Archives: 07/2009

Hate Crime Legislation: A Shocking Disregard for Federalism

Last week’s Senate Judiciary Committee hearings (video at the link) on the proposed federal hate crimes bill showed the dark underbelly of the Senate. The road to undermining the rule of law is being paved with the best of intentions and casual disregard (if not outright hostility) for the principles of limited government and equality under the law.

I raise some objections to the bill in this podcast:

The bill federalizes violent acts against victims by reason of their actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.

Never mind that these acts are already prosecuted by the states, and that violent crimes of this nature are universally perceived as an affront to justice. Matthew Shepard, the gay man brutally killed in Wyoming, has provided one of the rallying cries for passage of this legislation. His killers both received two consecutive life sentences from a state court. James Byrd, Jr., the African-American man dragged to death behind a truck in Texas, is cited as another reason to pass the law. His killers received death sentences or life imprisonment.

The federal government would also be authorized to prosecute whenever “the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.” While this doesn’t violate the letter of the Supreme Court’s Double Jeopardy jurisprudence (the federal and state governments are considered separate sovereigns) it certainly violates its spirit.

The hearing video shows a complete disregard for limitations on federal power. Senator Ben Cardin (D-MD) claims that we need a “uniform” law across the states (82 minute mark). This claim ignores the fact that 45 states have their own hate crime laws and that violence against others is universally unlawful and routinely prosecuted. It also disregards the fact that general police powers belong to the states, not to the federal government.

Senator Charles Schumer (D-NY) then makes a brief appearance (89 minute mark) to slander opponents of the legislation - how could anyone oppose legislation with such a noble goal? He claims that this is tantamount to saying that it is acceptable to harm people because you do not like who they are.

The problem is that a broad array of actions are implicated as “hate crimes.” Virtually all rapes seem to fall under the new law - it is hard to see how the choice of a rape victim would not implicate their sex. Gail Heriot, a member of the United States Commission on Civil Rights (which came out 6-2 against this legislation), testified that when she consulted with Department of Justice attorneys in previous attempts to pass this legislation, they didn’t seem fazed by this prospect.

Don’t expect the application of this legislation to be the rare and exceptional prosecution that Attorney General Holder promises in his testimony. Janet Cohen testified that her upbringing in a racially divided America decades ago justifies passage of this law. She also proposes that prosecutions with the new law will be “wise” on account of Holder’s “brilliance and integrity.”

And to think, we were once a nation of laws, not of men.

This legislation doesn’t promote the rule of law, it undermines it. Prosecutions that favor one group of victims over another mark the destruction of equality before the law.

The worst facet of the legislation is its counterproductive nature. A real true believer, a hardcore racist or homophobe, would want to be prosecuted under a statute that criminalizes his motives. Prosecution under a murder statute makes him a common criminal; prosecution for murdering someone given special status by the government makes him a martyr for his cause and incites those motivated by his brand of hatred and animus.

This is nothing new. The Animal Enterprise Protection Act (AEPA) criminalized harassment, vandalism and violence against companies that test their products on animals. When seven activists from Stop Huntingdon Animal Cruelty tried to intimidate people associated with Huntingdon Life Sciences, a company engaged in animal testing, they weren’t just prosecuted for stalking. They were prosecuted for conspiracy to violate a federal statute enacted at the behest of their target industry. This made martyrs of the “SHAC 7” and highlighted the undue influence that an industry can exert over government. The focus is now on the propriety of the law used to prosecute someone, not the fact that they unlawfully stalked people engaged in lawful commercial activity.

You don’t defeat politically motivated violence by politicizing the laws used to prosecute it.

Murder is always murder most foul. We criminalize rape, assault, vandalism, and criminal threats because they harm a citizen - not a super-citizen held in some special regard by the government.

For more Cato work on hate crime legislation, go here and here.

Why Wal-Mart Supports an Employer Mandate

wal-mart-logoA couple of years ago, I shared a cab to the airport with a Wal-Mart lobbyist, who told me that Wal-Mart supports an “employer mandate.”  An employer mandate is a legal requirement that employers provide a government-defined package of health benefits to their workers.  Only Hawaii and Massachusetts have enacted such a law.

I couldn’t believe what I was hearing.  Wal-Mart is a capitalist success story.  At the time of our conversation, this lobbyist was helping Wal-Mart fight off employer-mandate legislation in dozens of states.  Those measures were specifically designed to hurt Wal-Mart, and were underwritten by the unions and union shops that were losing jobs and business to Wal-Mart.

But it all became clear when the lobbyist explained the reason for Wal-Mart’s position: “Target’s health-benefits costs are lower.”

I have no idea what Target’s or Wal-Mart’s health-benefits costs are.  Let’s say that Target spends $5,000 per worker on health benefits and Wal-Mart spends $10,000.  An employer mandate that requires both retail giants to spend $9,000 per worker would have no effect on Wal-Mart.  But it would cripple one of Wal-Mart’s chief competitors.

