superseded in that case were held unconstitutional.

First, by reason of the superior or dominant nature of — of the dominant federal interest in the subject matter and second, because of the element of civil liberties involved to the personal rights and freedoms, which it was the primary responsibility of the Congress to protect.

Hines is therefore very relevant here on those two propositions.

Herbert S. Thatcher:

And as — as I indicated the fact that there were a number of States which had — also had alien laws did not deter this Court and decide us from defining federal supremacy.+

I think it’s significant to note those same alien and sedition laws which were the subject of the litigation on the Hines case also contains the identical sedition provisions that we have here.

Title 1, I think, contained the alien — the alien clause and Title 3 contained the same identical sedition law, this 1940 Smith Act that we have here.

There’s one body of law at that time since it’s been recodified into separate sections.

These — these courts — and even in the cases where there is no big dominant federal interest and where the State is legislating in a field which is traditionally its own, that is under its traditional state police powers, this Court has many times held that the States cannot enact identical — identical legislation and prescribe different or heavier or lighter penalties on the theory that once Congress has enacted a law specifically under an exercise of its — one of its powers, the States simply cannot be permitted to enact this, the identical law.

Hugo L. Black:

Why?

Herbert S. Thatcher:

Either as a help or for the — because of the principle of federal supremacy.

Once the Federal Government has acted, that is it.

The Federal Government just felt that the — for instance that the —

Hugo L. Black:

So, what’s been quoted of the — of what you mentioned is about where the punishment was different?

Herbert S. Thatcher:

It — the punishments would make (Inaudible), the punishments are less, it would make no difference whether the punishments were equal or more or less, still —

Hugo L. Black:

I understood it’s de-emphasizing that fact.

Herbert S. Thatcher:

No, I didn’t mean to, Your Honor.

I’m sorry.

That the punishments make no difference whatsoever.

Now, the dissents of — of three of the justices here in the (Inaudible) case, discusses at length this — this very proposition and states very expressly that — in that kind of situation, we have to find some indication of congressional consent, affirmative indication of congressional consent that the States can occupy a federal or can take over a federal jurisdiction.

So, we had not only that concept here but we have the more important concept of federal dominance in the field.

And those two together, we submit very, very respectively, those two concepts together, make it very necessary here that Congress shall — has indicated some or rather either in the legislation or in its history a consent that — that the States can step in, in this very important field and pass their own laws with their own penalties.

Felix Frankfurter:

I should know but I don’t.

What is the situation of the punishment?

Are they the same?

Herbert S. Thatcher:

No, they’re greatly — it’s different all over.

Felix Frankfurter:

Well, I mean —

Herbert S. Thatcher:

In the — in the Smith Act —

Felix Frankfurter:

(Voice Overlap) — recommended.

Herbert S. Thatcher:

— the punishments — in the Pennsylvania Act, the punishment is maximum which was given to Nelson.

It was 20 years and $10,000 fine.

Felix Frankfurter:

You mean in the federal prosecution?

Herbert S. Thatcher:

In the state prosecution.

That was the — that was the penalty there.

Herbert S. Thatcher:

In the federal prosecution, the penalties range from five to eight years and he received five years.

Felix Frankfurter:

You (Inaudible) I hear you say that the punishment in the argument, the punishment is not very clear?

Herbert S. Thatcher:

I think it’s — I think it’s — it’s helpful but it’s not material, no.

Whether the punishment is less —

Felix Frankfurter:

Not (Voice Overlap) —

Herbert S. Thatcher:

— or the — the same or — or greater, makes no — great difference under the principle of federal supremacy.

That is, if out of the theory that if — under — under this theory, Congress has taken the matter in hand, has given it consideration.

It’s thought that so many years of punishment and so much fine is a sufficient (Inaudible)

You must remember we’re —

Hugo L. Black:

(Inaudible)

Herbert S. Thatcher:

And — and that should be —

Felix Frankfurter:

What you mean is —

Herbert S. Thatcher:

— I — I said it’s relevant.

Felix Frankfurter:

What do you mean is that you wouldn’t care if it was the same, is that it?

Herbert S. Thatcher:

I Wouldn’t care if it was the same.

Felix Frankfurter:

Well, but since they’re not the same, why do you say it’s unimportant?

Herbert S. Thatcher:

Well I say — I say it’s —

Felix Frankfurter:

Did the Justice warn him in the Houston lower courts has (Inaudible) him.

Herbert S. Thatcher:

He thought it was vitally important but he also said — he also said, whether they’re equal or greater or less, makes no difference.

Felix Frankfurter:

I think — but in your case that is not the situation where you don’t decide anymore.

