The foregoing authorities completely demolish Nelson's contention and the majority opinion's theory of double jeopardy.

For each and every one of the foregoing reasons, I, dissent from the decision of this Court."

10

In that case the Association of Attorneys General of the States in United States became very much disturbed. The case went to the Supreme Court and the States Attorneys General Association appeared as amicus curiae and the attorney general of New Jersey, Mr. Wyman, wrote a full and excellent brief on the subject which I can supply to the committee if you desire.

You can see the devastating effect of the preemption rule in a case of that kind where the supreme court of the State holds that the State is wholly defenseless on a matter of treason and subversive activities. That raised the whole question of the whole broad field of legislation whereby Congress steps in and the State law is to be set aside. Therefore I introduced this bill, which is in general terms. It was suggested to me that I introduce a bill merely amending the Smith Act so as to express the intent of Congress. I do not think that is the answer. I think the question is so broad and so destructive of States rights that the time is long overdue for Congress to speak. I was the author of the Smith Act and I never dreamed of anyone else ever dreaming that by reason of Congress stepping in and enacting a law to prevent treasonable activities that the States were precluded from enacting a law to protect themselves against the same evils; and it is just as true in respect of hundreds of other fields of Federal legislation as in subversive activities.

The thing becomes more aggravated and more necessary because of the fact that in the last 20 or 30 years, and, in fact, since I have been in Congress-and that is 25 years the Federal Government has stepped into so many fields of legislation. We have broadened the powers and jurisdiction of the Federal courts by construction. For instance, the interstate commerce clause.

When I studied law interstate commerce meant trade between the States. Interstate commerce means anything now by reason, not only of the construction of the courts, but by the enactments of Congress because you will recall that some 20 or 25 years ago we began to enact laws in which we said the Federal court shall have jurisdiction over this or that subject because it deals with interstate commerce or affects interstate commerce.

You can go out and get a shoeshine but you can't get it without using a polish that perhaps came from Connecticut and a brush that perhaps came from Texas. So, Congress has broadened the field so terrifically that there is hardly a subject you can touch that would not fall within some of these definitions and thereby repeal all State laws on that subject.

That is what this bill is all about.

Let us take another case, for instance. It is the case of the Cloverleaf Company v. Patterson (315 U. S. 148). In this case a factory in Alabama was engaged in the business of renovating butter. The authorities of that State where the factory was located felt that in the

10 It will not escape notice that except for four of the Judges of this Court, all of the Judges of Pennsylvania who have considered the constitutional question here involved, including the Superior Court, are in accord that Pennsylvania's Act has not been superseded or invalidated by the Smith Act.

interest of the health of their community that they should inspect this product which was used in the State of Alabama as well as being shipped into other States. Alabama undertook to inspect for the protection of the health of its citizens and the Supreme Court held that because Congress had enacted the Pure Food and Drug Act it had assumed entire jurisdiction over the subject and the States were powerless to enforce their laws for the protection of the health of their citizens. So, the State of Alabama had no right to enact a law to provide for inspection of a product some of which was shipped in interstate commerce.

I think if we stop and think about that sort of a doctrine we can see how disastrous it is to the sovereignty of the States who have an inherent right to protect the health and welfare of their citizens.

It is very interesting to note that in the Cloverleaf case Justice Frankfurter wrote a dissenting opinion and I would like to quote from his opinion:

The Department of Agriculture not only urged the enactment (of the Federal statute involved in the case), it drafted its provisions. If the Department wanted Congress to withdraw from the States their power to condemn unsanitary packing stock and to confide such power in the Federal Government, it could easily have made appropriate provision in the draft submitted by it to Congress. However, the Department did not do so. It did ask Congress to make some restrictions upon the authority which had been exercised by the States in regulating the manufacture and sale of butter for the protection of their citizens. But the restriction did not include withdrawal from the States of the power to condemn unhealthful packing stock butter. The sponsors of this legislation, the experts of the Department of Agriculture, could have submitted to Congress appropriate language for the accomplishment of that result. They did not do so. The Court now does it for them even though the Department has no such desire.