So yesterday’s news that Wal-Mart is publicly endorsing a “sensible and equitable” employer mandate – i.e., a mandate that hurts Target but not Wal-Mart – didn’t come as a surprise to me.  It merely confirmed what I learned in a cab on the way to the airport: Wal-Mart has gone native.  That great symbol of the benefits of free-market competition now joins its erstwhile enemies among the legions of rent-seeking weasels who would rather run to government for protection than earn their keep by making people’s lives better.

In 2007, Wal-Mart officially joined the Church of Universal Coverage when it entered one of those countless strange-bedfellows coalitions with the Service Employees International Union.  At the time, I criticized Wal-Mart for “self-congratulatory puffery” and “jump[ing] on the big-government bandwagon.”  I also criticized then-CEO Lee Scott for spouting economic nonsense.  (I later learned that Scott was not amused.)

This is so much worse than that.

The European Union Stops Banning Ugly Veggies

The European Union has helped create a continental European market and knock down protectionist barriers, which is good.  But it also has created another opportunity for meddling bureaucrats to interfere with people’s lives. 

Now consumer protests have led to at least one victory for liberty.  Reports London’s Sun newspaper:

Now the European Commission has finally scrapped the 20-year ban on 26 types of fruit and veg including asparagus, celery and aubergines.

They ruled they can now be sold - as long as they are labelled as “intended for processing”.

Sainbury’s spokeswoman Lucy Maclennan said: “We are delighted to have played a part in winning the wonky veg war against these bonkers EU regulations.”

Tesco spokesman Adam Fisher said: “It’s not before time. We welcome this move.”

And last night it was predicted the change could see some prices fall by 40 PER CENT.

A Commission official said: “Times have changed - now household budgets are tighter and there is the problem of wasting food.”

One bad regulation down.  Who knows how many to go?

War without Killing?

The United States is going to cut back on airstrikes in Afghanistan, according to the new commander there, Gen. Stanley McChrystal. This decision comes on the heels of Central Command’s release (late on a Friday afternoon) of the executive summary of a report on the killing of dozens – at least – of civilians in Farah Province in Western Afghanistan. On May 4, a B-1B providing air support to US and Afghan forces there bombed some buildings, thinking that they contained insurgents. The buildings were apparently full of civilians.

Everyone seems to think this is a wise policy shift. The center of gravity in an insurgency, we’re often told, is the population. You need their support to find and defeat insurgents. Killing people undermines their support for the occupier and the government. You often hear the same thing about airstrikes in Pakistan.

This is a sensible argument, but it has some problems.  For one, empirics to support it are hard to come by. Second, it isn’t obvious that people cooperate with occupiers or governments because they like them. Support may come instead from the mix of incentives – coercive and economic – that the population faces.  The power to reward and punish behavior probably matters more in generating cooperation than feelings of loyalty, although they are not mutually exclusive.

You might respond that it is simply immoral to kill innocent people, whatever the strategic effects. That takes us to the real trouble with the critique of airstrikes, which is the idea that you can fight clean wars.

The accidental killing of Afghan civilians is a tragedy we should limit (one way to do so might be to simply stop using bombers for close air support).  It is also an inevitable consequence of fighting a war in Afghanistan. Troops are going to use plentiful and occasionally indiscriminate firepower to defend themselves. This problem can be mitigated but not solved. You should not support the war in Afghanistan if you cannot support killing innocent people in prosecuting it. As Harvey Sapolsky (my professor at MIT) points out on his new blog, the allies killed 50,000 French civilians in the course of liberating France in World War II. Today precision munitions save many civilians, but, along with euphemistic words like state-building, they threaten to delude us into thinking that we can fight antiseptic wars that adhere to liberal norms. (The situation is even worse in Germany, where they are arguing about whether to call what they are doing in Afghanistan a war).

As Sapolsky puts it:

Air power is our advantage, especially in a country where our forces are spread thin and the distances are large. Precautions have limited greatly the number of weapons dropped and how air power is employed. But only a little deception apparently is needed to put this advantage in jeopardy. Soldiers are still dying in Afghanistan. If there is no will to inflict casualties then there should be no will in absorbing them. Try as we may to avoid it, war kills the innocent.

For the source of this post’s title see the first article (pdf) here.

Mr. Jefferson Regrets

Thomas Jefferson was an advocate of public schooling, after a fashion. He knew that an educated public was the only protection against government abuses, and he assumed that a state-run, state-funded school system would provide that essential education. If he could only see public schooling today. 

The Arizona-based Goldwater Institute has just released a study on the civics knowledge of that state’s high school students. Matt Ladner, Goldwater’s head of research, administered the same trivial test that’s given to immigrants applying for citizenship, using the same trivial pass/fail threshold. [I know it’s trivial, ‘cause I took it a few years ago.] The results of Goldwater’s little experiment… Oh. My. God. Becky:

     96.5 percent of AZ public high school students failed

Honestly, why did anyone – especially Thomas Jefferson – ever imagine that a government monopoly would be a good way to educate kids about a democratic republic and protect them from abuses of government power?