178
Scalia, J., concurring in judgment
a greater state offense under the ACA, or vice versa." Post, at 183. He proposes that courts should "look beyond slight differences in wording and jurisdictional elements to discern whether, as a practical matter, the elements of the two crimes are the same." Post, at 182. In order to avoid overruling Williams, he also suggests that assimilation is improper when "Congress . . . adverts to a specific element of an offense and sets it at a level different from the level set by state law." Post, at 183. I admire Justice Kennedy's effort to construct an interpretation of the ACA that yields more certain and predictable results, but the modifications he proposes largely dispel the virtues of familiarity, clarity, and predictability that would make Blockburger the means to such an end. Ultimately, moreover, those modifications are driven by a view of the policies underlying the Act which I do not share. Justice Kennedy contends that the ACA is primarily about federalism, and that respect for that principle requires a strong presumption in favor of assimilation. Post, at 181-182. To the extent that we can divine anything about the ACA's "purpose" from the historical context which produced it, I agree with the Court that the statute was apparently designed "to fill gaps in the federal criminal law" at a time when there was almost no federal criminal law. Ante, at 160; see also Williams, supra, at 718-719.
Rejecting Blockburger's elements test leaves me without an easy and mechanical answer to the question of when a state and federal offense are the "same" under the ACA. But the language of the original 1825 ACA suggests that the focus of that inquiry should be on the way that crimes were traditionally defined and categorized at common law. It provided that
". . . if any offence shall be committed in [an enclave], the punishment of which offence is not specially provided for by any law of the United States, such offence shall . . . receive the same punishment as the laws of the state . . .
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