The Pending Federal Hate Crimes Legislation – Part 1

     On April 29 the House of Representatives adopted a bill (H.R. 1913) entitled the "Local Law Enforcement Hate Crimes Prevention Act of 2009."  This legislation has been referred to the Senate Judiciary Committee for consideration.  The law would make it a federal offense to commit violence against someone because of the person's "race, color, religion, national origin, gender, sexual orientation, gender identity, or disability."  Is this law constitutional?  I will publish my opinion addressing that question in two parts, today and tomorrow.

     For over a century Congress has enacted a number of criminal laws protecting citizens against violations of their civil rights.  For example, immediately after the Civil War when the Ku Klux Klan began its reign of terror Congress enacted laws (now codified at 18 U.S.C. 241) making it a crime to

intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;

or [for two or more persons to] go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured.

     The Reconstruction Congress also made it a crime for any person acting under color of law to deprive someone of their rights on account of their being an alien or on account of race or color (18 U.S.C. 242).  More recently Congress has enacted laws making it a crime to discriminate against someone because the person is wearing a uniform of the armed services (18 U.S.C. 244) or to damage religious property or obstruct someone in the free exercise of their religion (18 U.S.C. 247).  The most recent federal criminal civil rights law to have been enacted is the Freedom of Access to Clinic Entrances Act (18 U.S.C. 248). 

     The proposed Hate Crimes law would be codified at 18 U.S.C. 249.  Section 6 of this law would make it a crime to commit an act of violence against someone on account of their "race, color, religion, national origin, gender, sexual orientation, gender identity, or disability."  Some persons have raised objections that this law is unconstitutional – here is a posting by Robert H. Knight at Human Events.com setting forth a number of arguments against the bill.  In summary, opponents of the bill raise three constitutional arguments against it.  They contend:

1.  Congress lacks power to enact such a law – instead this is a matter committed to the states;

2.  The law will interfere with freedom of expression, specifically the right of individuals and organizations to speak out against homosexuality;

3.  The law offers "special treatment" to certain categories of individuals – crimes against gays or blacks or women will be treated differently than crimes against other persons. 

     Each of these arguments is addressed in turn.

1.  The Power of Congress to Enact this Legislation

     As noted above, Congress has enacted criminal laws protecting people in their civil rights on many occasions when it has perceived a national problem that had to be addressed.  The rise of the Klan after the Civil War, discrimination against uniformed members of the armed services after the Vietnam War, and in recent years church burners and violent anti-abortion protestors have all triggered federal legislation to address these problems.  No responsible person defends the commission of any of these hate crimes, and it is clear that the states have the power to outlaw each of these behaviors.  The only question is whether Congress also has the power to enact law of this nature.

     Congress' power to enact the Hate Crimes Act stems from two sources: Section 5 of the 14th Amendment and the Commerce Clause.  As a result the bill contains two sections addressing violence directed against different groups.  One portion of the law prohibits violence against persons based upon race, color, religion, or national origin whenever and whereever it occurs.  This portion of the law, like the laws that Congress adopted after the Civil War, is thought to be within Congress' power to enforce the 14th Amendment.  Another section of the law prohibits violence on the basis of religion, national origin, gender, sexual orientation, gender identity, or disability, but only if the person committing the violence traveled across state lines, used an instrumentality of interstate commerce (like a telephone or the mails), used a firearm that traveled in interstate commerce, the victim was engaged in commercial activity, or the conduct of the defendant otherwise affects interstate commerce.  This portion of the law, like the existing law protecting against the destruction of religious property, is designed to be within Congress' power to regulate interstate commerce.

     It would appear that the Hate Crimes bill has been carefully drafted to avoid the constitutional difficulties that the Violence Against Women Act ran into in the case of United States v. Morrison (2000).  In that case the Court found that Congress lacked the power to adopt a law prohibiting gender-based violence.  However, that law lacked any reference to interstate travel or interstate commerce.  The Hate Crimes Act corrects that omission and should be upheld as a proper exercise of Congress' authority under Section 5 of the 14th Amendment and the Commerce Clause.

     Tomorrow I will address the free speech and "special treatment" objections to the Hate Crimes Act.

Tagged as: constitution, First Amendment, freedom of expression, hate crimes, hate crimes act, hate speech, Local Law Enforcement Hate Crimes Prevention Act of 2009, Matthew Shepard Act