The Supreme Court decision in Pennsylvania v. Nelson, 350 U.S. 497 (1956), addresses federal preemption in the context of the Red Scare and McCarthyism (1947–1957) and illustrates how the Court protected civil liberties during an era of intense discord and distrust, when the Court was under attack.
Nelson was convicted under the Pennsylvania Sedition Act
Steve Nelson, a Communist Party leader in western Pennsylvania, was convicted under the Pennsylvania Sedition Act of advocating overthrow of the U.S. government by force or violence. By 1955, 42 states, plus Alaska and Hawaii, had adopted similar laws. Fifteen years earlier, Congress had adopted the 1940 Alien Registration Act, commonly known as the Smith Act after its sponsor Representative Howard W. Smith (D-VA). These statutes resulted from acute American worries about internal subversion in the depths of the cold war. The language of the Pennsylvania Sedition Act and the Smith Act was virtually identical.
Court upheld reversal of conviction
Writing for a majority of six, Chief Justice Earl Warren upheld the Pennsylvania Supreme Court’s reversal of Nelson’s conviction. Warren wrote: “[T]he conclusion is inescapable that Congress has intended to occupy the field of sedition. . . .Therefore, a state sedition statute is superseded regardless of whether it purports to supplement the federal law.”
Justices Stanley F. Reed, Harold H. Burton, and Sherman Minton dissented. Reed objected to the idea that states could not punish seditious acts.
Court “interfered” to protect association and expression
The Warren Court “interfered” to protect association and expression. Nevertheless, the Court had to act discreetly, focusing on preemption and not the First Amendment. Merely two years before Nelson, the Court handed down Brown v. Board of Education (1954), mandating an end to racial segregation in public education. Brown triggered massive resistance throughout the South. The congressional Southern Manifesto prompted challenges to Brown in the form of state laws across the former Confederacy attempting to entrench Jim Crow. The Court responded eventually by asserting its prerogative to interpret the Constitution in Cooper v. Aaron (1958)—a “boasting of the weak,” in law professor L. A. Powe Jr.’s apt characterization.
Meanwhile, the Court endeavored to balance constitutional and national security concerns indirectly and under the congressional radar screen. Few on Capitol Hill were fooled. A series of decisions, including Mesarosh, alias Nelson v. United States (1956), which reversed Nelson’s Smith Act conviction without reaching the constitutionality of the Smith Act itself, enraged Congress.
The Court’s Nelson accommodation tactic to avoid a political maelstrom is reminiscent of the Court’s approach to slavery in Prigg v. Pennsylvania (1842). Prigg held that the 1793 federal Fugitive Slave Law preempted Pennsylvania’s 1788 Personal Liberty Law. Both preemption approaches failed; Prigg’s circumstances were tragic because the country later dissolved in civil war.
This article was originally published in 2009. James C. Foster is Professor Emeritus of Political Science at Oregon State University-Cascades.