176
Scalia, J., concurring in judgment
Subsequent amendments replaced the word "offence" with "act or thing," 35 Stat. 1145, and eventually the present formulation, "act or omission." But we held in Williams v. United States, 327 U. S. 711, 722-723 (1946), that those amendments were designed to respond to a perceived technical deficiency, and that they did not intend to change the meaning of the Act.
Williams reached that conclusion by studying the legislative history of the ACA amendments. Although I am not prepared to endorse that particular methodology, reading the ACA against the backdrop of its statutory predecessors does shed some light on its otherwise puzzling language. An "act or omission . . . made punishable by [law]" is the very definition of a criminal "offense," and certainly might have been another way to express that same idea. In addition, the ACA still provides that a defendant charged with an assimilated state crime "shall be guilty of a like offense and subject to a like punishment." 18 U. S. C. § 13(a) (emphasis added). Since an interpretation that ascribes greater substantive significance to the amendments would produce such a vague and unhelpful statute, I think that Williams's reading of the ACA was essentially correct. A defendant may therefore be prosecuted under the ACA for an "offense" which is "like" the one defined by state law if, and only if, that same "offense" is not also defined by federal law.
That interpretation would hardly dispel all of the confusion surrounding the ACA, because courts would still have to decide whether the assimilated state offense is "the same" as some crime defined by federal law. As Justice Kennedy points out in dissent, "[t]here is a methodology at hand for this purpose, and it is the Blockburger test we use in double jeopardy law." Post, at 182. Two offenses are different, for double jeopardy purposes, whenever each contains an element that the other does not. See, e. g., Blockburger v. United States, 284 U. S. 299, 304 (1932). That test can be
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