Cite as: 523 U. S. 155 (1998)
Scalia, J., concurring in judgment
provide for the like offence when committed within the body of any county of such state." 4 Stat. 115.
Congress did not provide any methodology for determining whether an "offence" under state law is "provided for by any law of the United States"; the statute appears, instead, to presume the reader's familiarity with a set of discrete "offence[s]" existing apart from the particular provisions of either state or federal statutory law.
In my opinion, the legal community of that day could only have regarded such language as a reference to the traditional vocabulary and categories of the common law. Indeed, the original ACA was at least in part a response to our decision in United States v. Hudson, 7 Cranch 32 (1812), which held that the federal courts could not recognize and punish common-law crimes in the absence of a specific federal statute. The common law's taxonomy of criminal behavior developed over the centuries through the interplay of statutes and judicial decisions, and its basic categories of criminal offenses remain familiar today: murder, rape, assault, burglary, larceny, fraud, forgery, and so on. I believe that a contemporary reader of the original ACA would have understood it to apply if, and only if, the federal criminal statutes simply failed to cover some significant "offence" category generally understood to be part of the common law.
Since 1825, of course, state and federal legislatures have created a tremendous variety of new statutory crimes that both cut across and expand the old common-law categories. Some of those new "offences" may have become so well established in our common legal culture that their absence from the federal criminal law would now represent a signifi-cant gap in its coverage—a gap of the sort the ACA was designed to fill. That possibility introduces an unavoidable element of judgment and discretion into the application of the ACA, and to that extent my interpretation is subject to the same criticisms I have leveled at the approaches taken by the Court and by Justice Kennedy. But I think that
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