Federalism

Appellate Court Upholds Constitutionality of Federal Hate Crimes Act Conviction Based on the Commerce Clause

The decision is a complicated ruling that potentially sets a dangerous precedent for the scope of federal power under the Constitution.

|The Volokh Conspiracy |

The US Court of Appeals for the Fourth Circuit recently issued a notable  decision upholding the constitutionality of a federal Hate Crimes Act prosecution, by concluding that Congress' power to regulate interstate commerce gives it the power to ban the conduct in question. In United States v. Hill, the court issued a divided 2-1 ruling overturning a district court decision that invalidated the conviction of an Amazon employee who assaulted a gay co-worker out of homophobic motives.

The decision is a complicated one. Both the majority opinion by Judge James Wynn and the dissent by Judge G. Steven Agee do an excellent job of outlining their respective positions and trying to ground them in the Supreme Court's Commerce Clause jurisprudence. If you really want to understand all the back and forth arguments, there is no substitute for reading both opinions in full. In this post, I will briefly outline the key issues at stake, and explain why I think the majority opinion sets a problematic precedent.

Homophobic assaults and other hate crimes deserve severe punishment. Perhaps hate crimes should even be punished more severely than otherwise similar "ordinary" violent crime. But, in most situations, the Constitution leaves that task to the states, not the federal government.

Hill assaulted the victim while the two were on the job. He was convicted under Section 249(a)(2)(B)(iv)(II) of the 2009 federal Hate Crimes Prevention Act, which criminalizes bias-motivated assaults (in this case an assault motivated by homophobia) in situations where assault "interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct."

Before considering the decision, it's worth noting two constraints on its analysis. First, for procedural reasons, the court did not address the argument that the Hate Crimes Act is  unconstitutional as a whole; it only considered Hill's claim that it was unconstitutional "as applied" to his specific conduct. Second, the government argued only that this provision of the Act is a permissible exercise of Congress' Commerce Clause powers. It did not claim that it was also authorized by Congress' powers under the Thirteenth Amendment (which gives Congress the power to enact laws to suppress "slavery" and "involuntary servitude"). Several court decisions have upheld other federal hate crimes laws under the Thirteenth Amendment (in cases dealing with racially motivated violence, rather than homophobic attacks). I critique this sort of reasoning here.

In cases such as United States v. Lopez and United States v. Morrison, the Supreme Court ruled that the Commerce Clause gives Congress the power to regulate almost any "economic activity" as long as it had some substantial "aggregate" effect on interstate commerce. But it also emphasized the need to limit federal power under the Clause, so that it would not turn into an unconstrained general "police power," and noted that, at least as a general rule, Congress cannot use the Commerce Clause to regulate "noneconomic" activity merely because it had an aggregate effect on interstate commerce. Otherwise, Congress would have the power to restrict almost any activity, as virtually anything we do affects interstate commerce in some way (especially in combination with similar behavior by others).

In this case, both the majority and dissent recognize that Hill's assault was not "economic" activity in and of itself. It was not an economic transaction, nor did he have any kind of economic motive for his actions.

Nonetheless, the majority concludes that the prosecution falls within the commerce power for two main reasons. The first is that the relevant section of the Hate Crimes Act does not permit prosecution of any and all assaults that might affect the economy, but only those that  "interfere with commercial or other economic activity in which the victim engaged at the time of the conduct." This, Judge Wynn argues, provides a limiting principle that prevents this part of the Hate Crimes Act from morphing into a justification for unconstrained federal power: "For example, if Defendant had assaulted [the victim] Tibbs  at a private residence while Tibbs was not engaged in activity related to interstate commerce, then Defendant would not be subject to prosecution under the Hate Crimes Act."

Judge Wynn's second major point is that what matters is not the nature of the defendant's act, but its effect on interstate commerce:

[I]t is irrelevant that a bias-motivated "punch in the face" is non-economic, standing alone…. It is not the violent act itself, or the motivation behind that act, that triggers Congress's regulatory authority under the Commerce Clause, but the effect of that act on interstate commerce that renders it susceptible to federal regulation.

