By Nat Hentoff
Why is the press remaining mostly silent about the so-called "hate
crimes law" that passed in the House on April 29? The Local Law
Enforcement Hate Crimes Prevention Act passed in a 249-175 vote (17
Republicans joined with 231 Democrats). These Democrats should have
been tested on their knowledge of the First Amendment, equal protection
of the laws (14th Amendment), and the prohibition of double jeopardy
(no American can be prosecuted twice for the same crime or offense). If
they had been, they would have known that this proposal, now headed for
a Senate vote, violates all these constitutional provisions.
This bill would make it a federal crime to willfully cause
bodily injury (or try to) because of the victim's actual or perceived
"race, color, religion, national origin, gender, sexual orientation,
gender identity or disability" - as explained on the White House Web
site, signaling the president's approval. A defendant convicted on
these grounds would be charged with a "hate crime" in addition to the
original crime, and would get extra prison time.
The extra punishment applies only to these "protected classes." As
Denver criminal defense lawyer Robert J Corry Jr. asked (Denver Post
April 28): "Isn't every criminal act that harms another person a 'hate
crime'?" Then, regarding a Colorado "hate crime" law, one of 45 such
state laws, Corry wrote: "When a Colorado gang engaged in an initiation
ritual of specifically seeking out a "white woman" to rape, the Boulder
prosecutor declined to pursue 'hate crime' charges." She was not enough
of one of its protected classes.
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Corey adds that the state "hate crime" law - like the newly
expanded House of Representatives federal bill - "does not apply
equally" (as the 14th Amendment requires), essentially instead
"criminalizing only politically incorrect thoughts directed against
politically incorrect victim categories."
Whether you're a Republican or Democrat, think hard about what
Corry adds: "A government powerful enough to pick and choose which
thoughts to prosecute is a government too powerful."
But James Madison, who initially introduced the First Amendment
to the Constitution, had previously written to Thomas Jefferson on the
passage of the Virginia Statute on Religious Freedom: "We have in this
country extinguished forever ... making laws for the human mind." No
American, he emphasized later, would be punished for his "thoughts."
However, doesn't the House "Hate Crimes Bill" state that
nothing in the legislation shall "prohibit any expressive conduct
protected from legal prohibition" - or speech "protected by the free
speech or free exercise clauses in the First Amendment"?
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Remember, however, as Kathleen Gilbert notes (LifeSiteNews.com)
that "free speech advocates have pointed out that under current U.S.
law, any action that 'abets, counsels, commands (or) induces a
perceived 'hate crime' shares in the guilt of that crime and is
But doesn't this new bill slip in an insistence that "evidence
or expression or association of the defendant may not be introduced as
evidence at trail unless the evidence specifically relates to that
In the definitive constitutional analysis of James B. Jacobs
and researcher Kimberly Potter (Oxford University Press 1998, still in
print), it is documented in "Hate Crimes: Criminal Law and Identity
Politics" that "In Grimm v. Churchill the arresting officer was permitted to testify that the defendant had a history of making racial remarks. Similarly, in People v. Lampkin,
the prosecution presented as evidence racist statements the defendant
had uttered six years before the crime for which he was on trial," as
specifically relating to the offense.
As for the 14th Amendment's essential requirement that no
person be denied "the equal protection of the laws," there is carved
above the entrance to the Supreme Court: "Equal Justice Under Law."
This legislation, certain to be passed by the Senate, will come
to the Supreme Court. I hope the Justices will look up at the carving
as they go into the building.
They should also remember that the Fifth Amendment makes clear:
"nor shall any person be subject for the same offence to be twice put
in jeopardy." But the House "hate crime" bill allows defendants found
innocent of that offense in a state court to be tried again in federal
court because of insufficiently diligent prosecutors; or, as Attorney
General Eric Holder says, when state prosecutors claim lack of
evidence. It must be tried again in federal court!
Imagine Holder as the state prosecutor in the long early stages of the Duke University Lacrosse rape case!
What also appalls me, as the new federal bill races
toward a presidential signature, is that for years, and now, the
American Civil Liberties Union approves "hate crimes" prosecutions!
I have long depended on the ACLU's staff of constitutional
warriors to act persistently against government abuses of our founding
documents. And these attorneys and analysts have been especially
valuable in exposing the results of executive-branch lunges against the
separation of powers in the Bush-Cheney years, and still under Obama.
Is there no non-politically correct ACLU lawyer or other staff
worker or anyone in the ACLU affiliates around the country or any
dues-paying member outraged enough to demand of the ACLU's ruling
circle to at last disavow this corruption of the Constitution?
And the president, former senior lecturer in that document at
the University of Chicago, should at least take it with him on Air
Force One, where there are fewer necessary distractions, and
familiarize himself with what the Constitution actually says.