“The federal hate crime bill is unnecessary, unjust, and unconstitutional,” argues Reason‘s Jacob Sullum:
“Hate crimes have no place in America,” House Speaker Nancy Pelosi boldly declared last week, “no place in a nation where we pledge every morning ‘with liberty and justice for all.’” Pelosi was urging her colleagues to approve a bill aimed at violence motivated by hostility toward members of certain designated groups.
According to Pelosi, then, the “justice for all” mentioned in the Pledge of Allegiance means equal opportunity to be a crime victim. It certainly does not mean equality before the law, which the hate crime bill sacrifices by treating perpetrators of the same crime differently because they hold different beliefs.
The bill, which the House passed and President Bush has threatened to veto, expands the federal government’s involvement in prosecuting bias-motivated crimes by eliminating the requirement that victims be engaged in a federally protected activity such as voting. It also adds four new bias categories (gender, sexual orientation, gender identity, and disability) to the existing four (race, color, religion, and national origin).
Well, from a glass half full perspective, once all potential identity categories are covered, every crime will be a hate crime. So we’re right back where we started.
Except that we’ve opened the door to criminalizing thought—all so legislators can claim they’ve taken on “hate” in a bit of empty, self-congratulatory posturing.
In fact, as Sullum notes:
[…] it’s not a stretch to say that hate crime laws, by their very nature, punish people for their opinions. A mugger who robs a Jew because he’s well-dressed is punished less severely than a mugger who robs a Jew based on the belief that Jews get their money only by cheating Christians. A thug who beats an old lady in a wheelchair just for fun is punished less severely than a thug who does so because he believes disabled people are leeches.
The rationale for such unequal treatment is that crimes motivated by bigotry do more damage than otherwise identical crimes with different motivations because of the fear they foster. Yet random attacks arguably generate more fear, and hate crimes cause anxiety in the targeted group only when they’re publicized as such. In any case, judges can take a crime’s impact into account at sentencing.
Even if states were justified in punishing bigoted criminals more severely than merely vicious ones (as all but a handful currently do), the case for federal action would be weak. Unlike the situation in the Jim Crow South, there is no evidence that state and local officials are ignoring bias-motivated crimes.The hate crime bill, which authorizes federal prosecution whenever the Justice Department perceives a bigoted motive and believes the perpetrator has not been punished severely enough, continues the unfortunate tendency to federalize crimes that are properly the business of state and local governments, just so legislators like Nancy Pelosi can show they care. Although the Bush administration claims to be concerned about this trend, the details of its objections to the bill (not to mention its history of supporting unconstitutional expansions of the federal government) suggest otherwise.
This last criticism is a bit gratuitous—a “history of supporting unconstitutional expansions of federal government” only applies if they refuse to honor Supreme Court rulings; otherwise, this charge begs the question—but recall that, when push came to shove, the Administration never really pressed the issue against race-based affirmative action, even though it had made its antipathy for the practice well-known (and even though the majority of Americans would like to see the practice ended).
And people wonder why many of us came out so strongly against Harriet Miers…
So Sullum’s point is well taken: at times, Bush has argued from ideology, but acted pragmatically and with political expedience; but in fairness to Bushco, at least we have an Administration that isn’t actively supporting this type of feel-good expansionism and slippery slope nightmare as a change for the public good.
Concludes Sullum:
In federalizing bias-motivated crimesâ€â€potentially including every heterosexual rape, a crime that arguably is always committed “because of” the victim’s genderâ€â€Congress claims to be exercising its authority to regulate interstate commerce. But the connection can be as tenuous as a weapon that has crossed state lines, interference with the victim’s “economic activity,” or anything else that “affects interstate or foreign commerce.”
The president’s complaint is not that such a broad definition of interstate commerce leaves nothing beyond the federal government’s authority. It’s that Congress neglected to include the all-purpose Commerce Clause boilerplate in one section of the bill. Contrary to the impression left by the Constitution, Congress evidently can do whatever it wants, as long as it says the magic words.
Again, the argument is on point, but it takes a gratuitous swipe at the White House, when what it should be doing is taking a swipe at the Supreme Court members, Scalia included, whose rulings have allowed the Commerce Clause to expand in such a way that it can be “read” to include virtually any and every activity that Congress wishes to regulate, or that certain Justices wish to put a stop to.
For its part, the Bushies are following the law in their specific legal objections. Perhaps we’d be better off should the President refuse to honor Court rulings and follow the libertarian line offered by Justice Thomas, but I doubt his doing so would be seen as a blow for freedom by the folks at Reason.
That aside, however, Sullum is absolutely right to note that this increase in the federalization of bias-motivated crimes represents the kind of danger from government overreach with respect to thought that Kelo represents with respect to property.
And given that we live in a cultural ethos wherein “tolerance”—reinscribed as “forced respect” rather than an ideal that asks us to “tolerate” that with which we disagree (but which poses no imminent physical danger), criticizing it in the marketplace of ideas rather than taking governmental or other draconian measures to eradicate it entirely—is often held up ridiculously as the Enlightenment’s greatest ideal, any expansion of federal government into our thoughts is setting the stage for “re-education” camps and other such totalitarian efforts to destroy individual liberty.
Gee, and me wearing my “Thoughtcriminal” T-shirt today.
Compadre! Muy simpatico!
HATIST!!
Could a defendant get the charges reduced by pleading to “mild disdain?”