To require the various agencies of the Government who are the effective authors of legislation like that now before us to express clearly and explicitly their purposes in dislodging constitutional powers of States-if such is their purpose makes for care in draftsmanship and for responsibility in legislation. To hold, as do the majority, that paralysis of State power is somehow to be found in the vague implications of the Federal renovated butter enactments is to encourage slipshodness in draftsmanship and irresponsibility in legislation. Justice Frankfurter has given other expressions along the same line. The President of the United States has said:

I want to see maintained the constitutional relationships between the Federal and State Governments * * *. For, if the States lose their meaning, our entire system of government loses its meaning. And the next step is the rise of the centralized, national state in which the seeds of autocracy can take root and grow We will see that the legitimate rights of the States and local communities are respected * * *. We will not reach into the States and take from them their powers and responsibilities to serve their citizens.

* * *

Off the record.

(Discussion off the record.)

Mr. SMITH. On the record.

I would like to quote from Justice Stone on the same subject. This was in the case of Heinz v. Davidowitz. That, incidentally, was a case which arose under the registration provision of the Smith Act. Pennsylvania, it seems, had also a law. The Supreme Court held that the Federal Government having enacted the Smith Act which contained a title respecting the registration of aliens, that no State could require the same thing.

I will not discuss the logic of that but I do want to quote to you Justice Stone, in that case.

Judge Stone says this:

Assuming, as the Court holds, that Congress did set up an inclusive system of registration for aliens, I think it has not done so and it is not the province of the Court to do that which Congress has failed to do. At the time when the exercise of the Federal power is being rapidly expanded through congressional action it is difficult to overstate the importance to safeguard against such domination-not as to what Congress might have enacted *** but which Congress has not expressed and which is not plainly to be inferred from the legislation which it has enacted.

The Judiciary of the United States should not assume to strike down State law which is mainly concerned with the social order and safety of its people unless the legislation or sentiment of the National Government upon the exercise of some authority awarded to the United States is for the attainment of objects of national concern.

That is exactly along the line and sets forth the same theory as did Justice Frankfurter in the opinion I have previously quoted to you. You members of this committee are so much more familiar with the Constitution and the constitutional questions than I am because you deal with them all the time, that it seems hardly necessary for me to take further time to talk about the situation except I would like to mention that with which you are fully aware that notwithstanding any of the powers or authorities given to the Federal Government in the Constitution, amendment 10 of the Bill of Rights very plainly withdraws from the Federal powers all powers not given to it by the Constitution and it is rather specific in its terms that only those powers specifically given to the Federal Government shall be considered as superior to the law of the State and that all other powers are reserved to the State.

Now, Mr. Chairman, that about concludes my statement. As I say, this committee is thoroughly imbued, I am sure, with constitutional questions, it would be presumptuous for me to give a long dissertation on the subject. But I do want to impress upon you, if I can, the very great importance of this principle of preemption from many angles.

The wide scope of modern Federal legislation has become so broad as to touch every citizen and almost every conceivable type of litigation and the result is that the States are gradually having their field of legislation dried up and withdrawn. You will find now a situation in many parts of the country where the Federal courts are so bogged down with litigation of things that relate to or really belong in the State courts that the Federal courts cannot operate expeditiously while the State courts are comparatively idle in many instances.

If I may digress for a moment on another subject which the committee may have to pass on this session, that is the abuse of the diversity of citizenship clause in the Constitution which has resulted in practically a racket in some areas with respect to damage suits, for instance.

I am told the dockets in New York are 4 years behind and they are clogged with cases where there is a damage suit against a corporation, with diversity of citizenship.

A corporation organized in Delaware and suit brought in New York. The corporation moves it into the Federal court because they will not

get a trial for 4 years and the witnesses will be gone and the party will be denied relief in those cases.

If we keep on and do not do something about State rights and about channeling this litigation back into the local courts where the very fundamental conception of Congress was that we should have people tried in the local courts and communities. If we continue the present trend, you will find your State rights entirely eliminated and your whole system of jurisprudence governed by the Federal courts and the original theory of the reservation of powers in the States to deal with their local problems will be withdrawn.

I saw the other day in the local newspaper of Alexandria the advertising in a Federal court of a partition suit. What had happened was, apparently, that here were the heirs of a piece of property in Alexandria, some in the State, some out. So they take the case to the Federal court on the ground of diversity of citizenship and take up the court's time with a case dealing with a purely local case.

