"Hate-related violence is to be abhorred," Sen. Orrin Hatch recently declared. "Hate crimes are abysmal. They are horrible. We should all be against them."
This bold proclamation was Hatch's attempt to show that, even though he voted against the "hate crime" legislation that passed the Senate by a vote of 57 to 42 on June 20, he is firmly opposed to violence motivated by bigotry. Really.
When those racists in Texas dragged James Byrd to death behind their pickup truck, the senator wants us to know, he was just as appalled as the next guy. And when those homophobic thugs in Wyoming beat Matthew Shepard and left him to die, you can be sure Hatch was shaking his head along with the rest of us.
Why is the Utah Republican so eager to reassure the public that he is outraged by outrageous acts? Because backers of the hate crime measure he opposed have been largely successful in portraying it as something that any decent human being must support.
As the focus shifts to the House, Vice President Al Gore says President Clinton may demand that hate crime legislation be included in a big spending package as a condition of signing it. Meanwhile, Gore is using the issue to show that he is more compassionate than a certain compassionate conservative.
But the bill's opponents need not be so defensive. First of all, as Hatch noted, there is little evidence that local and state authorities are failing to take hate crimes seriously. In both the Byrd and Shepard cases–held up as symbols of the need for national legislation–the assailants were arrested, tried, convicted, and sentenced to death or life imprisonment, all without federal intervention.
The hate crime bill, which would allow federal prosecution of violent crimes motivated by a victim's actual or perceived race, color, religion, national origin, sex, sexual orientation, or disability, is unconstitutional as well as unnecessary. Congress is simply not authorized to transform such crimes into federal offenses.
"To reach the Shepard case," reports The New York Times, "the prosecution would have to establish a direct connection to interstate commerce, though the connection could be no more than the use of a gun bought in interstate commerce." Such a definition of "direct" would obliterate the distinction between state and federal powers.
Although the Supreme Court, beginning in the 1930s, has repeatedly endorsed an elastic view of the Commerce Clause, in recent years it has been having second thoughts about handing Congress what Justice Clarence Thomas calls "a blank check." It's doubtful that the Court would accept a reading of the clause that would dramatically expand the federal government's jurisdiction over crimes traditionally handled by the states.
The federalization of so many crimes would invite serial prosecutions. A defendant could be tried in state court for a "hate crime," then tried again in federal court if he happened to be acquitted or if someone in the Justice Department thought his punishment was not severe enough. This is just the sort of thing the Fifth Amendment's prohibition against double jeopardy was intended to prevent.
The hate crime bill also runs afoul of the First Amendment by punishing people for their beliefs. In determining whether a particular crime was motivated by bigotry, it is relevant to know not only what the perpetrator may have said during the attack but what he said to friends and acquaintances on other occasions, which organizations he belongs to, which books he reads, and what signs, symbols, and bumper stickers he displays.
In other words, the defendant's opinions must be put on trial. This attack on freedom of conscience is reflected in the rhetoric of the bill's supporters. "No matter how we pray, [or] how we sin," said Senate co-sponsor Gordon H. Smith (R-Ore.), "we can stand against hate"–not hate crimes, not acts of violence motivated by hate, but hate itself.
Ted Kennedy (D-Mass.), the bill's other lead sponsor, said it was part of an effort to create "a nation…free from discrimination, hatred and bigotry"–not through education or persuasion but through the force of law. "Hate crimes are rooted in hatred and bigotry," he explained, "and if America is ever going to be America, we should root out hatred and bigotry."
I don't know about you, but a country where legislators try to forcibly extirpate ideas they do not like is not my vision of America.