In my view, Judge Wynn's second argument undercuts his first. If what matters is the "effect" on commerce, and not either the motivation or the inherent nature of the defendant's actions, then the logic cannot be limited to cases where the defendant has disrupted "commercial or other economic activity in which the victim engaged at the time." Even if the victim was indeed just sitting at home and not doing anything "economic," an assault on him could have an impact on commerce. After all, the injured victim might end up buying fewer (or more) products in interstate commerce as a result. Even if that doesn't happen in any given case, it is surely true if we aggregate the impact of all similar assaults.

And Judge Wynn's logic requires us to do just that. That is how he gets around the fact that the evidence indicates that this particular attack had no effect on commerce, because  it did not in any way reduce the productivity of the Amazon facility where it took place.

For this reason, I agree with Judge Agee's dissent, where he points out that "[t]his unauthorized Commerce Clause expansion would result in a host of problems including the federalization of commercial property, the regulation of all aspects of employment and workplace conduct, and even the home, should individuals be engaged in work while there." Indeed, the majority's reasoning might even allow Congress to regulate activities in the home even in situations where the person in question does not "engage in work while there." After all, such activities still often have an aggregate effect on interstate commerce.

If, for example, I engage in a "couch potato" lifestyle at home, that might reduce my productivity at work, and in turn reduce the quantity or quality of interstate commerce. The aggregate commercial impact of such behavior may well be at least as great as that of bias-motivated crimes.

This flaw in the majority's logic explains why there is good reason to decry the Fourth Circuit's decision even if we sympathize with the objectives of the Hate Crimes Act (as I do). In the short run, it may make little difference whether the likes of Hill are prosecuted in federal or state court. If found guilty, they likely deserve what they get.

But the same logic that allows this prosecution, could also justify federal regulation of almost any activity that might have an aggregate impact on interstate commerce. Among other things, it would surely justify the proposed Protect And Serve Act, which would make it a federal hate crime to assault a police officer, thereby creating dangers for civil liberties. Liberals who might be tempted to cheer the outcome of this case should consider all the other things the federal government could criminalize using the same legal rationale.

Such an expansion of federal power makes a hash of the constitutional scheme of limited federal power, and can easily be abused. It would also undercut the usefulness of constitutional federalism as a tool for mitigating the conflicts caused by severe political polarization.

In my view, Section 5 of the Fourteenth Amendment does allow Congress to punish some types of hate crimes in situations where state authorities systematically fail to do so, out of reasons of racial, ethnic, or gender bias. In that scenario, the federal law would simply be countering state-government discrimination. This was an all-too-common problem throughout much of American history, particularly in the segregation-era South, where states routinely turned a blind eye to hate crimes committed by whites against African-Americans.

Today, however, few if any states are unwilling to prosecute hate crimes. Indeed, as the Fourth Circuit ruling explains, the Hill case ended up as a federal prosecution only after state prosecutors turned it over the feds. Virginia prosecutors were more than willing to go after Hill for assault and battery. But they preferred a federal case because the Virginia does not have a specialized hate crime law that covers homophobic assaults, like the federal Hate Crimes Act does. They apparently turned the case over to federal prosecutors because Hill could get a stiffer sentence as a result.  Even if you believe that prosecution under a hate crime law is preferable to prosecution for "ordinary" assault, the situation is a far cry from the sort of state-government bias that would justify federal intervention under the Fourteenth Amendment.

If some states do continue to exhibit bias against prosecuting hate crimes against certain groups, the appropriate—and constitutional—response would be a federal law specifically targeting those types of jurisdictions. We should not instead open the door to federal control of a vast range of private activities that in some way affect interstate commerce.

Later decisions could potentially limit the negative impact of Hill. The majority opinion is long and complicated and offers various potential hooks for judges who want to restrict its impact without overruling it. But I don't think they can coherently do it without imposing constraints on the key elements of Judge Wynn's reasoning described above.

NEXT: Calling All Guamanians

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  1. Well, at least the outcome is correct, because it’s wrong to punch somebody because they’re gay. It’s only OK to punch Nazis and Socialists.

    1. What about gay Nazis?

      I didn’t think that it was ok to punch socialists; if that has reversed itself, what about gay socialists?

      It’s all very confusing.