Why are you so generous in throwing away that argument?

Herbert S. Thatcher:

Well, yes.

I don’t mean to throw it away.

I — I don’t mean to throw it away.

I mere– I merely meant to emphasize the — the importance —

Felix Frankfurter:

What (Inaudible) do you have to, is that it?

Herbert S. Thatcher:

That’s —

Felix Frankfurter:

All right.

Herbert S. Thatcher:

— that’s —

Felix Frankfurter:

That’s a very common — that’s enough to take you (Inaudible)

Herbert S. Thatcher:

All right.

Now, the earlier authorities on this — on this — this proposition of, once the Federal Government has stepped in the — the Congress has to affirmatively indicate its consent to (Inaudible) versus Pennsylvania, the Southern Railway case versus Indiana, 236, U.S., Rice versus Santa Fe and it is the (Inaudible) in the California versus (Inaudible) discuss all of these cases at length.

Now, on this matter of intent of has been over, I either contended and the — the simple reason that it can’t be that Congress has in any way manifested affirmatively that the States should step in and pass similar laws.

There’s no indication on that whatsoever.

As a matter of fact, the evidence to its intent in any respect is — is pretty nebulous.

There is — much of it in — in a case not the history.

That’s what Congress did intend but we — we are — we’re — we’re concerned with the proposition here that Congress must, under the decision of this Court, must affirmatively indicate somehow either on its history or it’s in — in the legislation itself contend to the sharing of jurisdiction, that we haven’t got.

Section 3231 of the Criminal Code as relied on, that’s the saving clause which follows a — a general — I’ll read it.

A general provision that the jurisdiction of the federal courts in criminal matters is exclusive.

Section 3231 in its entirety reads, “The district courts of the U.S. shall have the original jurisdiction exclusive of the courts of the states, of all offenses against the laws of the United States.”

And then in an order to save the traditional jurisdiction of the States in matters traditionally theirs, this paragraph was added immediately.

“Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.”

It is under the laws of the state courts and I will assume under the valid laws of the state courts or otherwise we are begging the entire question here.

3231 is not a section which accompanies the Smith Act.

It’s a general, overall general saving clause which has been on the federal criminal code for many — many years.

It has, to my knowledge, never been held to authorize States however, to pass or — or enforce federal law — federal criminal laws in a strictly federal field such as — well, take, for instance, the federal crime of contempt in a federal court or contempt of the federal committee, under their arguments that — of the State as to the effect of 3231.

I suppose the States could check into those fields as well.

I — I think 3231 has to be taken to mean that the — the general clause which gives exclusive jurisdiction to the federal courts and criminal matters under the Federal Criminal Code shall not apply to the States’ jurisdiction in matters where the States have a traditional jurisdiction which would — which is not the present case.

And certainly, it’s such a general saving clause is not the affirmative consent which the cases indicate are required in this type of a situation.

Well there are other factors —

Harold Burton:

What other cases are you referring to when you say that it must be a grant of power by Congress.

Is that the (Inaudible) Wagon Company?

Herbert S. Thatcher:

Well, Houston versus Moore states that for one, California versus Zook dissent.

There are any number of cases set forth in that — the two dissents of Justice Frankfurter, Justice Burton, Douglas.

Stanley Reed:

But all of those were the — the idea that the State wouldn’t have power under certain circumstance.

Herbert S. Thatcher:

That would not have power because the Congress has expressly and explicitly in a very narrow field made known its desires in the matter.and it has legislation and prescribed punishment specifically.

In that type of situation, where there’s no question of the (Inaudible)

Stanley Reed:

It arise out — it arise out of interstate transactions?

Herbert S. Thatcher:

Those mostly arose out of interstate transactions or interstate commerce transactions.

Stanley Reed:

So, the State would not have power unless Congress did give it?

Herbert S. Thatcher:

That was — that is the holding of those cases.

Stanley Reed:

(Inaudible)

Herbert S. Thatcher:

Varnville, yes.

The Rice versus Santa Fe Railroad was one.

Southern Railway versus Railway Commission of Indiana from 236 U.S. was another, the Zook dissent has all those cases connected in it.

And it has affirmatively stated that Congress must give its consent —

No.

Herbert S. Thatcher:

— in this type of case.

Stanley Reed:

I don’t see their act — act — applicability here.

So, here you have a — well assuming that — that it’s against the State that the — that the (Inaudible) that would be authority of the State.

Herbert S. Thatcher:

Yes.

Stanley Reed:

It’s a state action.

Herbert S. Thatcher:

If — if — assuming —

Stanley Reed:

Weren’t intrastate.