Here is a general backgrounder – what’s kind of interesting is the extent to which Pelosi’s legislations are substantially ahead of what international law calls for:
That’s how I read this anyway, and the stuff may be dated. I was trying to see if there’s an instrument of international law that might prod Pelosi to go down the path of hate crimes with respect to “incitement.”
Ok. .So abortion is a hate crime based on lack of development, hence physical disability. Or you can go with ageism. I’m flexible on that.
(the white out comes out in 3,2,1….)
This is the type of BS “feel good” legislation that drives me nuts.
Has there been a state or federal court that knocked back this kind of nonsense ?
Open season on white Christian males !!!!!!
Don’t hate the hater, hate the hate.
So this is what Raich has wrought?
I dunno. I know we have a different court, but I don’t think this’ll fly. It’s a lot more like guns in schools and violence against women than a “crop”. Kennedy is the key vote, I think, not Scalia. Kennedy’s vote in Raich allowed Scalia to get on his tough guy anti-crime horse. I don’t see him being so sympathetic here.
It’s nice to know that manditory sentencing for child molestors have to bow as the line of states sovreignty but that the government can infer a though process of racism, sexism, ect so well that they can federally protect against that with federal sentencing.
I wonder how they reconcile that?
I guess children have a larger carbon footprint than minorities, or something.
I think the big legal question here is when one is charged with a ‘hate crime’ rather than a ‘non-hate crime’ does this enhance or reduce the “BUSH MADE ME DO IT” defence?
BECAUSE OF THE HYPOCRISY … or, in the alternative … BECAUSE OF THE TRANSTESTICLES !!!!
If a member of one “protected class” murders a member of a different “protected class”, or a member of a non-protected class, are they exempt … something along the lines of the faulty “blacks can’t be racist” idea ? Just askin’
BECAUSE OF THE MOONBATTERY!
No, but “terminal indifference” can be considered a mitigating factor during sentencing.
Truly bad news for misanthropes everywhere.
Just think what CAIR can do with this. Any crime committed against a Muslim, including “insulting the prophet” by not murmuring PBUH after his name, or looking at them cross-eyed, can be elevated to a hate crime toot sweet.
And how do you prove in a court of law what a defendant was thinking at the time of the crime? What if a swastika-tattooed white supremacist robs a white man for drug money on Monday and robs a black man on Tuesday for the same reason? Is that a hate crime?
Those increase your risk of heart disease, you know.
“Peanut butter upon him”…?
dicentra – According to the leftists and the media, that it an obvious example of a hate crime.
I will give the Dems credit. They are consistent. They trot this crap out every chance they get, Constitution be damned. It is only a matter or time until the likes of timmah drop by to call anyone that opposes this a racist, mysogenistic, homophobic genderist.
When they make discrimination in Federal hiring by draft-dodging Baby Boomers against younger vets actionable, then we’ll know they really mean it. Veterans’ preference, my ass.
I mean, why not respond to the hate crime silliness by criminalizing all the ways the left likes to vent its hate – like, say, mobbing Karl Rove’s house, or spitting on soldiers, or throwing pies at Ann Coulter?
“but in fairness to Bushco, at least we have an Administration that isn’t actively supporting this type of feel-good expansionism and slippery slope nightmare as a change for the public good.”
Well, that’s the dems whole reason for pushing this. Its bait. After the republicans balk they can go back to their line of victims groups and say it proves they are against them… classic wedge issue… and classic example of why the founders preached equality under the law… to avoid this demagoguery and using political game playing to pit groups against each other chasing special compensation or rent seeking… they had seen plenty of that back in Europe with the aristocracy… The whole feudal system revolves around holding power via similar moves (granting titles, lands, special privileges to groups in return for support…)… It the judicial version of voting oneself someone else’s property…
I wish ‘bushco’ could go out and just bottom line it for the public…
I think hate crimes exist, and being beat up for being black, Jewish or Gay is harder on the victim than being beat up for your wallet, but I think this is beyond the ability of juroros to determine well.
More: Hate Crimes Legislation
Now for some reason I can’t get that “break my femur” song out of my head
I do not think that it is even questioned that true “hate crimes” exist, so that premise strikes me as a real non-starter. If you get mugged, assaulted, or murdered, do you really think it matters if it was because the criminal did not like you, or just wanted to rob you? If you get shot with a .22 to the temple, are you going to wind up any less dead if the criminal just wanted your wallet, as opposed to just not liking transtesticle cross dressers that parade around looking like a bastard union between Iggy Pop and Rosie ?
There are already laws against the criminal behavior covered by this legislation. The problem is that the Left is now going beyond the action to criminalize the underlying thought. Scary.
It’s one (bad) thing to have hate crimes legislation locally, but to federalize it takes it to a whole new (worse) level. One big reason that is, as Jeff notes, is the expansion of the recognized powers granted the government that would represent. Finding the power to regulate speech and thought in the Commerce Clause, even as a modifier to punishment for an otherwise culpable act, would be an alarming development.
You would think that otherwise supposedly freedom-loving lefties, afraid as they are of the jackboot of the evil Bushco, would join with libertarian- and tradition-minded conservatives to fight such an initiative. Yet I’m sure we may find some common ground with but a few, as using the power of the government to enforce their own will is too important to the “progressive” agenda. After all, it’s not like Lopez and Morrison were 9-0 slam dunks, and the whole line of cases, right back to Wickard v. Filburn, is what allows them to pursue their socialist dreams through the federal government.
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hi, suleialf !