      1. Or Illinois Nazis. I hate Illinois Nazis.

  2. Does Somin object to making bank robbery a federal crime? Why isn’t that just a matter for the states? How about murder in a national park? How about holding federal officials at gunpoint on a state wildlife refuge? Seems like all these are federal crimes because they unlawfully hinder activity the federal government is legitimately empowered to undertake. Why is interstate commerce different? Isn’t it because libertarians prefer for ideological reasons that commerce be less regulated?

    And while we are at it, why is it that property interests (including libertarians) so often prefer state enforcement to federal enforcement? Isn’t it because state enforcement is more readily accessible to corruption on behalf of property interests?

    I am not arguing as a fan of a generalized national police power. There are good reasons to oppose that. But I am suggesting that there are also bad reasons to oppose it, and libertarians too often seem motivated by the bad ones.

    1. “Does Somin object to making bank robbery a federal crime?”

      I do.

      “How about murder in a national park?”

      No, crimes committed on federal property is one of the few things that is legitimate for the federal government to regulate.

      “Why is interstate commerce different?”

      It’s different because the intent of the founders was to allow Congress to regulate actual commerce, like the waterways, mail, and so forth. It was not intended to allow Congress to regulate anything that has some tangential effect on national commerce. Article 1, Section 8 was intended to be a list of narrow exceptions, and the current Commerce Clause “jurisprudence” allows that exception to swallow the rule.

      1. “No, crimes committed on federal property is one of the few things that is legitimate for the federal government to regulate.”

        On federal property “purchased by the consent of the legislature of the state in which the same shall be”.

        Without that consent, constitutionally, the federal government is just another property owner.

        1. I don’t think I agree with that. The military, as an example, has purchased a lot of land for bases and what not, and I’m not sure if they always had state approval. But it would be absurd to say that the federal government doesn’t have jurisdiction over military bases.

          1. Not absurd at all: states have to agree to give up jurisdiction over territory to lose it.

            Mind, this is one of those clauses the federal judiciary don’t enforce.

            1. For a lot of western states, there are large tracts of land that the federal government retained sole jurisdiction over then when those states were first created.

            2. But they’re not giving up jurisdiction. The states can still prosecute crimes committed on federal property. It’s just that the federal government also has jurisdiction.

          2. The military is not your best example, RWH. The vast majority of their property was purchased with the consent of the state legislatures (or as Matthew says below, retained as a condition of statehood). The Post Office would be a better example since they have lots of really small offices and many of them were routine purchases.

            And in those scenarios, yes, the federal government is just another property owner. They can enforce federal laws that are domain-specific but location-independent (such as ‘no stealing the mail’ and probably ‘no assaulting the postal workers no matter how much they deserve it’) but they can not enforce general federal laws in those locations. So it’s not that they “don’t have jurisdiction” – more that they don’t have sole jurisdiction. The states can, and in some cases must, still be the ones to prosecute.

    2. 1) Bank robbery as a federal crime
      -No, so long as certain preconditions for the crime are met.
      2) Because sometimes the Bank is a federal property, or the crime crosses state lines.
      3,4) Again, federal crimes
      5) Interstate Commerce is a special clause that can be…stretched…far beyond the original meaning.
      6) Because property rights are better able to be managed by people closer to the source, than absentee “landlords” half a continent away.
      7) Because a limited government is better than an all-powerful government, if one is worried about abuse, corruption, and more.

    3. “Does Somin object to making bank robbery a federal crime? ”

      Many banks are federally chartered [“National Association”, “Federal Savings Bank”] and all participate in the FDIC and are part of the Federal Reserve.

      So plenty of reason to make it a federal crime.

      The other things you ask are aimed at federal officers.

      An assault that happens to take place at a business is utterly and completely different.

      Get serious for once.

  3. To paraphrase a comment recently in the news: The interstate commerce clause has already been transformed into a general police power. The courts are now just driving around shooting the exceptions.

    And, in the long run I’m betting you’re going to be OK with that, Having already accepted that it’s OK for the federal government to be ‘a little bit pregnant ‘ in this regard, what principled basis have you got to object to picking off those exceptions?

    You really need to be more principled about this. Forget “effects” or “potential ” or “in aggregate “; Unless the thing being regulated is ITSELF narrowly defined interstate commerce, the clause affords Congress no jurisdiction. Period, end of the story.

    Commerce Clause jurisprudence went off the rails with Wckard, if not earlier, and, no, there’s no such thing as a little bit pregnant.

    1. What might get the expansion for hate crimes rolled back, is if an enterprising person started prosecuting blacks or Muslims for the attacks on Jews in NYC that are increasingly occurring, or something similar, to make the issue boomerang around on the left. Then they might be newfound defenders of Federalism, just like they are with presidential powers in the era of Trump.

  4. Wickard was a gross abuse of power as well as logically incoherent.
    It should be reversed. I started to say repealed, but Supreme Court decisions cant be repealed by the people, can they?
    Sort of anti-democracy, huh?

    1. Courts are inherently anti-majoritarian. It’s both a feature and a bug. We want them to be anti-majoritarian to defend individual rights (which they sometimes do) against the tyranny of the majority, but majoritarian as to which rights they protect or *ahem* (cough) create on their own.

      1. The courts are supposed to be short term anti-majoritarian, in the sense that they don’t permit temporary majorities to override rules previously adopted, unless this is done by the required formal procedure. For instance, temporary majorities can’t trample freedom of speech, because it is protected by a constitutional amendment.

        But they are supposed to be long term pro-majoritarian, in the sense that the rules they enforce ARE adopted and changed by majorities. So that, for instance, a sustained and properly distributed majority could, conceivably, repeal the 1st amendment. And if it did so, the courts would be obligated to respect that.

        The problem is that they’ve taken advantage of the difficulty of amending the Constitution to become long term anti-majoritarian, making changes to the interpretation of fundamental law, outside the amendment process, and then demanding that the majorities that never authorized this use the amendment process to undo it. This take a supermajority mediated amendment process intended to produce stability, and stands it on its head, requiring supermajorities to BLOCK, rather than intitiate, constitutional changes.

        1. I have to quibble a bit with that historical assessment, to say that it’s not that Courts, specifically the Supreme Court, are “taking advantage of” the difficulty in amending the Constitution. Congress is avoiding amending the Constitution. Last serous attempt was the ERA. Rather, elected majorities are punting on difficult decisions, and Courts are filling the void because of a more litigious society after the Warren Court. And courts take advantage of the elected branches being divided politically by party to do more when they know they won’t be so easily overturned.

          Moreover, the only real issues are when various majorities are put out of power but the Courts (which lag) are still in power from the previous elected majority. The appointment process takes some time to catch up.

          The only danger that is real, here, is that as you say courts block majoritarian amendment processes, like how California (before it became totally crazy) tried to block gay marriage and welfare/benefits for illegals only to be stepped on by the Courts. Where are the cowardly liberal judges worried about institutional legacies (like Roberts) when that happens?

          1. Part of what is going on here is that we’re developing, (All the Western democracies have been…) an insular, self-perpetuating political class, with values and opinions different from the general populace. They’re getting increasingly good at rigging the system so that nobody outside their clique can get a position of power. (That’s why Trump has been met with so much horror: He’s not a member of the club.)

            Formal amendment is deplorably subject to democratic veto by that populace. The actually get to reject proposed amendments! Like they did the ERA, before the courts ‘amended’ the 14th amendment to render that rejection moot…

            As judges are more insulated from popular retaliation than elected office holders are, they’ve become a preferred way to impose changes that are politically dangerous. The judges do the dirty work, and then the elected office holders can publicly fight the good fight, take a dive, and, Ta Da! Everybody but the public gets what they want, and nobody gets voted out of office for doing it openly.

            But it’s all a game, where the objective is that the political class get their way, and the public has no say in the matter or way to undo it.

            1. While I agree that the political class is insular, and self-perpetuating with its own way of assigning merit membership into the class (did you go to the right school, do you have the right globalist opinions, are you style over substance, etc. etc.) it’s not clear to me that the judicial creation of a whole host of anti-majoritarian “rights” (amongst other things) are not being as driven by the public as the elected office holders who are punting to the courts. Certainly, even if it is a noisy minority who wants them, they quickly get accepted, like in Miranda, or Lawrence or Obergefell.

              I guess I’m saying that it’s no so clear cut that judges are out of control…they are, but so is the public for thinking that there is a right attached to every facet of human behavior.

              1. Obergefell got “quickly accepted” because the judiciary steamrollered the democratic opposition, which was somewhat hobbled in the first place by the sort of deliberately ineffectual representation I referred to above.

                What you’re looking at since then isn’t so much acceptance as resignation, the realization that the public have no tools with which to reverse Obergefell, and that public opposition to it may eventually bring dire consequences. Brendan Eich loses his job, social media platforms cut you off at the knees if you dissent, and who knows what may happen to you 10 years from now if you say something today that gets recorded somewhere?

                In some ways the US is already starting to exhibit classic totalitarian state characteristics, with people concealing their opinions out of fear of retaliation.

                1. People support the rule of law. The only way to call it resignation, is if you have an opinion survey before and after a decision nuanced enough to measure that. We pretty much do with gay marriage, and it’s acceptance not resignation. For Obergefell, the Supreme Court rode a wave like a surfer. Scalia’s prognostication in Lawrence was entirely correct.

                  This does not, however, discount your correct point that surveys and history (the 2016 election) show that American’s have to dissemble their political opinions out of fear of retaliation, but that isn’t something as new as you think either. Imagine being a communist in 1951 in someplace other than Hollywood or the State Department, or gay in 1970 in someplace other than NY or San Fran?

                  In short, though, I think you need to be more aware that the support flows both ways. The culture of rights in America, which people take in with their mother’s milk, tends to make people think they have a right to do whatever makes them happy, which is also a product of late stage liberalism.

  5. Punching a gay guy falls under the purview of the Commerce Clause, but Andrew Cuomo personally blocking a pipeline from crossing the state of NY to send natural gas from one state to another doesn’t?

    His actions, unlike what occurred in the above case, are 100% affecting interstate commerce.

  6. I’m having trouble seeing what’s interesting about this decision. Isn’t every Commerce Clause nexus this thin? The incident took place at work, within a firm that does business in more than one state, therefore whatever happened presumptively affects “interstate commerce.”

    What I wonder is whether Congress can solve this legislatively, by declaring that interstate commerce means only transactions across state lines, not just anything that happens in connection with a business that might theoretically affect interstate commerce.

    1. Why would they do that? Do you think the judiciary are dragging Congress kicking and screaming into having power over more and more of our lives?

      This originated with Congress, the Court just endorsed their power grab.

      1. I get that, I just am curious whether Congress could do that. I’m not aware of any other case in which they have passed a resolution to define the scope of a Constitutional power–I’m sure for the reason you just mentioned. But, could they?

        1. Maybe the RFRA. That got largely struck down, though.

          1. Maybe the RFRA. That got largely struck down, though.

            I can see that as being an example. Both of Congress defining a Constitutional grant of power, and the court coming back with its own interpretation. You’d think that’s how the coequal branches were meant to work, huh?

  7. “Homophobic assaults and other hate crimes deserve severe punishment. ”

    They deserve the same punishment as any other assault, no more, noless. If my nose is broken what does it matter if the prep hated Jews or just wanted my wallet?

    “Perhaps hate crimes should even be punished more severely than otherwise similar “ordinary” violent crime.”

    No. Severity should not depend on whose nose got broken.

    1. No. Severity should not depend on whose nose got broken.

      Notwithstanding that the basic sense of hate crime laws isn’t what we’re arguing here, these comments by Ilya strike me as disclaimers, as if he’s worried about his boss reading the post and wants to be able to point to those sentences to prove he hasn’t deviated from the orthodoxy.

      That being said, yes I’m with you on the illiberality of the whole notion of hate crimes. You have the absolute right to say what you wish, but your right to swing your fist ends where my nose begins. And if you keep swinging it past that point, your crime is that you hit me. Your reason for doing so is irrelevant (unless it’s that I hit you first.)

      1. I agree, it’s boilerplate kowtowing.

        I think the principle that Bob is defending is that it shouldn’t matter why you broke someone’s nose, what should matter is that you broke it.

        Obviously the point has to be relaxed a bit to take account of the implications in relation to other crimes. So breaking someone’s nose as part of an unsuccessful attempt to kill them, scores bigger than breaking someone’s nose because you were aiming a punch at his chest in a bar fight, but he ducked. Likewise punching someone on the nose in response to an insult might deserve some mitigatory allowance, whereas an unprovoked assault would not.

        But I don’t think the essential principle goes quite as far as Bob’s “all noses are equal” assertion. The nose of a child or a woman or an elderly man might count more than the nose of someone who might be able to defend himself. The nose of a policeman on duty might count more for reasons of encouraging deference to police authority in moments where the peace is threatened, and so on.

        But the nose of a man who is punched because he is black does not seem to me to be worth more than the nose of a man who is punched because he is wearing a MAGA cap, or the nose of a man who is punched because he is dating the woman you used to date.

        1. I’m going to have to disagree with my more conservative brethren, and say that extra harshness in sentencing if the prosecution can show that a broken nose occurred due to hate based on demographics is not a bad thing.

          First, we already put people away for longer terms depending on their various state of mind when committing a crime. Walk in on a lover with a paramour and assault him? Not the same as jumping him in an alley as he walks home from the bar, and we punish accordingly.

          Second, harsh punishments for attacking someone just do to an inherent status like skin color should be (I don’t know if anyone has measured this) a deterrent to prevent this country from degenerating into racial violence, which it regularly did in the past and which it may well in the future the way things are going.

          I think what you’re objecting too, rather, is not that hate crimes deserve harsher punishment, but a perception that hate crime prosecutions only go one direction.

          1. harsh punishments for attacking someone just do to an inherent status like skin color should be (I don’t know if anyone has measured this) a deterrent to prevent this country from degenerating into racial violence, which it regularly did in the past and which it may well in the future the way things are going.

            The thing is, when you protect some classes of people and not others, you a) create a political contest to gain protected status for more and more classes, and b) extreme resentment on the part of those not in a protected class, especially if they are also politically blamed for the other classes ‘need’ to be protected. If you look at the last 10-15 years, especially on college campuses, you can make a strong case that that phenomenon brings its own increase in racial violence.

            All-noses-are-equal is far preferable to having a political process where we try to determine which noses are more equal than others.

        2. The fundamental, constitutional problem with the nose of a man who is punched because he’s black mattering more, is that basing the “mattering more” on immutable characteristics violates equal protection. It’s the basic problem with the whole concept of “protected classes”: Some of the animals become more equal than others.

          1. Well said.

          2. You’re looking at it by the outcome, not the by intent, which I can’t blame you for.

            In giving a boost on sentencing for any attack motivated by punching someone because they are black, we are punishing more harshly for the state of mind of the attacker, not for attacking a black person like they have extra special protections as the Democrat plantation’s favorite pet demographic.

            Theoretically, blacks who go polar bear hunting when playing the knockout game should receive the same harsher punishment, but I don’t see that happening. I’d like to see examples, maybe it is.

            The constitutionality of hate crime laws is not the issue, it’s the application of them.

            1. That’s the problem though. The courts shouldn’t be deciding what is more or less morally reprehensible for the purposes of virtual signaling or directing cultural narratives about race.

              The intent doesn’t matter. This is just like affirmative action. You can’t uplift one person without pushing down another. You can’t make a workplace 50% female without firing men or hiring only women going forward. You can’t punish one crime more without punishing another crime less.

              “All men are created equal, but some are more equal than others” is just semantics. Inequality is inequality, period.

              1. While we both agree on the problem, the solution to hate crimes laws is not to try to get them ruled unconstitutional, because they are not unconstitutional. It’s better to have them repealed, or alternately, apply them equally, which will lead to them being repealed.

                1. But they ARE unconstitutional, as applied, anyway, and unavoidably so.

                  Conceptually, this is sort of like the unconstitutionality of “separate but equal”: Not unconstitutional in and of itself, but rather because it’s never, ever going to be executed in a constitutional manner.

                  1. I don’t think they are unavoidably unconstitutionally applied, but your point is well taken. It would be better if they were gone, but I highly doubt they ever will be…unless they are applied equally. At that point, the intersectional left will declare hate crime laws tools of the cisnormative white supremicist patriarchy, and the momentum to undo them (like mandatory minimum sentences) will really begin.

              2. What is more harmful to the community, thus eligible for harsher punishment, in the context of hate crime laws was decided by Congress, not the court. Court decided whether that was within the scope of power granted to Congress by Constitution. That was the whole thrust of the blog post, starting with the title.

                “You cannot uplift one person without pushing down another” is a question-begging statement. Law inherently creates those who abide by and those who do not and will always “push down” the latter group of people. Hate crime laws do not create castes along with the suspect classification. Blacks, as well as whites, can run afoul of them if they act on racial hatred. Indeed, the first time a hate crime law was upheld as constitutional under the 1st Amendment in the SCOTUS the perpetrator was black. See Wisconsin v. Mitchell. The decision was unanimous.

                1. ” Hate crime laws do not create castes along with the suspect classification. Blacks, as well as whites, can run afoul of them if they act on racial hatred. ”

                  As a matter of theory, yes. As a practical matter, not so much. The courts can uphold cases of ‘reverse’ application if they reach them, but the courts do not make charging decisions.

                  You don’t see affirmative action programs trying to lighten the skin tone of the NFL, or recruit more male nurses, while STEM programs are under relentless pressure to bring in more women. People know what sort of violations of nominally neutral laws are safe, and what sort produce legal consequences.

                2. I read these comments and I take from them that there is broad agreement, amounting (because of assertions without evidence or explanation) apparently to religious faith, that the commerce clause was meant to be very narrowly interpreted and enforced. Somewhere, there must be more on that than what is in the Constitution, because that isn’t in the Constitution.

                  Can someone fill me in please, on where that comes from? Is it from earlier precedents, now overturned? Is it from some strained reading of the Federalist? Is it from a reading that founding era assertions that federal powers were to be strictly limited, meant that they were to be limited in effect, instead of limited in kind?
                  Why isn’t the power to regulate commerce straightforwardly a power to do everything which is necessary and proper to regulate commerce?

                  1. For starters, just off the top of my head, it was asserted that there was no need for a Bill of Rights by the Federalists (to counter the Anti-Federalists who didn’t want the Constitution) because they said that the powers of the federal government were such that it wouldn’t be able to infringe on rights.

                    From the Federalist Papers (not a “strained” reading to be sure), it’s clear from the beginning that the expectation was that the Commerce Clause wouldn’t be the broad catchall that it has become.

  8. How did the interstate commerce clause get to this point? I understand that Wickard codified an extremely far reaching definition, but how did the judges’ reasoning become so flawed in the first place?

    My limited understanding of the interstate commerce clause is that the founding fathers wanted Congress to be able to deal with states that try to issue tariffs against one another. To me, “among the several States” means “between the States themselves”, not commerce between individuals. I would like to believe the founding fathers didn’t mean that Congress can regulate any and all trade we do just because it crosses State boundaries. That’s an insane overreach that, by definition, regulates intrastate commerce as well.

    1. It got to this point due to “the switch in time that saved nine.” FDR’s Court packing proposal didn’t fly with Congress, but it did scare the Court out of enforcing constitutional limits on federal power.

  9. I think that looking at the strict commerce clause issue, shorn of political context, this is a closer call, and there is more justification for finding commerce jurisdiction, then Professor Somin’s analysis suggests.

    Under a very narrow interpretation of the commerce power, Congress has the power to prohibit assaults and crimes generally within interstate commerce itself, such as an assault taking place on a train or airplane moving between states.

    In expanding the commerce power to cover instrumentalities of commerce, I think the Supreme Court, rightly or wrongly, at least arguably expanded the commerce power to include ordinary crimes taking place within instrumentalities of commerce, not just within commerce itself.

    I generally agree with Professor Somin that the Supreme Court has expanded the commerce power beyond recognition in a way that removes limits on centralized government that were put in place by the founders, and those limits need better enforcing.

    But what I can’t do is start enforcing stricter limits whenever I’m faced with a law I might disagree with on other grounds. I have to apply the same limits and the same rules to all laws, like them or not. And under the Court’s current very expansive interpretation, this probably passes muster.

  10. […] Appellate Court Upholds Constitutionality of Federal Hate Crimes Act Conviction Based on the Commerc… Ilya Somin, The Volokh Conspiracy […]

  11. A law school exam question comes to life.

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