Herbert S. Thatcher:

Yes, assuming that’s sedition is against the U.S. is — is sedition against the State.

That’s —

Stanley Reed:

That’s the question here whether that’s a wholly intrastate transaction or whether that goes — they have to punish or whether they can’t punish —

Herbert S. Thatcher:

Well I don’t think it is a —

Stanley Reed:

(Voice Overlap) — isn’t it?

Herbert S. Thatcher:

Your Honor, I don’t think it is a question.

The State Supreme Court has very specifically stated that the — the — I’ll read it again.

“That it — it is only alleged sedition against the United States” with which we are here concerned, not against the State.

Stanley Reed:

I’m — I’m accepting that.

Herbert S. Thatcher:

Not against the State.

So — so we have a situation where Congress has passed a specific law on prescribing sedition against the U.S. and the State has also passed a specific law on that very same subject.

Production of these cases that I’ve just discussed in the Zook dissent are, to the effect, that in that type of situation where there’s a direct similarity and that Congress has spoken that that is conclusive and that Congress must let the States know affirmatively that they can step in before they even attempt to step in.

What would you say of the Zook’s majority opinion?

Herbert S. Thatcher:

Well, Zook case is entirely distinguishable from this case on its — on facts.

There we had no exercise —

Suppose that it is.

Herbert S. Thatcher:

There was no sedition or no paramount federal interest.

As a matter of fact, the majority found that the state — the state interest there was paramount.

The case involved regulation of these people that — except transportation for — taken on purposes for hire and the said State had — even had a paramount interest in that type of situation.

And therefore, even though there might be some identity between the two statutes which there was, therefore, the —

Even the Federal Government couldn’t say we’ll explicitly punish.

Herbert S. Thatcher:

The Federal Government could have said that but the Federal Government didn’t — hadn’t expressly said that our jurisdiction is exclusive here.

The dissent was very strong.

Stanley Reed:

No, I take it that this — here, the Federal Government has said there should be no punishment for sedition except by the statute (Inaudible)

Herbert S. Thatcher:

Then, of course, there’d be no question.

Then, of course, there’d be no question at all.

Felix Frankfurter:

What you’re saying as to the part when it’s permitted to rationalize (Inaudible) the assumption of the police that under the (Inaudible) decision was that in that case, the California statute to reveal that — that the subject matter predominantly incorporates and therefore since they are not to infer that Congress meant to see what is your controlling of local agents although it’s a matter of constitution of law, it was also dealing with the (Inaudible)

Herbert S. Thatcher:

That was the holding if I’m — in the case.

The dissent said —

Felix Frankfurter:

That — that’s the theory and here’s the choice that was made.

Herbert S. Thatcher:

That is, Your Honor, yes.

Of course, we — here, we have no dominant, not even an attempt to say that state interest is predominant.

State interest is important, vital but not predominant.

There are other supersession arguments available.

I won’t take the time to go into them.

One is the occupancy or the field argument.

We’ve got the Internal Security Act of 1950 which goes into the whole for our subject matter of sedition, in broad regulatory sense.

We’ve got the Communist Control Act of 1954 which further implements that.

So it’s — it seemed pretty good that Congress has — has legislated very generally and very specifically in the field on the Cloverleaf Butter, for the rest, that would be an indication as Congress meant to occupy this thing.

Harold Burton:

Mr. Thatcher, when Congress reenacted 1948 of title 18 U.S.C.which the Smith Act was a part, the title to that Act explicitly provided that nothing in this title shall be held to take away or repeal the jurisdiction of the courts of the several states under the laws therefore.

What do you say about that?

Herbert S. Thatcher:

Isn’t that the same 3231 we’re talking about?

Harold Burton:

Yes.

Herbert S. Thatcher:

I think it is.

That is a general — that was a — that — that wasn’t part of the Smith Act itself as I understood it.

Harold Burton:

No, I understand, but it was part of the title of 3231.

Herbert S. Thatcher:

Part of the whole Federal Criminal Code.

Harold Burton:

That’s right.

Herbert S. Thatcher:

That’s right.

Well as I said before, that is a general saving clause and I — and unless we’re going to beg the question, I think it must mean that it’s saving state law to the extent that they are otherwise valid, that is in a traditional state field and so on and had nothing to precede it.

Otherwise, as I’ve said, that section would authorize the State to step into any typical field of pure federal criminal jurisdiction such as a treason or against the United States or such as a contempt of in the federal court or contempt of federal committee.

Pardon?

Felix Frankfurter:

(Inaudible)

Herbert S. Thatcher:

That’s 3231, but it was there a long time before that, same language.

