Hate This

May 3, 2007 • Commentary
This article appeared in the National Review on May 3, 2007.

Congress is poised to enact hate‐​crimes legislation. The basic idea is to punish criminal acts that are motivated by some form of bias, such as racial hatred. The proposal is popular, but ill‐​advised. Thus, President Bush needs to get his veto pen ready.

Crime is a serious problem, but under the U.S. Constitution it is a matter to be handled by state and local government. Chief Justice John Marshall observed in 1821 that Congress had “no general right to punish murder committed within any of the States.” Unfortunately, as the years passed, Congress eventually assumed the power to enact a vast number of criminal laws pursuant to its power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

This Congress should not exacerbate the errors of past Congresses by federalizing more criminal offenses. The Commerce Clause is not a blank check for Congress to enact whatever legislation it deems to be “good and proper for America,” and the proposed hate crimes bill is simply beyond the powers that are delegated to Congress.

Even if it presented no constitutional problem, it would still be unwise to support hate‐​crimes legislation. For one thing, it is imperative that federal law‐​enforcement focus on foreign threats, such as al Qaeda. One of the reasons the terrorists were able to elude detection prior to the September 11 attacks was that the FBI was charged with so many responsibilities that it lost sight of its most important responsibility — protecting the homeland from foreign threats. But the FBI was only trying to fulfill to the additional missions that the Congress assigned to it. A veto would underscore the point that there will be no backsliding while Bush remains in office.

Of course, one should not forget that all of the violent acts that would be prohibited under the proposed bill are already crimes under state law. Over the last few years, there has been a great deal of publicity surrounding the brutal killings of James Byrd in Texas and Matthew Shepard in Wyoming. The individuals responsible for those murders were quickly apprehended and prosecuted by state and local authorities. President Bush knows the Byrd case well, as he was the state governor at the time. Those incidents do not show the necessity for federal action; to the contrary, they show that federal legislation is unnecessary.

The proposed bill is called the “Hate Crimes Prevention Act,” but it is not going to prevent anything. Any thug that is already inclined to hurt another human being is not going to lay down the gun or knife because of some new law passed by Congress. The culprits involved in the killings of James Byrd and Matthew Shepard, for example, made a conscious decision to disregard basic homicide statutes. And those murders took place in states that have the most drastic legal sanction available under the law: the death penalty. The notion that any federal hate‐​crime law could have prevented those brutal killings is naïve.

Proponents of hate‐​crime legislation believe that such laws will increase tolerance in our society and reduce intergroup conflict. But hate‐​crime laws may well have the opposite effect. The men and women who will administer hate‐​crime laws — police and prosecutors — will likely encounter a never‐​ending series of complaints with respect to their official decisions. When a U.S. attorney declines to prosecute a certain offense as a hate crime, some will complain that he is favoring the groups to which the accused belongs. And when a U.S. attorney does prosecute an offense as a hate crime, some will complain that the decision was based upon politics and that the government is favoring the groups to which the victim belongs. This has already happened in some of the jurisdictions that have enacted hate‐​crime laws at the local level.

Hate‐​crimes legislation will also take our laws too close to the notion of thought crimes. It is true that the hate‐​crime laws that exist presently cover acts, not just thoughts. But once hate crime laws are on the books, the law‐​enforcement apparatus of the state will be delving into the accused’s life and thoughts in order to show that he or she was motivated by bigotry. What kind of books and magazines were found in the home? What internet sites were bookmarked in the computer? Friends and co‐​workers will be interviewed to discern the accused’s politics and worldview. The point here is that such chilling examples of state intrusion are avoidable because hate crime laws are unnecessary in the first place.

Many members of Congress recognize these problems, but they fret about the political risks involved in opposing a “hate crimes” proposal. President Bush has been down this road before. In 1999, he refused to sign the “James Byrd Hate Crimes Act” while he was governor by saying that “all crimes are hate crimes.” As president, Bush should remain steadfast against the effort to enact federal hate crimes legislation.

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice