Unconstitutional Legislation Threatens Freedoms

May 7, 2007

Last week, the House of Representatives acted with disdain for the Constitution
and individual liberty by passing HR 1592, a bill creating new federal programs
to combat so-called “hate crimes.” The legislation defines a hate
crime as an act of violence committed against an individual because of the victim’s
race, religion, national origin, gender, sexual orientation, gender identity,
or disability. Federal hate crime laws violate the Tenth Amendment’s limitations
on federal power. Hate crime laws may also violate the First Amendment guaranteed
freedom of speech and religion by criminalizing speech federal bureaucrats define
as “hateful.”

There is no evidence that local governments are failing to apprehend and prosecute
criminals motivated by prejudice, in comparison to the apprehension and conviction
rates of other crimes. Therefore, new hate crime laws will not significantly
reduce crime. Instead of increasing the effectiveness of law enforcement, hate
crime laws undermine equal justice under the law by requiring law enforcement
and judicial system officers to give priority to investigating and prosecuting
hate crimes. Of course, all decent people should condemn criminal acts motivated
by prejudice. But why should an assault victim be treated by the legal system
as a second-class citizen because his assailant was motivated by greed instead
of hate?

HR 1592, like all hate crime laws, imposes a longer sentence on a criminal
motivated by hate than on someone who commits the same crime with a different
motivation. Increasing sentences because of motivation goes beyond criminalizing
acts; it makes it a crime to think certain thoughts. Criminalizing even the
vilest hateful thoughts–as opposed to willful criminal acts–is inconsistent
with a free society.

HR 1592 could lead to federal censorship of religious or political speech on
the grounds that the speech incites hate. Hate crime laws have been used to
silence free speech and even the free exercise of religion. For example, a Pennsylvania
hate crime law has been used to prosecute peaceful religious demonstrators on
the grounds that their public Bible readings could incite violence. One of HR
1592’s supporters admitted that this legislation could allow the government
to silence a preacher if one of the preacher’s parishioners commits a
hate crime. More evidence that hate crime laws lead to censorship came recently
when one member of Congress suggested that the Federal Communications Commission
ban hate speech from the airwaves.

Hate crime laws not only violate the First Amendment, they also violate the
Tenth Amendment. Under the United States Constitution, there are only three
federal crimes: piracy, treason, and counterfeiting. All other criminal matters
are left to the individual states. Any federal legislation dealing with criminal
matters not related to these three issues usurps state authority over criminal
law and takes a step toward turning the states into mere administrative units
of the federal government.

Because federal hate crime laws criminalize thoughts, they are incompatible
with a free society. Fortunately, President Bush has pledged to veto HR 1592.
Of course, I would vote to uphold the president’s veto.

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