That was – that’s an old — I don’t know how long, but it’d been there since —

Felix Frankfurter:

You mean in the general that was in the Penal Code of 1911?

Herbert S. Thatcher:

It was and before that even.

I — in fact, I think there’s some mention about the Houston versus Moore.

It was back that far.

It’s been recodified back and forth since.

The last — last recodification was in —

Felix Frankfurter:

I noticed that.

But the — you’re giving it superiority on the position.

I do not gather from what you’ve said (Inaudible) in the question of what is the function of that purposely.

Herbert S. Thatcher:

I think — I think it if it follows immediately a cause which states that the federal jurisdiction and federal criminal matters shall be exclusive.It follows that immediately.

And I think it’s meant to — to save the traditional state jurisdiction and in — a jurisdictional state field such as the Marshall or the counterfeiting case or the Marshall case where the — where the State has jurisdiction and where the criminal law is on a different plane from I — I think it must mean —

Felix Frankfurter:

Would this clarity have mattered (Inaudible)

Herbert S. Thatcher:

No.

Felix Frankfurter:

If that would be the most (Voice Overlap) —

Herbert S. Thatcher:

There wouldn’t.

Felix Frankfurter:

— superfluous, wouldn’t it?

Herbert S. Thatcher:

That’s correct.

Felix Frankfurter:

That it must refer to something in which the Court —

Herbert S. Thatcher:

Would have — would have —

Felix Frankfurter:

It’s in your panel to decide.

Herbert S. Thatcher:

And that would be in the counterfeiting cases or in the molesting of Marshall or the federal Marshall or that type of case where there is traditionally, you’ve given examples from the Zook case where there are the two planes of jurisdiction.

Herbert S. Thatcher:

And where there is jurisdiction, but it begs the question here to say that that gives jurisdiction to the — the State.

Felix Frankfurter:

It does begin.

I think that begins a reserve.

Herbert S. Thatcher:

A reserve.

Felix Frankfurter:

A failure, it doesn’t give quite — what doesn’t say.

Herbert S. Thatcher:

It –it uses the — the very general language.

It certainly isn’t the affirmative consent in any event.

It isn’t the affirmative consent to the sharing of jurisdiction in the Act that we’re talking about, the Smith Act which I say the cases hold the requirement.

Felix Frankfurter:

But you — if this Court decides that there — that there is no authority of the state court and this Court has stated.

Herbert S. Thatcher:

That is — that’s right.

Stanley Reed:

What is — what’s the difference between this clause and the clauses of national banks, corporate national banks, kidnapping and so forth?

Herbert S. Thatcher:

Well in — in those cases, the — first of all, there is a traditional state police power jurisdiction without any question.

Now, kidnapping or robbery, and all — all traditional and not federal —

Stanley Reed:

Not to hold on national banks, there is — what is this (Inaudible)

Herbert S. Thatcher:

Well, bank robbery, that’s national or not, that’s a traditional state criminal offense, common law offense under — under any system of Government, I suppose.

That — that’s — is on a different plane from what we have here.

Here we don’t have, in the case of sedition against the United States, a traditional exercise of police power.

Stanley Reed:

How old are state punishments of attempt to the state punishments of seditions or treason against the United States?

Herbert S. Thatcher:

Well, the — the Attorney General —

Stanley Reed:

And do you disagree on that?

Herbert S. Thatcher:

Sir?

Felix Frankfurter:

(Inaudible)

Herbert S. Thatcher:

Most of them after the First World War and there’s been rise of them in recent years.

Now, what other position are you on?

Herbert S. Thatcher:

None.

Felix Frankfurter:

And that’s just the opinion of Mr. Justice Johnson’s opinion, used against the (Inaudible) in this case.

The president of the United States were to pardon Nelson for the — on his conviction in the federal court will he have to continue to serve the (Inaudible)

Herbert S. Thatcher:

That’s right.

And also he was very concerned about the problem of dual punishment.

But what’s to happen then or the problem of double jeopardy or the problem is a — for instance, is a, supposing the — of a person is ineptly tried, a person that’s a seditious person is ineptly tried in the state court, like in the bar of prosecution and federal one, there is double jeopardy.

Herbert S. Thatcher:

That might do great harm to the national security program.

That’s one of the consideration here.

Then we do have — we do have actual direct conflicts here in the penalties and procedures available.

I suppose the briefing in the Hayes versus Florida and similar cases where there is conflict, that the federal must be deemed to supersede the state would be applicable on — on that ground.

We have, as I just mentioned, that possibility that the state acts will stand as a bar to or at least, will hinder effective enforcement of the federal law.

Earl Warren:

We’ll recess now, Mr. Thatcher.