What will become of your State courts? There is not a session of this Congress that passes in which your committee is not called upon to create a flock of new Federal judges. Why? Because the dockets are crowded. Why? Because the Congress has not undertaken to do something about the situations I am talking about.

We passed in the 82d Congress a bill respecting the jurisdictional amount for removing a case from $3,000 to $10,000. The Senate just did not get around to doing anything about it and the bill died. But it had the endorsement of the Federal Judicial Council. In the report of the Judiciary Committee it was mentioned that the enactment of that simple act would reduce the load of business in Federal courts by 27 percent, and yet we go on and create a whole flock of judges. My friends, I appeal to you because you are interested in your State as I am interested in my State. We believe in the principle that our States are sovereign States and we ought to preserve their sovereignty and jurisdiction to deal with the things that are their business and not have them taken away by the Federal courts, through misconstruction of an act of Congress; and not through any provision of the Constitution or any express intent of Congress, but because Daniel Webster in arguing a case in the Supreme Court of the United States 150 years ago said so and the Supreme Court by a vote of 5 to 4 sustained his argument and established the doctrine which at that time was not particularly material, but now has become vital.

I came before this committee in the last Congress with this same bill. I have expressed my views about it. My views could be wrong and they may not coincide with your views. But what I would like to do would be to get this bill to the floor of the House. That is all I am asking. Get it to the floor of the House and let us talk to the House about it. And let us see if the House wants the Federal Government to run all the courts of this land as they are rapidly coming to do, or whether they wish to restore the principle of State rights and let the States deal with their local problems.

I thank you very much.

Mr. FEIGHAN. Thank you very much.

Miss THOMPSON. Judge Smith, didn't Congress exercise the comparable prerogative when we passed the tidelands bill?

Mr. SMITH. Excuse me. What was that?

Miss THOMPSON. When we reversed the Supreme Court and turned the tidelands back to the States?

Mr. SMITH. Yes; we did. We did just that. But what I am talking about here is, we do not even have to reverse the Supreme CourtMiss THOMPSON. But the Congress did have the power to reverse the Supreme Court on that issue?

Mr. SMITH. Oh, yes. We can_reverse the Supreme Court on lots of issues but in this case what I am asking is that you say to the Supreme Court that the Court is mistaken about the intent of Congress. We did not intend to interfere with the rights of the States.

Mr. HYDE. On the one subject of treason which gave rights to the Congress. I am sure your attention has been called to this difficulty for a long time. But on that subject isn't it your feeling that the Constitution preempted legislation by its definition of treason?

Mr. SMITH. I used the term "treason" in a loose sense. A person may go out into Maryland and commit an act-it may be a violation of the Federal law under the Smith Act or a violation of your Maryland Subversive Act. But he can be prosecuted under both because while he has committed an offense against the Federal Government by violation of the Smith Act, he has also committed an offense against the State of Maryland and he can be prosecuted by the State under Maryland law.

I was trying to think of one case I just read last night. A person, by 1 act, can violate 2 laws. There is a case where a person-I forget the State it was in. He issued some fraudulent money. He was violating some State laws on a cheating matter and he was prosecuted by the State. But he also passed counterfeit money. By that act he had committed 2 offenses-1 against the State and the other against Federal law.

Mr. HYDE. There is nothing in these decisions that changes that. In the Ogden case

Mr. SMITH. Doesn't it in this Pennsylvania Nelson case?

Mr. HYDE. No. Because in one case he would be guilty of obtaining money under false pretenses and under the State law passing counterfeit money, for instance. I have in mind a different type of thing. Do you think the Pennsylvania decisions and the other Supreme Court decisions would affect cases such as this?

You are familiar with the recent trouble we have had with duck hunters in Maryland. A man who was supposed to enforce the law violated the law. He violated the Federal provision as to how close to a blind you can bait for ducks. But the State and Federal provisions on the point are different. Would it not seem to you that under the Pennsylvania cases the State is excluded from enforcing its law because the Federal Government has enforced its law? It seems to me that would be true.

Mr. SMITH. But I don't know that that was ever decided by the Supreme Court.

Mr. HYDE. That is the danger you run into.

Mr. SMITH. I have not violated the duck laws for a good many years. But if I went down the river and violated Maryland law I could plead that the Federal law preempted the situation just on the same theory as you mention.